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July 16, 2020

CAFE Insider Newsletter #80

Dear Reader,

A couple of further thoughts have been rattling around in my brain since my last note, where I gave some tongue-in-chief advice about leadership. For what it’s worth:

Leaders, like all people, have strengths and weaknesses. Some are better suited to certain challenges, less suited to others. There is the leader, for example, who can be a competent steward in times of stability and prosperity, but is easily overwhelmed by crisis. There is also the leader who is lackluster when things are going well, but shines in crisis. Voters distinguish these things, correctly or not. Winston Churchill, after all, was famously rejected by voters in peacetime after helping save the planet from fascism in wartime.

Consider what kind of leader appears to shine in a crisis. Often the qualities that attract praise in the most difficult times are ones that citizens otherwise might find off-putting. We may not appreciate the micro-managing, overbearing, bull-headed, autocratic control-freak in normal times. But in a full-blown crisis, especially an existential one, if the leader shrewdly manages public perception, people will cheer and they will follow. And if such a leader can temporarily suppress his natural narcissism in favor of conspicuous humility, the suffering populace may even swoon.

Let’s take three examples of leaders who I think have deep flaws, but who earned – rightly or not – high praise for the handling of major crises on their watch: Rudy Giuliani after 9/11; Chris Christie during Hurricane Sandy; and Andrew Cuomo during the Coronavirus pandemic.

Right off the bat, notice an experience these men share. Each was an aggressive head of a formidable prosecutor’s office: Giuliani, U.S. Attorney in SDNY; Christie, U.S. Attorney in New Jersey; Cuomo, Attorney General of New York. They know how to fight, and they also know how to make a case, legal or otherwise. (For purposes of this writing, assume we are talking about the prior Rudy Giuliani, who in my view has become an inexplicable and declining figure.)

All three also are well-known to have fiery tempers, strong wills, and epic egos. They are tart with their tongues, dismissive of dissent, and quick to retaliate against adversaries. They pick fights, and they play to win. They are all, in ways both different and similar, showmen. They love the stage and know how to use it. Each exudes an aura of self-righteous certitude in his positions, often bleeding into contempt for those who disagree. For these leaders, “It’s my way or the highway.”

Does any of that sound familiar? Do these descriptions remind you of anyone else? The Venn diagram for these three men and Donald Trump would be an interesting one. It is not a coincidence that two of them, Giuliani and Christie, have been close advisers to the President. Birds of a feather. Trump is a Showman, a bully, and the most extreme embodiment of a “my-way-or-the-highway” approach that we have seen in the White House. He prides himself on punching back; no target is beneath him.

And yet, notwithstanding this attitudinal overlap, there is a remarkable divergence between Trump and the other three men. The three men, at least during the height of the crises they handled, were showered with praise and dramatically improved their political standing. Trump has done the opposite.

In early May, Trump sat at a 49% approval rating. At the start of July, that number was down to 38%. In contrast, Rudy Giuliani’s approval rating went from 34% in early 2000 to 79% after his response to 9/11. Chris Christie’s approval rating went up 19% in the month after Hurricane Sandy. Governor Andrew Cuomo saw a 33% jump during the first month of the pandemic. As for how Trump fares against the doctor he is encouraging his staff to attack both openly and off the record? When it comes to handling the pandemic, 67% of Americans trust Dr. Fauci; 26% trust Trump.

There are myriad explanations for this divergence, including Trump’s lack of intelligence, expertise, rigor, focus, and concern. Also, he does not hire the best people. But there is something else, too. For all his focus on appearance and image and central-casting, Donald Trump not only doesn’t know how to handle a crisis, he also does not even know how to play the part of a leader confronting a crisis. He doesn’t even know how to pretend. He cannot and will not subjugate his narcissism for even a brief moment, though it would help the country and also his own popularity.

Three simple things he cannot bring himself to do, unlike the other three leaders mentioned above.

Take responsibility. Especially in crisis, leaders take responsibility. Boldly and explicitly. They take the fire aimed at others, accept blame for failures, weather incoming criticism with strength and equanimity. That is Leadership 101. That’s why during his COVID-19 briefings, Andrew Cuomo took a rhetorical page from Truman, at whose desk the buck stopped. Cuomo expressly accepted blame for the shutdown: “If someone is unhappy, somebody wants to blame someone, people complain about someone, blame me.”

President Trump, not so much. When asked in March whether he would accept responsibility for the failure in testing, he seemed downright puzzled by the question. He said, “I don’t take responsibility at all.”

Show empathy. Rudy Giuliani is not known for warmth and empathy; he did not hold regular town halls as Mayor and look into constituents’ eyes and say, à la Bill Clinton, “I feel your pain.” But on 9/11 he did. And we knew he felt our pain. It’s hard to forget what Giuliani said when asked about the expected loss of life. With anguish in his voice and on his face, he said, “The number of casualties will be more than any of us can bear, ultimately.”

President Trump? There is no evidence he has shed a tear for a single soul, though more than 135,000 Americans are now dead from the virus. When asked the most softball questions about what message he has for people suffering, he can muster nothing but self-congratulation and anger at the questioner.

Cooperate. Crises of the sort we are discussing are by their nature non-political. The terrorist attack, the hurricane, and the pandemic did not kill Democrats or Republicans. They killed Americans. Good crisis leaders – at least those who understand how to play the part – conspicuously avoid politics and show collaborative effort even with leaders in the opposing party. And so, as the Republican Governor of New Jersey, Christie praised President Obama after Hurricane Sandy: “The president has kept every promise that he made.” He even famously hugged the President, to the horror of some in Christie’s party.

Trump, on the other hand, has injected politics into every aspect of the pandemic and its response. He demonizes Democratic governors, while praising Republicans. He has even politicized the wearing of masks. He has done little to show the response should be above politics. It may be too much to expect Trump to literally hug those in the other party (especially because of Coronavirus), but the cold shoulder is not presidential leadership.

To be clear, I am not praising the three mentioned leaders in all aspects of their crisis response. Given the disproportionate rate of death in New York, especially at nursing homes, Governor Cuomo in particular will likely face a sharp reckoning about his decisions. But the contrast in basic leadership skills with Trump is striking.

Before the pandemic, I thought Trump was unfit. But it takes a uniquely unfit leader to be terrible in peace and prosperity and even more terrible in crisis.

My best,

Preet

 

On Thursday, Michael Cohen, President Trump’s former personal lawyer and fixer, was sent back to federal prison. Cohen was sentenced in 2018 to three years after pleading guilty to eight counts of tax evasion, financial fraud and campaign finance violations. In May, amid concerns around the spread of COVID-19 through prisons, Cohen was released to serve the rest of his term in home confinement.

At first glance, Cohen’s return to prison seemed like a textbook violation of the terms of his release. He had been photographed just a week earlier out to dinner with his wife and friends at an upscale Upper East Side restaurant, a decision that multiple news outlets speculated would cost him his freedom. But Cohen’s return to prison instead had to do with his refusal to sign papers that would have prohibited him from engaging with the media or publishing a book.

The document Cohen refused to sign, a “Location Monitoring Program Participant Agreement,” is a standard one for a felon serving home confinement. But this particular agreement contained a highly unusual provision:

No engagement of any kind with the media, including print, tv, film, books, or any other form of media/news. Prohibition from all social media platforms. No posting on social media and a requirement that you communicate with friends and family to exercise discretion in not posting on your behalf or posting any information about you. The purpose is to avoid glamorizing or bringing publicity to your standing as a sentenced inmate serving a custodial term in the community. 

Cohen’s lawyer, Lanny Davis, along with a host of constitutional scholars, have called the agreement a violation of Cohen’s First Amendment rights. The timing also raised questions of political influence at the Department of Justice. Just a week prior, Cohen had announced that he was nearing the completion of his tell-all book, one which would presumably include damaging information about his former employer, the President of the United States. (Cohen famously facilitated the hush payment of $130,000 to pornstar Stormy Daniels).

According to Geoffrey Stone, the former Dean of The University of Chicago Law School: “The government’s action is clearly designed to suppress expression the government disapproves of and definitely does not further an important or substantial government interest related to Cohen’s incarceration. It is thus patently unconstitutional.”

The government’s attempts to silence Cohen bring to mind a slate of statutes that have long drawn the ire of First Amendment scholars and activists: so-called “Son of Sam” laws designed to prevent convicted felons from profiting from their crimes.

The term “Son of Sam” comes from the serial killer David Berkowitz of mid-1970’s New York City, who referred to himself with the moniker in a note left with one of his victims. After Berkowitz was caught and convicted, he was offered a lucrative deal from a publishing house to sell the exclusive rights to his story. That prompted the New York State Assembly to pass New York Executive Law § 632-a, which required that all proceeds from a criminal’s publishing deals be paid to the New York Crime Victims Board and made available to the victims. The money would be held in escrow for five years, and to claim it, a victim had to obtain a civil judgement against the criminal within that period.

The constitutionality of New York’s law was challenged in a case involving the profits from a book based on the life of the mobster Henry Hill, who was also the inspiration for the Martin Scorcese film “Goodfellas.” The New York Crime Victims Board determined that the book deal that Hill signed with the publisher Simon & Schuster violated its Son of Sam law, and forced the company to turn over all of its profits to Hill’s victims.

Simon & Schuster filed suit under 42 U.S. Code § 1983 — which prohibits “the deprivation of any rights, privileges, or immunities secured by the Constitution and laws” — arguing that the Son of Sam law ran afoul of the First Amendment. Simon & Schuster lost in the District Court for the Southern District of New York and at the Second Circuit Court of Appeals, but it won at the Supreme Court in a landmark decision called Simon & Schuster Inc. v. N.Y. State Crime Bd (1991).

In that decision, the Court held that the Son of Sam law was inconsistent with the First Amendment. In her unanimous opinion, Justice Sandra Day O’Connor noted, “a statute is presumptively inconsistent with the First Amendment if it imposes a financial burden on speakers because of the content of their speech.”

The Court found that the State has a “compelling interest in compensating victims from the fruits of crime” but that it has “little if any interest in limiting such compensation to the proceeds of the wrongdoer’s speech about the crime.”

The Court also called the law “significantly overinclusive” because its definition of “person convicted of a crime” would allow the Crime Victims Board to collect funds from “any person who has voluntarily and intelligently admitted the commission of a crime for which such person is not prosecuted.” The law also applied to authors whose work touched on crimes that were tangential or incidental to the work as a whole — a group that, the Court noted, would include Malcom X, Martin Luther King Jr., and Henry David Thoreau.

Following the Simon & Schuster decision, 10 states repealed and replaced Son of Sam laws with more narrowly-tailored statutes. But Son of Sam laws in 34 additional states remain unchanged.

What do you think about Son of Sam laws? Do they represent a restriction on free speech, or should criminals be prevented from profiting from the stories of their crimes? Let us know your thoughts by writing to us at [email protected], or reply to this email. 

FOLLOW

As a number of high-profile cases make their way through SDNY — including the Ghislaine Maxwell case, and the subpoena of President Trump’s tax returns stemming from last week’s Supreme Court decision — Courthouse News reporter Adam Klasfeld is providing the most up-to-date information. Follow him @KlasfeldReports.

To listen to Insider content on your favorite podcast app, follow these instructions*

— The team at CAFE is excited to introduce United Security, the newest podcast for members of CAFE Insider, hosted by former top advisers to the president Lisa Monaco and Ken Wainstein. Listen to the inaugural episode and lookout for the second episode next week, Friday, July 24.

— This week’s episode of Stay Tuned, Senator Cory Booker joins Preet for a conversation that covers the congressional response to COVID-19, his bill to remove Confederate statues from the U.S. Capitol Building, and his efforts to reform the police.

— In this week’s episode of CAFE Insider, “Pardon Me?” Preet and Anne break down President Trump’s decision to commute Roger Stone’s sentence, the unusual circumstances under which Michael Cohen is returning to federal prison, the pair of long-anticipated Supreme Court decisions concerning Trump’s personal financial records, and Geoff Berman’s congressional testimony.

That’s it for this week. We hope you’re enjoying CAFE Insider. Reply to this email or write to us at [email protected] with your thoughts, suggestions, and questions.

— Edited by Tamara Sepper

The CAFE Team:

Tamara Sepper, Sam Ozer-Staton, David Kurlander, Noa Azulai, Calvin Lord, David Tatasciore, and Matthew Billy

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