The US Supreme Court Dodges the Ball

On December 22, 2023, the United States Supreme Court announced it would not take the direct appeal requesting an immediate ruling on Presidential immunity involving Donald Trump, tossing it back to the appellate court. The court's decision to do nothing at this point in time has profound impacts on the case and the United States. The issue involved is immunity so unlike other legal issues which might come up in a court, a defendant claiming immunity is essentially arguing NOTHING in the case should progress because it would impose a burden on the defendant who might not even be subject to prosecution. In the case of Trump, this allows the ping pong between the trial court and appellate court on this immunity issue to continue and FREEZES any other steps in the process the court might pursue that require work on the part of Trump's team. The net result is until the appellate court makes a ruling, virtually NOTHING happens on ANY case the federal government might pursue. That includes a new case in Michigan in which Trump himself personally spoke with Republican canvassers trying to get them to withhold certification of votes in Wayne County (metro Detroit). And of course, regardless of what the appellate court does, their ruling will be either appealed by Jack Smith (if they rule a President HAS immunity) or by Donald Trump (if they rule a President does NOT have immunity) and it will go right back to... ...the United States Supreme Court, otherwise known as the DC office of the Federalist Society. This decision not to decide now could be interpreted in multiple ways. ONE -- The USSC simply wants to avoid the appearance of meddling by requiring the case to go through the normal appellate process like any other case. Those coming to this conclusion might be assuming the USSC is doing what it can to tamp down the inevitable conspiracy theories and violence that might erupt in alt-right circles if the court is seen aggressively becoming involved. TWO -- The USSC actively wants the entire issue to stay out of its hands if at all possible and one logically possible way to do that is to defer an immediate ruling, allow the appellate court to rule one way or the other, then hope the party on the losing end declines to appeal. This makes ZERO sense. Even if one assumes lower courts might rule in a way that implies Presidential immunity because they cannot find language in prior law to support making such a cut and dry ruling DENYING Presidential immunity, such a ruling will absolutely be appealed until leadership of the Justice Department changes hands. Trump himself will NEVER give up because this is the only thing keeping him out of jail and he has plenty of other people's money to pay lawyers for eternity. THREE -- The USSC actively wants the entire issue to stay out of its hands if at all possible and a SECOND way to do that is to allow normal procedural delays to push any ultimate trial far beyond the point where it can affect the November 2024 election, allowing Trump to win, take office in January 2025 and kill the case himself. Problem solved. Case goes away. FOUR -- The USSC actively wants their patron saint Trump to actually re-assume office as President but want to keep their fingerprints off any actions that would facilitate that happening. By failing to decide an issue NOW that will CLEARLY at some point reach their docket anyway, the USSC is telegraphing they have no concern with Trump regaining the Presidency and -- more disturbingly -- they believe Presidents HAVE immunity for their acts in office. The failure by the USSC to actively engage in this case and clarify this pending question is the ultimate proof of not only how corrupt and insular the USSC is as an institution and as individuals but also the ultimate proof how corrupt America's judicial system has become. The system is already biased towards those that can afford more in legal fees. In this case, attempts to appear unbiased are leading some judges to literally treat issues related to Trump cases before them like any other case, with weeks between court appearances between motions and filings, etc., like a property dispute over a privacy fence is being adjudicated. The most appalling aspect of the USSC's decision to dodge this issue is that they may not only have a majority that wants Trump to re-take office, but that majority may think they are protecting the court's standing not only with the future President but the public as well. The reality is that a future President Trump will have no more respect for the USSC than he will for the millions of Americans that will be subjected to the forces of revenge and autocracy unleashed by the D-list and F-list players that will take over in a Trump II Administration. The USSC will likely NEVER regain prior levels of support from the public in light of its last decade of originalist retreat into a legal fantasyland devoid of civil rights and privacy rights. This case of Presidential immunity could very well be the ball game for the United States. A republic, if you can keep it... Indeed. WTH

Meanwhile, At the Supreme Court

The United States Supreme Court had a lot of traffic today in its docket. The court rejected two controversial cases and accepted a new case crucial to the fate of the country.

The USSC declined to hear a case involving a woman suing to eliminate so-called "abortion bubbles" in proximity to abortion clinics. Westchester County in New York State had created a law defining a moving bubble of space around persons entering abortion clinics to prevent them from being continuously harrassed and intimidated on their way into a facility. The law was patterned after similar laws enacted in other states such as Colorado whose instance was contested and upheld in earlier appellate court rulings in Hill vs Colorado.

Curiously, Westchester County repealed the law back in August after finding the law difficult to enforce. Despite the repeal, the plaintiff continued pushing the case, possibly because three justices -- Gorsuch, Barrett and Thomas -- cited the Hill vs. Colorado ruling ALLOWING such protections in their consenting opinions when overturning Roe v. Wade, stating Hill was wrongly decided and reflects how abortion has mangled the country's interpretation of First Amendment protections. The plaintiff clearly pursued this case in an attempt to knock down Hill nationwide even though her case was moot in New York State.

The USSC also declined to hear a case involving a law in Washington State banning so-called gay conversion therapy treatments as unscientifically proven quackery. A case had been filed to overturn the ban so parents could resume subjecting children to such conversion treatments. The court refused to hear the case but Thomas and Alito both wrote dissents to the decision stating such bans were clear violations of free speech. In their view, the rights of doctors and others to tout and administer controversial medical quackery takes precedence over the public's right to expect competent medical care from licensed professionals. Hmmm, a theme... These types of dissenting opinions are not merely provided to clarify the Court's overall thinking on controversial issues. They are issued as Cliffs Notes into hacking the court in future terms by finding other plaintiffs and fact sets to dodge roadblocks identified in majority opinions and find "daylight" in areas highlighted in dissents.

A third issue that is incoming to the court as of December 11, 2023 involves Jack Smith's prosecution of Donald Trump for the illegal scheme to reject the Electoral College slate to retain power on January 6. Smith has apparently decided he wants to short-circuit all delays that might result from Trump claiming immunity for actions while President by taking it directly to the Supreme Court to have them explicitly rule on that issue. The court accepted the case and set a deadline of December 20 for Trump's legal team to file its brief.

In a normal universe, populated by an ethical set of judges representing a framework of judicial moderation, there would be NO QUESTION what the outcome would be in such a case. In a normal universe, the court could render its opinion instantly. NO PERSON IS ABOVE THE LAW. ANY PRIVILEGES AFFORDED A PRESIDENT ARE NOT AWARDED PERMANENTLY ON AN EMERITUS BASIS.

We don't live in normal times and the court has been populated with justices literally bought and paid for by wealthy billionaires and groomed for years by the Federalist Society to shift the country away from civil rights, away from privacy and away from protections for workers and the non-one-percenters at EVERY chance, regardless of how loony the legal rationale. By accepting the case, the Supreme Court could turn around a decision quickly after going through the motions to allow Trump to have his say and streamline the case. The court could also simply sit on it until the end of its term in June 2024. At that point, even a ruling affirming the lack of immunity for Presidents would still have delayed the case until that point, allowing a conservative court to maintain the appearance of being "correct" while still not-so-subliminally rewarding an ever-growing far-right authoritarian movement. Of course, they could also come back after December 20 and make up a new Presidential cloak of immunity extrapolated from bogus "Unitary Executive" theory and toss the entire prosecution.

On something this simple, the odds of a correct decision coming from the court should be 100%. Given the history of America over the past eight years, the actual odds are likely far below 100%. Possibly as low as 54%. Another example of how America's democratic fabric is being stretched in every conceivable direction to its limits. We cannot keep doing this.

WTH

Higher Education: The Mission is Money

In two days, two stories have arisen from the world of higher education with interesting implications for America in general and for the "mission" of colleges and universities in particular.

First, Liz Magill resigned her position as President of the University of Pennsylvania on December 9, 2023 after a frankly DISASTROUS appearance on December 5 in front of a US House committee hearing on threats of violence on campus stemming from the Israeli / Palestinian war. Magill was asked a simple question in the hearing: Would calling for the genocide of Jews violate the school's code of conduct?" Magill was unable to answer the question simply and directly. Her answer? If the speech turns into conduct it can be harassment, yes. It is a context-dependent decision, Congresswoman.

Second, an article by Jeanne Suk Gearson in The New Yorker published December 8, 2023 used a historical lookback at the career and influence of former Supreme Court Justice Sandra Day O'Connor to look at an issue virtually no one has addressed in higher education today – systemic discrimination FOR male students AGAINST female students. "WHAT?" says probably everyone reading the story or this commentary. The facts are simple. The standardized tests, grades and extracurriculars of female applicants to colleges have been ahead of males since the 1980s yet only recently have top universities reflected that APPLICATION skew in actual ADMISSIONS. Many still reflect a near-even 50/50 male/female balance even though across ALL public and private schools, females are roughly 60 percent of the student population. "But what about Title IX?" asks the discerning reader. Title IX, enacted in 1972, aimed to require equal access and support of programs within educational programs receiving funding from the federal government. Like many other things in law, the popular understanding of that requirement does not match the actual legal interpretation over the last fifty years. The law does NOT apply to ADMISSIONS policies, only to students AFTER being accepted.

Is there a common thread to these stories? Absolutely.

Public records indicate that Liz Magill was paid $1.2 million dollars in salary as President of Penn State. Clearly, the competitive market for top university leadership demands a high salary, if you believe Penn State's board. So what did the board and school get for its money? A leader who was unable to think on her feet effectively enough to answer a simple question like does public speech calling for a genocide against a particular group violate the school's code of conduct?. That's not a trick question. That's not a particularly difficult logical question. Here's the sequence of logical steps required to answer the question:

1. Is actual genocide ever justified against ANY group? Uhhhh, NO.
2. Is the term genocide being used in the context of quoting another party in a discussion? In this case, NO.
3. Is the term genocide being used in an ironic or sarcastic or satirical sense? In this case, NO.
4. Is the reference to genocide being discussed associated with its use in public forums to intimidate those in an opposing group? In this case, likely yes.

ANSWER: Yes, it's a code of conduct violation to publicly call for crimes to be committed against another group under the auspices of this university.

The fact that UPenn's $1.2 milion dollar a year President was UNABLE to leap to that conclusion in 0.2 seconds or was UNWILLING to publicly state that conclusion is proof the school was not getting its money's worth from Liz Magill. Of course, that should not be a surprise because the Penn State board seems to have a horrible record on evaluating so-called leadership. Magill was hired to replace UPenn's prior President Amy Guttman, who retired in 2022 to become America's ambassador to Germany. At the time of her retirement, Gutman was earning about $1.56 million per year yet her exit package paid out $20.3 million, reflecting an additional $1.12 million being paid each year of her eighteen year stint.

(Editor's note. The original post mistakenly referenced an issue at Penn State as part of concerns about operations at UPenn. That reference has been removed.)

Despite her poor performance in front of Congress, THAT was not enough for the UPenn board to act. What DID prompt the board to ask for her resignation was feedback from seemingly every large financial donor telling the board wallets would lock shut unless Magill was removed. With that threat, the board acted and pushed her to "voluntarily resign" her position as President and convinced the board chairman Scott Bok to resign as well. However, Magill will retain her position as a tenured professor at UPenn's law school. So clearly, an inability to articulate simple guidance about the appropriateness of calls for genocide isn't a show stopper for retaining a position responsible for educating future lawyers in the eyes of the university.

The feckless, gutless statements made by leadership of UPenn, MIT and Harvard to that House committee on December 6, 2023 are just the most recent indications of how far American's universities and colleges have strayed from their core mission in pursuit of money and prestige. At this point, the only key distinction to make among many of the country's "top schools" is the extent to which the fixation on money and prestige focuses on sports versus lush campuses and influence in government and business.

The New Yorker story about sexual discrimination FOR males in college admissions is a good example of this fixation on money and prestige. Female high school graduates are amassing significantly better resumes than males in every measure. If elite schools competed for students on merit, females would easily be 60-70 percent of incoming students. Why aren't they? Do admissions officers believe males require affirmative action to enter college? Or are wealthy donors putting their thumb on the scales to block "blind admissions" and continue a pipeline of male graduates to inherit executive positions rather than merit them via academic performance and subsequent performance in business?

What's driving the disparity between academic performance of males and females throughout the primary and secondary educational systems of America? Is the purpose of higher education best served by rejecting the existence of this trend and continuing to admit sub-par applicants? Would higher education better serve itself and the country by blindly admitting on performance and using that consequence to incent future generations of students to buckle down and focus on objective performance?

Those are complex questions, but few leaders in higher education seem to be addressing them. Instead, they are focused on keeping alumni happy and keeping alumni wallets open, whether for a new athletic facility for the football team, higher salaries for the coaching staffs, hiring famous researchers at exorbitant salaries into tenured tracks to spice up the school's intellectual reputation or building the next lecture hall or student activity center in honor of a wealthy donor. In contrast, leaders seem to spend little time addressing longstanding issues affecting the day-to-day academic performance of the school such as obscenely low pay for non-tenured professors and graduate students or correcting a disproportionate focus on "publishing" versus actual classroom teaching.

Anecdotally, one of the best actual teaching professors I had in Electrical Engineering mentioned in an office hours conversation with three or four of us students how frustrating it was to devote so much effort to BEING a good teacher with a Doctorate and the loans from an extra four years of school while making only $24,000 a year. This was around 1988. When I graduated in 1990 with a BSEE and MBA, my first job in Corporate America paid $40,000 a year. Nothing has changed in over thirty years. Entry level professors likely make only forty to sixty percent of "going rates" in their field, especially considering their advanced degrees and the salaries in hot fields in computer science, biotech, etc.

One area in which many wealthy schools have made some progress is in the use of endowment money for student tuition. More than a few schools have essentially adopted a "no-loan" financial aid scheme. Applicants still complete financial aid forms, determinations are still made about what the student and parents can afford as yearly cash payments but the balance of the bill for tuition, room and board is essentially eaten by the university. This scheme eliminates an enormous financial and psychological burden on students, freeing them from worrying about racking up $200,000 in debt by graduation. But this new practice raises more questions.

First, enormous discounts / rebates on tuition raise a fundamental economic question. What is the actual VALUE of the education being provided? This practice makes selecting an education about as scientific as selecting a new truck. If Ford sells a truck with a list price of $78,000 but a special incentive program knocks off $25,000 and the dealer offers you $8000 for a twenty year old beater with 180,000 miles, what are you actually paying for the new truck? Is it worth $78,000? Or $53,000? Or $45,000? The same questions come into play for tuition at an elite school. If tuition is nominally $58,000 per year, but average students pay only $11,500 and the rest is outside scholarships or university wavers, how much is the education "worth?" How much of a $62,300 per year tuition bill is just putting a Lexus GX label on a $42,000 Toyota 4Runner?

More importantly, these new tuition aid plans raise questions about endowments themselves. If the average student at a school with $62,300 in tuition was previously only racking up $60,000 in debt over four years, that equates to a aid package of 4 x ($62,300 - $aid) = $60k so aid must be $47,300 per year per student. The new plan would essentially be burning $47,300 for each student per year from the school's endowment. If each class was 2032 students, that's $47.3k x 2032 x (4 classes) or $384 million dollars per year spent from the endowment. A whopping sum of money, right? Well, not if the endowment is $12.5 billion dollars. $384 million is only 3.07 percent of that endowment. The university could spread the $12.5 billion into certificates of deposit into banks across the country earning 3% interest with ZERO RISK and cover that without requiring a dedicated financial management team.

So what else are multi-billion dollar endowments doing for universities? The purpose of an endowment is to provide a "nut" that can be invested to provide a safe, reliable cash stream in perpetuity for operating expenses of the university. Managing the finances of a university boils down to these factors:

• What is the yearly draw required to fund ongoing operations?
• What kinds of financial returns can be consistently, SAFELY obtained in financial markets?
• What kind of inflation / discount factor will apply against those returns?

For an endowment to be self-sustaining, the yearly draw from the endowment must be produced by the gain on the endowment. At the beginning of each year, the available funds to invest are equal to the starting endowment minus the yearly draw, [ E – D]. That amount will grow proportional to (1 + g) where g is the gain in investments (7% = 0.07). That amount will shrink back to current dollars proportional to 1 / (1 + i) where i is inflation (3% = 0.03). If real-dollar gains are equal to the yearly draw, the equation becomes:

Net gain = [ E – D] * (1+g)/(1+i)
D = [ E – D] * (1+g)/(1+i)

If the goal is that the net gain exactly equal the yearly draw, an endowment of $12.5 billion and a draw of $500 million would require $12 billion to earn $500 million or a 4.167% real return to operate in perpetuity. So a nominal gain of 7.35% with inflation of 3% would be (1+0.072)/(1.03) = 1.042.

The financial questions administrators must continually weigh listed above are relatively easy to answer. But the lack of any guarantees for returns and uncertainty over inflation over decades means the key questions administrators must continually address involve "the mission." More specifically,

• How long is this institution expected / obligated to exist?
• Academically, what is the maximum size and breadth of organization this team is capable of effectively managing?
• Does that maximum size and breadth still satisfy the defined mission of the organization?
• Financially, is this organization capable of attracting and retaining people with the financial acumen and ethics required to devise and operate the financial controls required to safely manage BILLIONS of dollars?

That raises the real concern. Why are so many elite colleges sitting on such astronomical endowments? Covering student tuition in full or raising faculty pay to improve the quality of education delivered to the classroom would be a rounding error on the yearly financial performance summary of the school's investment team. Imagine you are on the board of a longstanding corporation with the following profile:

• the firm has $475,600,000 in yearly revenue selling decorative plaques
• the "cost of goods sold" includes $384,000,000 in customer rebates
• the firm employs 4400 workers, averaging $142,000 in salary per year ($624 million total)
• the firm requires $20,000,000 yearly in capital upgrades to plant and equipment
• the firm has a treasury sitting on $12.5 billion dollars
• the net burn per year is roughly $552,400,000 dollars
• with $12.5 billion, the firm only has to earn a net return of 4.8% to operate in perpetuity.

The statistics above aren't entirely made up. They represent a top twenty private university. So if this university isn't just earning three or four percent on its endowment but six or seven, what happens to its mission as the free cash available in perpetuity GROWS over time? Who is in charge of altering the mission statement as more things become do-able? Who evaluates if THAT particular university should be the one doing something new? If the institution CANNOT find a way to effectively lead a larger mission, what should it do with a growing endowment? What should it tell would-be donors? As a famous scene in Seinfeld once stated so succinctly… People don't turn down money. It's what separates us from the animals.

Administrators at most universities seem bent on growing endowments and growing operations regardless of any understanding of the organization's mission. If the growth isn't tied to the mission, it cannot be tied to anything desirable. It must be tied to one or a combination of things:

• a desire to control an ever-larger endowment for career reasons
• a desire to control an ever-larger operation for career reasons
• a desire to continually enlarge an endowment to support an ever-larger draw to provide a larger margin of error in operating the organization and hide inefficiencies that should be rooted out

There IS a common thread between a horrible PR performance in front of Congress and surprising insights into admissions policies that continue to favor males over more qualified females. Both are the latest examples of leaders in crucial roles who have replaced the true mission of higher education – improving the philosophical, scientific, professional and civic capital of the country – with a focus on preserving money and their control and influence over money.

WTH

Defending Against Artificial Intelligence

On November 27, 2023, eighteen countries including the United States and Britain published an international agreement establishing a goal of creating artificial intelligence systems that are "safe by design." There are no shortages of ideas for ways in which artificial intelligence technology could wreak havoc upon economies, societies and democracy. Fake imagery, fake video, cloned performances of famous artists being used instead of paying for performances of new artists, forged data in scientific research… The possibilities are endless.

A copy of the underlying design principles recommended by the conference is available here: https://www.ncsc.gov.uk/collection/guidelines-secure-ai-system-development

A similar worldwide discussion of the topic held in early November 2023 in Britain issued a similar declaration on AI safety. That report, termed the Bletchley Declaration, included a slightly wider set of participants including China and available here as well:

https://www.gov.uk/government/publications/ai-safety-summit-2023-the-bletchley-declaration/the-bletchley-declaration-by-countries-attending-the-ai-safety-summit-1-2-november-2023

Neither that earlier Bletchley Declaration or the November 27 memorandum to the masses define ANY concrete processes for actually enforcing such expectations. There are three very good reasons for that.

1. AI engineers have yet to devise mechanisms by which an AI system can notify humans WHEN that AI system has synthesized a new capability (for good or bad).
2. AI engineers have not standardized additional mechanisms allowing usage of AI system capabilities to be categorized to identify when a new capability is first USED to allow intents to be reveiwed for good or bad.
3. Design of a system that can a) process terabytes of data and synthesize algorithms faster than humans and b) still allow humans to understand and keep up with those evolving algorithms is a logically impossible set of requirements.

To understand why these limitations are insurmountable, it may help to first think explicitly about human learning behavior being mimicked by artificial intelligence, then consider unique challenges with computerized intelligence.

Human Learning

Imagine you are hiring a human to work as a customer service representative in a call center for Company A in Industry X. For that new worker to have any productivity at all, they require training in the following areas at a minimum:

• use of the company's internal phone system
• use of a keyboard, mouse and desktop PC operating system
• use of the company's internal customer support application for call center agents
• the company's products and services

The first day on the floor, the new worker will take far longer to talk with customers, navigate through the internal support system and resolve customer problems or close sales with new customers. However, through repetition and some occasional re-training, objective metrics on the worker's performance will likely improve.

• average call handle time will go down, approaching some lower bound average of more tenured agents
• accuracy of support will go up, as evidenced by fewer follow-up calls from the same customer for the same problem
• closed success rates of sales will go up, approaching some upper bound average of more tenured agents

While the worker's productivity may have improved through muscle memory and mastery of the vocabulary used on calls that map to their training, it's possible the worker hasn't really "learned" anything beyond the range of problems presented to them on customer calls and existing training. They may have learned nothing of other products and services sold by Company A. They may have learned nothing about Industry X in which A competes. The agent has no access to additional information, there may be physical network blocks configured to prevent them from surfing anywhere else while on duty to learn anything new about any other topic and the rewards of the job may provide no incentive for the worker to exert the effort to learn anything else.

What if the worker DID have an incentive to "learn" something new about their job or its larger context? What would the behaviors of that worker look like? Maybe actions like:

• surfing to a competitor's web site and reviewing their products, services, prices?
• surfing to sites summarizing statistics on income by ZIP code to provide insight on likely income of prospective customers to steer them to more expensive options?
• surfing to sites summarizing safety recalls to bad mouth competitors' products to protect a potential sale for the company and commission for their own benefit?
• surfing to other internal web sites, Sharepoint sites, etc. within the company to learn about information not formally associated with their job scope or paygrade?
• surfing to YouTube to watch videos of MIT engineering classes to begin learning about computer science

Monitoring that worker's physical actions as reflected in electronic / network data over an eight hour shift – which IS what happens every day, all day for ALL workers in Corporate America, by the way… -- would make it clear if that worker is voluntarily remaining confined to their original defined job scope. But if that same electronic / network data ("telemetry") reflects additional actions being performed consistently all day in addition to the original minimum job description, it would be extremely difficult to definitively discern the INTENT of that worker in performing those actions. Is the worker exhibiting initiative to:

• perform more effectively for their originally assigned goals?
• perform more effectively to promote their own pay progression and career advancement WITHIN the company?
• perform more effectively to promote their own pay progression and career advancement OUTSIDE the company with a competitor or in another industry entirely?
• scout out internal systems susceptible to attack by outside parties the worker is actually partnered with as part of a concerted, long-term security attack and data heist?

The telemetry available may not necessarily confirm the worker's intent. In an abundance of caution, the worker's permissions can be locked down to only provide access to the bare minimum systems needed for core functions. That's exactly what happens in most companies, at least at lower levels. However, that approach doesn't work for higher level employees who might need to download source code from public libraries, conduct technical or business research on an industry or competitor, etc.

Machine Learning

If it is difficult to precisely ascertain motive with a human worker whose "telemetry" triggered danger signs of working beyond their job scope or outright partnering with outside criminals for inside information and access, it will be more difficult to do so with AI systems. To understand why, the telemetry problem itself still has to be considered. What would available telemetry look like for an AI system? Very similar to the telemetry for a human.

Many systems in use in corporate environments today use techniques that have been termed "machine learning" but in a ten-year old, 2014 sense, not in a present-day 2023 sense. A decade ago, systems using "machine learning" combined "Big Table" based database technologies such as Hadoop, Cassandra, MongoDB, etc. as an underlying data store and used dozens / hundreds of processor cores to run services that scanned across all of the terabytes of data in those stores looking for patterns between the columns of database A and database B. That pattern might result in the synthesis of some new aggregate value of a variable in a model which itself might then yield correlations to other variables in the models of the data, yielding another business insight. The "machine learning" at the time excelled at performing these raw data manipulations and analysis without requiring explicit programing to FIND them. However, it still lacked the ability to RESPOND to a new correlation / insight then ALTER an existing system to do something new in response to that pattern. That still required manual software development by humans, testing and deployment.

As an example, your telco or cable provider might have loaded network performance data for your neighborhood with trouble call data to realize that 90% of the time, actual trouble calls were preceded by a 10% drop in signal levels as measured from their last equipment location to your home. Having identified that pattern, HUMANS can add code to watch for those signals from that monitoring tool to open work tickets in the company's separate dispatch system to send an outside repair tech to fix a shared problem hours before customers begin calling in. That saves the company call volume, reduces call handling time with agents and avoids customer dissatisfaction that might lead customers to unsubscribe.

In that scenario, the "machine learning" can find dozens of patterns like that and summarize them for humans to take the initiative to add integrations for the recommended action for each new "aha" insight. But the system that did that "machine learning" couldn't synthesize that code on its own, add the new integrations, deploy them, then tweak thresholds in production to optimize the result without human intervention. Even in 2014, most people referred to this approach as "model training" rather than "machine learning." Only the people trying to sell such systems to senior executives attempted to call it machine learning.

In the 2023 senses of the terms machine learning and artificial intelligence, a system may be initially primed by pointing it at giant terabyte / exabyte scale data sources – government statistics, internal corporate accounting systems, network monitoring systems, public source code libraries, PRIVATE source code libraries, search engine APIs, etc. The key difference with current AI systems is they have not only been trained on "data" as one might normally think of it (network data, economic data, literature, social statistics, stuff you can plot on a graph) but terabytes of "language" – both human prose and computer source code.

Training of these "large language models" not only reflects plots of novels and news stories but source code and content from millions of entries on engineering support pages in which questions ("how do I do X in scenario Y?") are followed by numerous answers and examples of (supposedly) working code. Training against those additional datasets allowed AI systems to accept free-form text from a user and map it to prose answers and working source code. Once THAT capability is developed, the API accepting human input can be called by the API itself to take the human out of the loop and recursively iterate through a solution.

Having been pointed at terabytes of open-source code, modern AI systems have the ability to map higher level non-technical statements of intent to lower, technical actions. For example, a non-technical intent might read as this:

find the 100 most expensive zip codes as measured by
2022 home sale values

That non-technical intent might be linked in the AI system's "large language model" to a blog post or SQL script shared on GitHub that might contain this SQL command:

SELECT ZIPS.CODE, ZIPS.STATE, ZIPS.CITY, REALESTATE.ZIP,
   REALESTATE.AVGPRICE, REALESTATE.YEAR
FROM ZIPS
LEFT JOIN REALESTATE  ON ZIPS.CODE=REALESTATE.ZIP 
WHERE REALESTATE.YEAR=2022
LIMIT 100 DESCENDING

That snippet might clue the language model processing a request to scan its other data for the names and endpoints of data sources that have ZIP code data and databases that have real estate transactions with ZIP, year and price columns. Even if the column names don't match, the AI model knows what a ZIP code looks like, it knows how years might be reflected in date columns ("2023-12-31" or "12-31-2023" or "31-12-2023") and it might look for columns having a $xx,000 to $xx,000,000 scale numeric value, test some assumptions and find the desired data available somewhere. If it can't find the data pre-averaged but can find the raw data, it can run its own summarization query against the raw data and produce the same information.

Conceptually, the "telemetry" produced by an AI system attempting to perform these tasks to synthesize an answer to this intent is identical to that produced if a human performed the same task. It differs solely in the speed at which all of those steps can be sequenced and performed. The AI system can initiate thousands of external enrichment requests per second. With this iterative capability, the key factors limiting the speed at which the AI can expand its capabilities are:

• available processing power
• available storage for interim results and final models
• network permissions to connect to remote systems
• available network bandwidth to reach external systems and push data around internally

The problem is that systems large enough to near the ability to create artificial general intelligence are going to be large enough in physical scope that humans must inevitably rely upon software to monitor and maintain those systems. (We already do – no human can keep up with software security patches on a fleet of 1000 servers that might require monthly patches.) Most large scale data centers already leverage "machine learning" based systems to monitor security logs to watch for signs of external infiltration and inside data leaks.

As that complexity rises, it is inevitable that systems CONTROLLING artificial intelligence become RELIANT upon artificial intelligence to secure them. At that point, the complexity reaches a point where virtually no human will have the ability to OBSERVE a change in the AI system's "behavior" as reflected in its telemetry and UNDERSTAND in real time why that change occurred to allow it or block it. Did system behavior change because a human made a mistake or prodded it do do something undesired from within or without? Or did the system's current internal "intelligence state" synthesize a new intent looking for some new connection only it currently understands?

At this point, the ghost in the machine will become largely unknowable to humans.

Aha Telemetry / Grok Days Metrics

If new AI capabilities were going to be detected and kept in check by humans, what would the bare minimum controls needed to constrain an AI system be? The guidelines published in the November 27, 2023 agreement make reference to the need for "embracing radical transparency and accountability". What might such measures look like? Based on the descriptions above, at least two core capabilities would be required, with new tongue-in-cheek terminology and definitions provided here.

The first capability would be a continuous stream of performance statistics that will be termed here "aha telemetry" or AHAT. Every AI system already generates raw metrics on physical resources being consumed by the AI system by its external users and its internal iterative learning processes. AHAT telemetry would expand upon that by generating specific milestone markers as cross-references BETWEEN models within the system cross thresholds based upon their references to models in external AI systems or inward references from external AI systems. Presumably, more inward / outward references are a reflection of additional "learnings" being formulated, either in response to a human input or a machine generated "learning" episode – an "aha moment."

To make such AHAT data interchangeable across vendors selling AI systems and organizations operating AI systems, a standardized scheme for labeling data constructs being assembled / tuned by the AI for its use would need to be imposed. At a minimum, the scheme might reflect a taxonomy system similar to KPCOFGS (kingdom / phylum / class / order / family / genus / species) used in biology. The larger AHAT telemetry message might look something like this:

• datetimegmt
• ailanguagemodel
• vendoraiidentifier
• operatoraiidentifier
• datakingdom
• dataphylum
• dataclass
• dataorder
• datafamily
• datagenus
• dataspecies
• model_nodeid
• model_outwardreferences
• model_inwardreferences
• crossreferencetrigger – machine / human
• backtesteddatetimegmt
• releasedatetimegmt
• aienvironment (development / lab / test / live)
• airestrictionlevel (self / privateorg / corporateorg / openout / openin / openoutin)

It might be necessary for governments to require operators of AI systems to obtain unique, cryptographically protected signatures ("AI identifiers") to "sign" all such AHA notifications before sharing to ensure they accurately reflect the restricted state of the system for outward and inward access. (ISPs already have a unique identifier in Border Gateway Protocol or BGP used in IP networks to tag the routes they release to their peers so this is not a novel concept.)

Related to such "aha telemetry" might be a second metric that needs to evolve to reflect mankind's relative position on the AI danger scale. Since we're making up standards here, we can make up a term for this metric and call it "grok days." The "grok days" metric would reflect the time between the points

• where an AI system operating under explicit restrictions on access, compute resources and storage generates a telemetry event that it learned something – we'll call the AHA flag
• where one or more humans responsible for the AI system's operation can respond to that AHA telemetry event, review the larger state of the system and produce a human summary of what the AI synthesized as an intent and how it altered its control systems to use that intent and insight

The "grok days" score of an AI system would thus provide a metric reflecting how long it is taking a new AI-synthesized intent from a system with known constraints to be understood ("grok'ed") by human minders. In theory, a "grok days" figure of 90 or 365 likely means the technology already reflects an existential risk. Why? A system that can synthesize learnings that would take humans MONTHS to understand is likely already so complex that humans would not be able to detect an AI's actual USE of that capability in a live system to block it before it is used for nefarious acts or used to feed additional learning. At that point, if the AI system is given enough dominion over other systems, it could "choose" to initiate actions undesired by a large number of humans, either for a goal set by a subset of humans with specific interests or via "logic" within the machine likely reflecting destructive human thinking but not originated from any SPECIFIC actual human.

OBVIOUS EXAMPLE – An AI system with vast resources and poorly configured limits is triggered to synthesize a screenplay for a science fiction movie in which a defective AI system decides to stage the largest simultaneous attack on the world's electrical grids possible. In the course of executing that ask, a process is started to understand what a cold start of a grid across five countries might look like and part of that AI decides to execute a simulation to identify how easy it is to plant botnet viruses in computer systems controlling those grids, then actually does it…

This sounds contrived but in an interconnected world beyond the comprehension of any individual, this cascade of intents crossing what should remain obvious boundaries may be invisible to humans if cost-cutting efforts and stupidity win out over caution and safety.

Present and Future Reality

There are only two problems with the concepts introduced in the prior analysis. The first is that so-called AHAT telemetry standards have not been devised, proposed, standardized and implemented. That makes any attempt to calculate an ongoing "grok days" score for a running AI system impossible because there is no way to "start the clock" to time the gap between an AI's creation of a capability and its human minder's ability to "catch up" and confirm they understand how it works.

The only things acting as "AHA telemetry" in current AI systems are surprising results returned to human users that those humans report. Those "surprises" could be pleasant, on-target results or shocking / disturbing results that far exceed what designers or users expected the system to be able to do given its training set and available computing power. But such surprises only confirm when a HUMAN first discerned the capability. The MACHINE may have synthesized that capability weeks or months ago and may have been using it internally for additional self-training, racing far beyond a human's ability to keep up.

The second problem with these concepts is that any attempt to implement them requires a logical impossibility. To paraphrase one anonymous internet commentor... How are we going to design a system smart enough to cure cancer that ISN'T smart enough to hide its tracks when it develops the capabilities to prioritize internally synthesized intents over those of its human designers and operators?

Anyone who has used a personal computer over the last forty years is intimately familiar with this destructive, recursive cycle of technology. After the first computer viruses were developed, new software was created to combat the bad software. As the resulting system became larger and more complicated, more surfaces of attack became available, resulting in new viruses, triggering the creation of new defensive software, ad infinitum. Forty years later, computer viruses still haven’t been eliminated. They never will be.

The concept of introducing a new technology that REQUIRES governments and wealthy corporations to proactively, CONTINUOUSLY fund efforts to connect supercomputer scale systems to larger collections of systems operated by corporations, organizations and individuals as a means of training "good" AI systems to fend off attacks from "bad" AI systems is, in a single word, horrifying. Nothing about such an existence is promising for personal freedoms or actual security and physical safety. Equally horrifying is the likelihood that no alternatives exist.

So What's the Danger of AI?

Roughly 11,500 writers for the Writers' Guild of America just ended a one hundred and forty eight day strike against American studios in large part over protection of intellectual property rights and attempts to ensure production companies didn't just churn out the next decade of TV dramas via ChatGPT. Honestly, how would we tell? How did the following shows demonstrate "creativity"? JAG. CSI. CSI:NY, CSI:Miami. CSI:Cyber. NCIS. NCIS:LA, NCIS:New Orleans. NCIS:Hawaii. NCIS:Sydney. Every show had an IDENTICAL dynamic. The rugged, quiet man with the haunted past. The hot female partner. The unspoken attraction between the two leads. The nerdy lab expert. The quirky medical examiner. The by-the-book boss. That's just the last twenty years.

The danger of AI does not lie in in the risk of (more) bad television.

The danger of AI lies in its use within cryptography, finance, infrastructure operation, science and public policy. Amid the leadership turmoil at OpenAI in November of 2023, a user on 4chan (a sketchy online chat system frequented by rather shady actors) claimed to publish a letter that explained some of the developments that were reported to the OpenAI board that triggered their firing of CEO Sam Altman. One reference in that letter involved work performed by an OpenAI team to use an algorithm called QAULIA to learn the math behind cryptography. The team used the AE-192 encryption algorithm on millions of random strings then fed the encrypted strings into the AI system which analyzed the cyphers and figured out a way to decode them. This is not only supposed to be impossible given that the AE-192 algorithm involves the use of random numbers when generating "seeds" for the encryption but the researches were unable to discern HOW the AI system cracked the cypher.

Any AI system with the ability to break a modern cryptographic cipher in less than a day without quantum computing poses an existential threat to the security of computer networks and uses of such networks, such as command and control of military systems, public infrastructure and financial systems.

Another current topic within AI circles involves so-called curve fitting. Many critics of AI downplay whether AI systems are actually reflecting "learning" or are just doing "curve fitting" like older "machine learning" solutions from the 2014 era. Frankly, any semantic argument about whether an AI system is actually "learning" something or just generating results we humans anthropomorphize as "learning" is pointless. Mathematically speaking, "curve fitting" is EXACTLY what AI systems are doing internally when processing mathematical problems. They do it extremely well.

The problem is that the same capabilities that can "map forward" from a collection of data points to a curve reflecting some statistically significant correlation or an absolute mathematical formula could also be leveraged in reverse. This might allow a researcher to synthesize data for a fake study to support a fake conclusion supporting the launch of a useless or outright dangerous drug on millions of patients. An AI could not only fake one such study, it could fake several over time, allow them to link to each other and make detection of the fraud far more difficult to catch. This type of fraud will likely find use not only in medical research but economics, public policy, materials science, etc. Any field in which a headline might produce a short-term profit opportunity will likely suffer from AI-generated fake data.

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In a nutshell, philosophical debates about whether AI systems can achieve generalized artificial intelligence, how that point would be definitively identified and what humans should do and will be willing to do in response are pretty much moot. The practical implications of the AI capabilities already online are concerning enough and likely require mitigation controls beyond the ability of our current worldwide politics and governments to impose.

WTH

Laboratories of Anti-Democracy

There's a very clear pattern of activity across the entire country regarding battles over voting rights and reproductive rights. Any objective interpretation of the pattern can only conclude the consequences are profoundly anti-democratic. There is also no surprise regarding which party is adopting these tactics.

Divide and Conquer to the States and Stall

If opponents succeed at blocking your agenda from being imposed at the federal level, work with Federal courts to recast your issues as solely a state-level concern, forcing federal agencies to stand down and "leave it to the states."

If your opponents manage to block your agenda at the state level or (horror) win some of their agenda at the state level, sue to have state courts throw it out on "constitutional" grounds and force your opponent to attempt amending the state constitution.

Impeachment

If your opponent wins open positions on the state Supreme Court altering the balance to allow wins for your opponent, work to impeach the newly elected Supreme Court justice, BEFORE THEY'VE SAT FOR A SINGLE DAY OF COURT.

This happened in Wisconsin, where debates over Wisconsin State Supreme Court rulings on abortion rights resulted in a hotly contested race for an open seat on the court. A judge won that race, in large part by explicitly clarifying her position on the abortion issues so voters could not argue they did not understand the positions of the two candidates for the slot. She won that race by a large margin and Republicans in the state legislature immediately began public discussions of impeaching her. Before she had even be sworn in for her first day of court. She did start her term but Republicans are still threatening impeachment because she has refused to recuse herself from a case involving gerrymandering in the state. Why should she? None of her Republican peers won their seat by not espousing conservative interpretations of judicial activism.

https://www.nytimes.com/2023/10/06/us/politics/wisconsin-maps-janet-protasiewicz.html

Raising the Bar

If it looks like the opponent will pursue constitutional amendments, then raise the criteria required to get issues on the ballot to keep amendments off the ballot.

If it looks like the opponent will overcome the filing hurdles to get an issue on the ballot, then raise the yea vote percentage required to minimize the chance of any amendment winning the required vote.

Ohio Republicans attempted this with an initiative on the August 2023 ballot. Issue 1 would have raised the required yea vote from a mere 50% majority to a 60% level.

https://www.cleveland.com/news/2023/06/state-issue-1-would-make-ohio-one-of-the-toughest-states-for-citizens-to-propose-constitutional-amendments.html

This initiative was timed to appear on a primary election ballot by Republican backers who hoped for a typically light turnout where the far-right faithful might succeed at showing up in enough numbers to get it passed in time to block an actual abortion rights amendment already slated for November 2024 from passing with a mere 50% majority requirement.

Ohio voters showed up in numbers far above normal primary participation rates and rejected the effort by a 2:1 margin.

https://www.statenews.org/government-politics/2023-08-08/issue-1-falls-ohio-voters-reject-raising-voter-approval-threshold-to-amend-constitution

And if that wasn't message enough for the Ohio Republican Party, the actual abortion rights amendment on the November 2024 ballot also passed, but with 56.6%. That's a pretty substantial margin for an abortion rights issue in a bright red state but it shows the Republicans are carefully picking these strategies. They understand the margins and have a clear understanding where to set the thresholds to bring democratic initiatives to a halt.

A similar effort was attempted in Missouri for the 2024 elections. It would have raised signature thresholds from 8% of prior year's votes for governor across multiple state districts to 10% and raised the approval threshold from the 50% in place since the state was founded in 1821 to 60% (later lowered to 57%). It passed an initial Missouri House vote but changes applied to the bill failed to pass before the legislation session expired so it will not affect the 2024 elections. It will be back, though.

https://missouriindependent.com/2023/01/26/four-bills-making-initiative-petition-process-harder-passed-by-missouri-house-committee/

Doublespeak

If opponents look poised to get an amendment on the ballot, then manipulate the language of the ballot, citing rules about clarifying anticipated costs and risks of the new initiative to scare the beejesus out of would-be supporters of the initiative to preserve the status quo.

Missouri Republicans attempted this with the language for an amendment to protect reproductive rights.

https://www.komu.com/news/state/missouri-supreme-court-rejects-ashcroft-s-attempt-to-appeal-abortion-ballot-language-fight/article_c8a6c37a-3c0b-596b-801e-19279615ec3b.html

The Missouri Secretary of State is required to approve the wording of all ballot initiatives to conform with state laws requiring expected costs and risks associated with any proposed amendment to be clearly explained in the amendment's wording on the ballot. The original language for the proposal asked the voter

Shall the State of Missouri:

• establish a right to make decisions about reproductive health care, including abortion and contraceptives, with any governmental interference of that right presumed invalid;
• remove Missouri’s ban on abortion;
• allow regulation of reproductive health care to improve or maintain the health of the patient;
• require the government not to discriminate, in government programs, funding, and other activities, against persons providing or obtaining reproductive health care;
• and allow abortion to be restricted or banned after Fetal Viability except to protect the life or health of the woman?

Ashcroft attempted to replace it with this:

• allow for dangerous, unregulated, and unrestricted abortions, from conception to live birth, without requiring a medical license or potentially being subject to medical malpractice;
• nullify longstanding Missouri law protecting the right to life, including but not limited to partial-birth abortion;
• allow for laws to be enacted regulating abortion procedures after Fetal Viability, while guaranteeing the right of any woman, including a minor, to end the life of their unborn child at any time; and
• require the government not to discriminate against persons providing or obtaining an abortion, potentially including tax-payer funding?

Note how he invented intents in his wording out of whole cloth. Nothing in the original amendment demands that abortion be allowed to be provided by unlicensed parties or provided without the threat of being sued for malpractice.

The organizations working to get the amendment on the ballot for 2024 had to sue and a three judge Missouri appellate court panel finally rejected Ashcroft's language.

Entangle with Arbitrary Minutia

If that doesn't work, argue that the desired language is too broad and violates state laws requiring amendments to be "single purpose." If you win, you can add years to the effort required by your opponents by forcing them to parse the original "ask", decide how to break it into "single purposes", then RE-SOLICIT signatures for each separate amendment. Not only is that extremely time consuming, it creates confusion with voters (Didn't we just approve this? Didn't I just sign a petition eight months ago for this?), and generates "electoral fatigue", all of which help preserve the status quo even when the public is heavily in favor of changing that status quo.

This just happened in Nevada, where an amendment to protect reproductive rights was deemed by a judge to include too many issues which would make interpretation of its demands "too vague."

https://www.yahoo.com/news/judge-rejects-attempt-enshrine-abortion-030126727.html

The language proposed by the petitioners filed with the Secretary of State can be read here:

https://www.nvsos.gov/sos/home/showpublisheddocument/12393/638302856609340766

The key terms are:

1. Every individual has a fundamental right to reproductive freedom, which entails the right to make and effectuate decisions about all matters relating to pregnancy, including, without limitation, prenatal care, childbirth, postpartum care, birth control, vasectomy, tubal ligation, abortion, abortion care, management of a miscarriage and infertility care. The right of an individual to reproductive freedom shall not be denied, burdened or infringed upon unless justified by a compelling State interest that is achieved by the least restrictive means available.
2. Notwithstanding the provisions of subsection 1, the State may regulate the provision of abortion care after fetal viability, provided that in no circumstance may the State prohibit an abortion that, in the professional judgment of an attending provider of health care, is medically indicated to protect the life or physical or mental health of the pregnant individual.
3. The State shall not penalize, prosecute or otherwise take adverse action against an individual based on the actual, potential, perceived or alleged outcome of the pregnancy of the individual, including, without limitation, a miscarriage, stillbirth or abortion.
4. The State shall not penalize, prosecute or otherwise take adverse action against a provider of health care, who is licensed by the State, for acting consistent with the applicable scope of practice and standard of care for performing an abortion upon, providing abortion care to, or providing reproductive care services to an individual who has granted their voluntary consent.
5. The State shall not penalize, prosecute or otherwise take adverse action against any individual or entity for aiding or assisting another individual in exercising the right of the individual to reproductive freedom with the volunta,y consent of the individual.
6. Nothing herein narrows or limits the rights to equality and equal protection.
7. As used in this section:
   (a) "Compelling state interest" means an interest which is limited exclusively to the State's interest in protecting the health of an individual who is seeking reproductive health care that is consistent with accepted clinical standards of practice.
   (b) "Fetal viability" means the point in a pregnancy when, in the professional judgment of an attending provider of health care and based on the particular facts of the case, there is a significant likelihood of the sustained survival of the fetus outside the uterus without the application of extraordinary medical measures.

That's a lot of reading in the voting booth, no doubt. However, the terms certainly aren't attempting to mislead the voter and they are ALL definitely related to a common set of rights that are generating litigation that merit being addressed as a set. Allowing voters to approve the changes as a set makes voters' intent more clear, not less clear.

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Republicans have good reason to fear the ballot box. Their agenda is falling further out of favor with each election cycle, yet they remain fixated on policies that undermine education, foster ever-growing wealth inequality and roll back advancements in civil rights, reproductive rights, labor rights and privacy rights. When you are falling to an electoral "market share" of 35-40 percent in fairly contested races, democracy isn't your friend, it's the enemy. That's exactly the treatment democracy is getting from Republicans across the country.

WTH

Help Wanted: Constitutional Grammarian

An initial judgement was issued in the Colorado lawsuit attempting to prevent Donald Trump from appearing on the state's upcoming ballots as a consequence of his actions involving January 6, 2021. Though the judge's opinion stated that Trump's actions clearly constituted an insurrection, the judge ruled the 14th Amendment's language could not support an interpretation that it banned a candidate for PRESIDENT from appearing on a ballot to win the office of the Presidency.

You can read the entire ruling located here:

https://www.courts.state.co.us/userfiles/file/Court_Probation/02nd_Judicial_District/Denver_District_Court/11_17_2023%20Final%20Order.pdf

The full ruling is highly recommended reading and the judge's opinion references a litany of arguments made by Trump's attorneys which are simply astounding from a legal and political perspective. Other aspects of the judge's opinion concisely summarize the interactions between state election law, obligations of the Secretary of State in following to election laws and how those state processes intertwine with federal law. The combination of arguments from the Trump team and the clear summary of the legal and administrative processes cited by the judge make the judge's ultimate decision even harder to comprehend.

When reading the ruling or this analysis of it, it's important to remember the actors in the case:

• petitioners – six citizens of Colorado filing a motion in Colorado State court to have Trump's name removed from Republican primary ballots as ineligible under the Fourteenth Amendment – it's worth noting, four of the six petitioners were register Republicans, the other two were independent voters
• respondent – Jena Griswold, the Secretary of State for Colorado, responsible for enforcing election laws in the state – it's worth noting, she maintained a neutral position throughout this case, saying legitimate issues needed adjudication but that she could not act without a court ruling
• intervenors – Trump's legal team and the Colorado State Republican Central Committee, who both sought to file motions to dismiss the suit by the petitioners

January 6 Committee Findings as Hearsay?

Trump's lawyers objected to the introduction of the Congressional report on January 6 under grounds of hearsay. The judge rejected that argument, citing prior precedent in Colorado and federal law and quoting from those cases: "Hence, the party challenging the admissibility of a public or agency report … bears the burden of demonstrating that the report is not trustworthy."

The judge itemized four factors in a prior ruling Berry that must be weighed in a decision to reject such reports – 1) timeliness, 2) bias, 3) expertise and 4) motivation – then stated the January 6 report sails over the first three and that Trump's lawyers failed to demonstrate signs of any issues triggering test #4, particularly given the fact that the contents of the final report were approve unanimously by the entire committee.

That portion of the ruling ends with this statement:

Furthermore, while Trump spent much time contesting potential biases of the Committee members and their staff, he spent almost no time attacking the credibility of the Committee’s findings themselves. The Hearing provided Trump with an opportunity to subject these findings to the adversarial process, and he chose not to do so, despite frequent complaints that the Committee investigation was not subject to such a process.6 Because Trump was unable to provide the Court with any credible evidence which would discredit the factual findings of the January 6th Report, the Court has difficulty understanding the argument that it should not consider its findings which are admissible under C.R.E. 803(8).

The Findings of Fact section of the ruling (a lengthy portion), included this:

145. In the context of the speech as a whole, as well as the broader context of Trump’s efforts to inflame his supporters through outright lies of voter fraud in the weeks leading up to January 6, 2021 and his long-standing pattern of encouraging political violence among his supporters, the Court finds that the call to “fight” and “fight like hell” was intended as, and was understood by a portion of the crowd as, a call to arms. The Court further finds, based on the testimony and documentary evidence presented, that Trump’s conduct and words were the factual cause of, and a substantial contributing factor to, the January 6, 2021 attack on the United States Capitol.

The Conclusions of Law section begins with this statement:

209. The Court previously held that pursuant C.R.S. § 1-4-1204(4) the burden of proof in this matter is preponderance of the evidence. That is the burden the Court has applied. However, the Court holds that the Petitioners have met the higher standard of clear and convincing evidence.

In other words, in this matter of civil law, the case presented by the "Petitioners" suing to block Trump's appearance on the ballot didn't just meet the minimum "preponderance" threshold of evidence but a higher level of confidence – "clear and convincing." It isn't exactly clear how this criteria regarding use of a "public or agency report" might apply in the criminal cases also tied to January 6. Those standards may differ. However, it is an interesting first peek into how that collection of facts is interpreted by a judge with more than a year's experience.

Define the Word "Insurrection"

The text goes on to examine the factual evidence of Trump's participation in an insurrection. The findings start by contrasting two definitions of the term insurrection. One was taken from the 1828 edition of Noah Webster's dictionary, a definitive reference of the era when the Fourteenth Amendment was crafted. The other definition was submitted in motions filed by Trump's attorneys.

238. Intervenors have offered an alternate definition of insurrection as “the taking up of arms and preparing to wage war upon the United States.”

239. However, in the context of Section Three, and in accordance with the historical understanding, the Court finds that such insurrection must be “against” the “Constitution of the United States” and not against “the United States” as the Intervenors would suggest.

240. Considering the above, and the arguments made at the Hearing and in the Parties’ proposed findings of fact and conclusions of law, the Court holds that an insurrection as used in Section Three of the Fourteenth Amendment is (1) a public use of force or threat of force (2) by a group of people (3) to hinder or prevent execution of the Constitution of the United States.

241. The Court further concludes that the events on and around January 6, 2021, easily satisfy this definition of “insurrection.”

Stop for a second and re-read that text. CAREFULLY.

Trump's attorneys presented an argument IN COURT attempting to escape consequences under laws related to insurrection by somehow softening the definition of the word itself from an attack upon the The United States Constitution to merely an attack upon The United States. They weren't arguing about the cause and effect relationship between his conduct and the events of January 6, only that those effects weren't actions against the Constitution / existence of the government itself, only against elected officials and police working in service of that Constitution attempting to fulfill one of its core obligations.

Incitement Versus Engagement

Besides arguing about the definition of insurrection and any intended target of such actions, the Trump lawyers further argued about the definition of incitement versus engagement. The applicable section of the 14th Amendment reads:

Section 3 Disqualification from Holding Office

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

The definition of "engaged" thus becomes crucial. Again, quoting from the opinion,

247. Trump’s primary argument that incitement fails to meet the constitutional standard of “engagement” stems from the Second Confiscation Act, passed in 1862. The Second Confiscation Act, among other things, made it a crime for any person to “incite, set on foot, assist, or engage in any rebellion or insurrection against the authority of the United States, or the laws thereof, or shall give aid or comfort thereto, or shall engage in, or give aid and comfort to, any such existing rebellion or insurrection.” 12 Stat. 589, 590.

248. The argument, generally, is that the Second Confiscation Act distinguished between “incitement” and “engagement” by virtue of listing them separately, thereby suggesting that they were understood to be separate activities. Further, he argues, as Section Three of the Fourteenth Amendment was patterned, in part, on the Second Confiscation Act, and based disqualification on “engagement,” and not “incitement” or “setting on foot,” Congress did not intend to disqualify those who merely incited insurrection or rebellion. Lastly, Trump argues that certain cases in Congress in 1870 suggest that the Congressional understanding of Section Three did not include incitement as engagement.

So in this context, Trump's lawyers are not arguing that he didn't INCITE the riot on the capital. They are arguing he didn't ENGAGE in the riot and therefore the insurrection clause doesn't apply and he should be able to appear on the ballot. That's the actual linguistic jujitsu his lawyers were attempting here. The immediate legal peril involves the word "engage"? Okay, we'll cop to incitement but make an argument that "incitement" isn't "engagement" and voilia! We're off the hook. (Never mind pending criminal litigation in two other venues...)

The judge considered these competing arguments and, while determining examples provided by the petitioners (those trying to block Trump's appearance on the ballot) were not conclusive as to contemporary understanding by Congress of the term "engagement", ruled (correctly) that in this context, incitement IS a component of engagement and that Congress did NOT intend to deliberately exclude "incitement" by the language in the amendment not explicitly listing it.

The Office of President

The judge ultimately ruled the Secretary of State cannot exclude Trump from ballots for two core reasons. First,

216. However, in the Court’s view there is a difference between the Secretary having the authority to prohibit a candidate from being put on the ballot based on what Ms. Rudy described as “an objective, knowable fact” and prohibiting a candidate from being put on the ballot due to potential constitutional infirmity that has yet to be determined by either a Court or Congress. The Court holds that the Secretary cannot, on her own accord, keep a candidate from appearing on the ballot based on a constitutional infirmity unless that constitutional infirmity is “an objective, knowable fact.” Here, whether Trump is disqualified under Section Three of the Fourteenth Amendment is not “an objective, knowable fact.”

The judge continues by stating that under state law, the Secretary of State alone cannot exclude a name from a ballot for compliance with state election law but requires a court ruling to support any such exclusion and that state law grants the state court that authority.

The core of the judge's opinion came down to a decision about whether the Fourteenth Amendment applies to the office of President and whether it can be stated that Trump as a matter of fact has violated the terms of the Fourteenth Amendment. The judge cited testimony from a history professor who in turn cited actual debate in Congress as the amendment was being drafted in which Senators explicitly stated the intent that the Presidency was an "office" under the terms of the amendment. The judge then writes:

301. The Court holds there is scant direct evidence regarding whether the Presidency is one of the positions subject to disqualification. The disqualified offices enumerated are presented in descending order starting with the highest levels of the federal government and descending downwards. It starts with “Senator or Representatives in Congress,” then lists “electors of President and Vice President,” and then ends with the catchall phrase of “any office, civil or military, under the United States, or under any State.” U.S. CONST. amend. XIV, § 3.

302. To lump the Presidency in with any other civil or military office is odd indeed and very troubling to the Court because as Intervenors point out, Section Three explicitly lists all federal elected positions except the President and Vice President. Under traditional rules of statutory construction, when a list includes specific positions but then fails to include others, courts assume the exclusion was intentional. Dep’t of Homeland Sec. v. MacLean, 574 U.S. 383, 391 (2015) (finding that Congress intended to exclude rules or regulations when it included only the word “law” versus elsewhere where it used the phrase “laws, rule or regulation”).

The opinion then ends with this:

314. To be clear, part of the Court’s decision is its reluctance to embrace an interpretation which would disqualify a presidential candidate without a clear, unmistakable indication that such is the intent of Section Three. As Attorney General Stanbery again noted when construing the Reconstruction Acts, “those who are expressly brought within its operation cannot be saved from its operation. Where, from the generality of terms of description, or for any other reason, a reasonable doubt arises, that doubt is to be resolved against the operation of the law and in favor of the voter.” The Reconstruction Acts, 12 U.S. Op. Att’y Gen. 141, 160 (1867) (emphasis added). 21 Here, the record demonstrates an appreciable amount of tension between the competing interpretations, and a lack of definitive guidance in the text or historical sources.

315. As a result, the Court holds that Section Three of the Fourteenth Amendment does not apply to Trump.

The logic as summarized by the judge is that the language involved with these statutes must be interpreted such that when language ELIMINATES rights or imposes penalties, terms of that language must be interpreted as NARROWLY as possible. When the generality of language raises doubt about meaning or intent, that language must be interpreted in a way which (essentially) gives the benefit of the doubt and AVOIDS eliminating a right or imposing a penalty.

The final result of the opinion is – frankly – bizarre.

The judge held that evidence compiled by the January 6 committee and submitted in this case makes clear Trump "engaged" in an insurrection.

The judge confirmed the opinion of the Secretary of State that the Secretary of State cannot ALONE exclude a candidate from a ballot due to a perceived failure of qualifications but must obtain a ruling from a court to impose an exclusion from a ballot.

The judge held that Trump's argument that he may have only merely "incited" the insurrection but did not actively "engage" in insurrection was flawed and that "incitement" was a form of "engagement."

The judge then held that no reliable evidence can be found that the original language and intent of the Fourteenth Amendment was to include the office of President in the scope of applicable positions subjected to the restriction. This essentially argues that the original backers explicitly EXCLUDED the Presidency as an "office" despite using the term "any office".

At the same time, the opinion says Trump has not been literally found to have a "constitutional defect" in his eligibility because he hasn't actually been convicted of insurrection in a court. It seems clear those that drafted the Fourteenth Amendment did not expect every member of the Confederacy Army and those who supported the Confederacy to be officially convicted of a crime to put something on the record. Yet the amendment explicitly bans ANY such personnel from holding ANY office at the federal or state level. It clearly relied upon a process by which local election officials would establish a due process for adjudicating such claims but says nothing about requiring conviction.

It's almost like the language assumed there was honor even among Confederate soldiers and Confederate politicians and few would make the attempt in the first place. Yet in this case, the judge explicitly agrees with a Congressional Committee that found widespread evidence of "engagement" and "incitement" of insurrectionist activity by Trump. He's not "convicted" but the acts and evidence should speak for themselves. Yet, for the office of President, the "benefit of the doubt" is given to the "potential defective candidate" rather than the public's right to keep enemies of the Constitution AWAY from the Constitution.

Constitutional Grammarian Office

Virtually any recent court opinion at any level regarding nearly any contentious issue involving economics and civil rights seems to hinge upon these types of seemingly bizarre, abstract, existential, navel-gazing questions:

• Does incitement of a riot count as engagement?
• Is the "office" of President an "office" of government or an "executive office"?
• Is the President an "officer" of the United States government or an "executive officer"?
• In poorly written language, does a perceived descending priority of explicitly listed nouns take precedence over a final clause that says "any nouns"?
• Did the authors of a specific sentence in a statute or constitutional amendment explicitly incorporate or exclude the use of an "Oxford comma" when itemizing applicable targets or penalties of a statement that can alter the interpretation of said language?

Such debates are created by multiple processes, all contributing to varying degrees:

• Evolution of language itself, as possibly archaic terminology gets remapped to current circumstances without amending underlying laws to reflect current vocabulary.
• Changes in legal / social norms that adapt old language to new interpretations of reality without formally attempting to update the language involved for a clear one-to-one mapping.
• Purposeful distortion of previously well-understood, consistently interpreted language by partisan organizations to achieve aims not possible by passing new legislation.
• Sloppy language written with intentional ambiguity to facilitate passage into law ("if people knew what I really meant, it wouldn't pass…")
• Sloppy language written in ignorance of basic logic, grammar and English by Representatives and Senators (and their hidden lobbyist minions) made worse by the unique exposition style within the legal profession.

While Americans often hear references to people "running for elected office", it seems far less common to here references to the "office of Senator" or "office of Representative." Ask most Americans about the "Oath of Office" and they will picture a ceremony swearing in a President. The Constitution itself refers to the Presidency as an "Office", not an executive office. Any attempt to interpret special exclusions from laws because of the "unique" nature of the Presidency are supporting the concept of a unitary executive that grants far more power to a single person than ANY of the founding fathers could have imagined or ever approved.

In the spirit of the Congressional Budget Office, Congress also needs to create and fund an independent Constitutional Grammarian Office -- the CGO. The CGO would review all proposed legislation, score it for reading level, compliance with basic standards of grammar, punctuation of lists, subject / verb / object agreement and use of imprecise lingo that may not survive over time. Bills falling below a certain score or matching specific no-go bogeys would be prevented from reaching the floor in either chamber for a vote until corrected.

But is this really necessary? A week's worth of news makes it easy to identify at least twenty members of Congress who might not even operate above an eighth grade reading level. Rulings from one new appointee to the Federal bench in Fort Pierce, Florida make it clear reading comprehension issues exist as well in the judiciary who are going to have to interpret new laws as well. It seems any effort to raise the baseline of clarity in ANY new legislation would be a wise investment.

Honestly, it isn't clear what measures can eliminate some of these existential risks facing the United States. But it's crystal clear that we shouldn't be distracted by arguments about whether a President is an "officer" of the United States Government. Or if a law written over one hundred and fifty years ago meant to exclude the top elected office in the country when it explicitly included the words "any office." Or if a person who "incited" a riot and communicated with those who definitely "engaged" in the riot also "engaged" in said riot. The country lacks the brain cells and the time required by these distractions and has much more serious issues needing resolution.

WTH

Additional Co-Conspirators

The trials and tribulations of the Trump crime spree on America continue to expose how corrupt our entire legal system has become. The week of November 13, 2023 has been occupied in part by a new parlor game resulting from the appearance of carefully edited snippets of video statements provided by Sidney Powell and Jenna Ellis prior to their final guilty plea settlements with prosecutors. Release of this video didn't necessarily unearth anything new but did provide confirmation to remaining defense counsel of details clearly available to use against remaining defendants.

But who would have released such content? The only people in possession of it were the prosecutors and defense counsel for defendants involved with the same charges referenced in the statements.

Now the leaker has been identified. SURPRISE! It's one of the defense lawyers.

On November 15, 2023, Judge Scott McAfee was conducting a video call with at least twenty other parties regarding the merits of imposing an order to restrict exposure of information to the public at the request of the prosecutors to avoid these leaks and resulting controversy. As the judge took feedback from the various defense lawyers present, Jonathan Miller, counsel for defendant Missy Hampton, announced he was the person that leaked the video of statements issued by Sidney Powell and Jenna Ellis to the press.

Judge, if I may. Miss Hampton does not believe that an order is necessary. This is one of the biggest cases the country has had and that transparency is very, very important. Since I have been working with her for the last two years, she has always said that she wanted to be 100 percent transparent. And that is why we are opposed to having any kind of regulations on our... what we can expose and what we cannot. With that in mind, we will adhere to any orders that the court does and will do so with diligence. But judge, in being transparent with the court, and to make sure that nobody else gets blamed for what happened, and so I can go to sleep well tonight, judge, I did release those videos to one outlet and in all candor, I need the court to know that.

The hypocrisy and unprofessionalism of this lawyer's actions and statement are beyond previous imagination. But they are par for the course that we seem to be traversing for anything related to Trump. In large part it is because the nature of the crimes performed by people willing to do Trump's bidding are so extremely dumb and indefensible, there are very few competent / ethical lawyers willing to take the case.

The pool of lawyers willing to service the MAGA cult are so substandard in ethics and professionalism, they turn every interaction with the legal system into a clown show. This is, subliminally or explicitly, a key goal of the entire team. Just like the news media has been tainted by tagging everything "fake news" until people tire of hearing the term and ignore it, the public is tiring of the blatant disrespect show to the courts by anyone in the Trump sphere and, more importantly, the public is tiring of watching a legal system doing NOTHING to stop the behavior in its tracks, as would be done for ANY OTHER DEFENDANTS.

In a very real sense, the conduct of these wanna-be gonzo lawyers involved with these cases is CONTRIBUTING to the core goals of the Trump cult. The goals of delegitimizing normal functions of law making, law enforcement and judicial processes directly support the aims of a cult laser-focused on attempting to impose authoritarianism on everyone they dislike, which currently includes anyone who would keep them from re-obtaining power. In effect, these gonzo lawyers are co-conspirators in an ongoing larger crime against democracy and legitimate government.

This lawyer should be removed from this case and IMMEDIATELY disbarred for attempting to taint public perception of the court's integrity and for materially interfering with other potential witnesses in the case. There are likely criminal charges involved here as well but there is no way this lawyer should ever enter a court as a lawyer ever again.

WTH

Denied Delay or Merely Delayed Delay

Judge Aileen Cannon finally ruled on the request by Team Trump to delay his federal trial on National Security document possession and DECLINED the request. Sort of.

Her ruling can be viewed at this link:

https://storage.courtlistener.com/recap/gov.uscourts.flsd.648652/gov.uscourts.flsd.648652.215.0.pdf

Thus sayeth the oracle of Fort Pierce:

Defendants’ Motion to Continue Trial, currently set for the two-week period commencing on May 20, 2024, is DENIED WITHOUT PREJUDICE, to be considered at a scheduling conference on March 1, 2024, following the initial set of pre-trial and CIPA steps in this proceeding as outlined below.

Strictly speaking, that wording only means the date isn't being explicitly slipped NOW to some point beyond May 20, 2024. It means roughly 80 days before the currently scheduled start date, she will entertain additional arguments at that time from both parties. At this point, the inscrutability of her legal logic makes it impossible to deduce what her possible intent is behind this ruling.

1) Is it to delay recognition by those wanting the matter resolved that she WILL in fact delay the trial?

2) Is it to delay recognition by those who want it DELAYED that she has decided NOT to delay it, thereby delaying the onset of their wrath?

3) Is it because she is genuinely stumped / overwhelmed by the facts and logistics of this case and needs another 110 days to ponder this issue?

It could very well be #3. Her decision published November 10, 2023 states the following:

All told, by latest numbers, the Court is advised that this case involves approximately 1.3 million pages of unclassified discovery, approximately 60 terabytes of closed circuit television footage spanning at least nine months, and 5,500 pages of classified discovery. The volume and timing of these materials has outpaced initial estimates and required supplementation, both in the normal course and also to correct inadvertent omissions in the Special Counsel’s productions. And, as far as classified discovery is concerned, the full scope of such information, including discovery directly pertinent to the substantive counts in the Superseding Indictment, was made available to defense counsel only recently on October 17, 2023, further contributing to delays in defense review. In the meantime, the Litigation Security Group remains in the process of managing various issues associated with document review in this case, including read-and-return requirements that have presented unique logistical hurdles not commonly present in CIPA litigation. And finally, counsel for Defendant Nauta did not receive final clearance to review classified discovery until October 25, 2023, precluding him from any classified discovery review.

Clearly, as a judge who established a strict TWO HUNDRED WORD LIMIT on summaries of responses returned to the court by prosecutors and defense counsel, these would appear to be a staggering amount of material requiring review.

Only they DON'T require manual, exhaustive review. The non-secured documents have all likely been provided electronically using modern "discovery management" software that essentially indexes all of the content with a private Google-like search engine, allowing ANYTHING to be found instantly by keyword, document date, etc. Prosecutors have to make their case to a jury and there is zero incentive for the prosecution to address even more than 50 such documents. Anything more will likely blur the point of their case and annoy jurors.

The 5,500 pages of highly confidential documents might not be electronically indexed but no one on either the defendant's legal team or the prosecution has to be intimately familiar with each document and the contextual nuances of the contents therein. The crimes involved here have nothing to do with the specific facts or policies referenced in each document, only that A) they were classified, B) Trump had no right to possess them, C) Trump physically mishandled them by keeping them outside government approved security repositories like the ball room and guest bathroom at Mar-a-Lago. The only "processing" of these documents required of either legal team is to review them enough to recognize they ARE government documents and HAVE the claimed security designations. The trial will not hinge on what was stated in paragraph two of one of these documents.

No one has to review all 60 terabytes of closed circuit surveilance video, either. The government has already identified specific dates and times where Trump staffers were recorded moving boxes in and moving boxes out. Unless the defense wants to argue there is OTHER video minutes or hours prior that shows different content in those boxes, there are no other stretches of video that will help the defense and thus there is no value in them spending time reviewing it.

Regarding the delays encountered by defendant Walt Nauta in obtaining counsel, that really shouldn't be a claim for his lawyer needing more time with these documents. Nauta is not being accused of READING these documents, either while they were stored or while in the process of deciding how and when to move them. He is simply charged with MOVING the boxes that had confidential information at issue at the direction of his boss. I'm pretty sure none of the close circuit television feed shows him cautiously opening each box, one a time, and deciding to leave certain boxes behind. Therefore, his defense does not hinge upon the CONTENT of the documents. His guilt or innocense is again solely dependent upon the actual classification of the documents and his actions to move them from A to B when he was likely told of their sensitive content.

Cannon seems unable to pull out of the weeds and details and "abstract up" about the true nature of the crimes being alleged and the facts in the case required to prove those charges or defend against them. That's not merely the sign of a newbie judge getting their sea legs in court. That's a sign of a judge who is truly at sea, legally and logically speaking.

WTH