Fort Snelling and what is (revisionist) History?

Last week the Minnesota Senate cut funding for the Minnesota History in apparent retaliation
for the latter changing the name of the Fort Snelling to “historic Fort Snelling at Bdote.” 

“Bdote” is the original name given to the area by the Native-Americans who originally inhabited the area.  Justifying this action, Senate Mary Kiffmeyer declared changing the name is “revisionist history” and that “Fort Snelling is about military history, and we should be very careful to make sure that we keep that. It’s the only real military history in a very unifying way amongst all Minnesotans. It is our premiere entity for military history.”

I leave to others the judgement regarding whether this action is racist or offensive.  Instead,  is this revisionist history?

The days are long gone when historians such as Leopold von Ranke who reputedly argued that the task of history and historical knowledge is to “tell it like it is.”  Such as theory assumes that there are objective historical facts that are timeless ans which can be verified.  For the most part that theory has been refuted and regulated, so to speak, to the dustbin of history.  As later historians such  as E.H Carr and  Fernand Braudel point out, there is no such things as objective historical facts.  The art of history is interpretive– it is historians selecting facts in order to construct a historical narrative. 
Even more, the act of deciding what is a fact is normative, not objective.  History, as the philosophers Soren Kierkegaard and Hans-Georg Gadamer point out, is always understood from the present; it is how we understand the past as viewed through our experiences.  History and historical meaning, as I argued with Leon Goldstein in Conceptual Tension, is perhaps always being revised  in light of new undertandings, meanings, or senses of what is important.  “Facts” thought to have once been important, lose their significance over time or are seen in new light as a new generation come to view the world differently than those in the past.  The best indication of that, is the often  (mis)-quoted statement by Zhou Enlai who when asked by Henry Kissinger  about the impact of the French Revolution said it was “too soon to tell.”  Similarly, George Santayana’s “Those who fail to learn the lessons of history are doomed to repeat it” and G.W.F. Hegel’s “the only lesson of history is that we fail to learn the lessons of history” similarly speak to the notion that there are no objective historical facts that are immutable.  History is how we in the present understand the past.

Kiffmeyer’s concept of history about Fort Snelling suggesting its name is a unifier for Minnesota’s is reminiscent of the quip that history is written by the winners. To say the name Fort Snelling unites Minnesotans lives out many.  It leaves out of course Native-Americans who first inhabited the place for thousands of years before the US military.  Calling it Fort Snelling is revisionist from the name originally given it by the original inhabitants.

Fort Snelling excludes  African-Americans.  After all, the is the place a slave holder took his slave Dred Scott to from the south, resulting in one of the most infamous Supreme Court cases in history Dred Scott v. Sanford which declared black people were property and could not be citizens.  This case precipitated the Civil War.

Finally, it is hard to seen how “Fort Snelling” embraces the Hmong, Latinos, and so many other groups in Minnesota.  What is it they share with that name?

“Fort Snelling is not an immutable name that is inclusive of all.  It is already revisionist history and labeling, much in the same way that so many of the names in Minnesota are revisions of original names whose names and significance have changed over time.  Words matter and as language philosopher Ludwig Wittgenstein pointed out, words get their meaning f rom context and use.  As both change do what words mean.

At one time perhaps “Fort Snelling” conveyed a unifying meaning but no longer does.  “historic Fort Snelling at Bdote” might better capture what the place historically means  represents to a more inclusive  audience, when viewed from the present.  Fort Snelling, to be truly a treasure for all Minnesotans, cannot be something whose name and significance is frozen in the past, held  hostage as property by a few at the exclusion of others.  To think that is really revisionist history.

PS:  Photo courtesy of the Pioneer Press.

The Mueller Report: Why Trump is so inept he cannot even obstruct justice effectively

The Mueller report is out and if we learned anything from it, three things are clear.  One, the Report changed few minds.  Two, there was never a chance that Mueller would indict Trump.  Three, Trump is so inept he cannot even effectively obstruct justice.
The Mueller report came out Thursday morning–all 458 pages, single-spaced.  It is a dense, detailed study rich in facts and explanations of law.  But within less than one hour the media was already reporting on its contents or, better, asking experts or partisans what they thought.  Often reporting was pulling out one line here or there and discussing it. For the most part, all this reporting and reaction was useless.  To comment on a report when you have not read it is irresponsible, and even simply reading the executive summaries–as mostly were reported on–was similarly bad journalism or commentary.
But equally, the early evidence on the reaction to the Mueller report has been that it changed the minds of no one.  If the narrative before the Report was that Trump and his associates were guilty or they were not, the Report’s findings have not changed anyone’s mind.  Perhaps t his is related to the fact that almost no one will read the report and judge it themselves.  It is not a total vindication of Trump, and it is not a total condemnation of his administration.  It is more nuanced.
But in reading the Report, it is also clear that there was never a chance the president.  When Mueller began his investigation, he started with the legal premise that a sitting president cannot be indicted for a crime.  This belief was based on several Justice Department and Office of Legal Counsel memoranda from the Nixon to the Clinton era investigations holding this position.  The Muller Report, volume II, page one states: “[T]his Office accepts the OLC’s legal conclusion for the purposes of exercising prosecutorial jurisdiction.”  This is a major point largely missed by everyone.
The opening pages of part II of the Mueller report explains its legal reasoning.  It notes the heavy burden placed upon a sitting president were he to be indicted for a crime.  Second, the Report noted also ( page 2) it wanted to avoid the Nixon situation where a report concluded the president committed a crime but could not be indicted, resulting in him being named an “unindicted co-conspirator” as Nixon had been labeled.  There is, according to the Report, no way the President could clear his name, again leaving a cloud over the presidency that could not be cleared.  Better to indict and let the adversarial process render a verdict, or not indict than leave it in limbo.
As admirable perhaps as the Mueller investigation meant to be, it nonetheless left Trump in limbo because it is clear also that the Report investigated the president under a standard of proof much higher than would be applied to anyone else.  Specifically, when looking at the obstruction of justice issue–Did Trump seek to impede the Russian investigation?–he was given every benefit of the doubt.  Part II reviews numerous instances of possible obstruction, such as firing of the FBI director Comey, but concludes no in every instance.   
The Report does so for at least a couple of reasons.   One, there is the difficulty of sorting out the statutory requirement of showing corrupt intent on the part of the president that could clearly be separated from the president’s authority under Article II, sections one and three which vest executive power in him and allow him to take care that the laws be faithfully executed.   Did the president take some actions to impede an investigation or legitimately acting within presidential power?   There is just enough doubt in the facts that would have made guilt under American law beyond a reasonable doubt.
But despite the mantra in our society no one is above the law or that we all stand equally before the law, the Report makes clear the president does not.    One of the few good things in the Report is to note how so many of Trump’s people did their best to resist the worst of Trump’s impulses by refusing to carry out his orders.  Had they not disobeyed or disrupted Trump’s actions the case for obstruction would have been even greater to resist.  But think about what the Report said.  Look at the president’s conduct with the benefit of doubt to him.  Look also at how his staff impeded his actions. 
What we see in reading between the lines are indications of clear intent to obstruct, but for intervention of staff. No one else but the president gets the break.  Saying the president has not obstructed justice because others prevented him from accomplishing that act is far from saying the president did noting wrong–he was simply not successful in doing what he appeared to want to do.  It is like saying I am not guilty in trying to kill someone because when I shot the gun someone bumped my hand so that I would miss.  I still intended to kill and the law will prosecute me for attempted murder. 
Here, the Report arguably says Trump tried but failed to obstruct justice.  This is a synopsis of the entire Trump presidency–one so inept that it cannot even obstruct justice properly. It is a report that still leaves the president in limbo–decrying that simply not being indicted does not clear Trump of wrongdoing in terms of ethics, leadership, or personal character.  That is why after the initial dust from the Report settled, Trump seethed. Mueller and Attorney General Barr did not indict, but they also left the president in the limbo the investigation sought to avoid.

Trump Visits Minnesota: Can he win the state in 2020?

Donald Trump thinks he can win Minnesota in 2020.  In part that is why he is visiting Minnesota on April 15.  Is that belief a pipedream or is there a merit to his claim?  Contrary to what many think Minnesota might well be a swing state, sharing characteristics similar to other Midwestern states which flipped to Trump in 2016.
Minnesota is thought of as the liberal state of Hubert Humphrey, Eugene McCarthy, Walter Mondale, Paul Wellstone, and Al Franken. It is the most reliable Democrat state when it comes to the presidency; the last time it voted Republican was for Richard Nixon in 1972. Tim Pawlenty in 2006 was the last Republican to win a statewide election in Minnesota.  In 2018 Minnesota elected a Democratic governor in a rout, took back its House of Representatives, and might well have taken control of the State Senate were it up for election.  Democrats would thus say Minnesota is safely within their camp.
Yet Minnesota has become a microcosm of national politics, and there are many signs that the state is turning Republican. Since 1999, the Minnesota House of Representatives has been controlled by Republicans 14 out of 20 years. Since 2010 party control of the state Senate has flipped three times. Since 1999 a Democrat has controlled the governorship only eight years out of 20. When Democrat Mark Dayton won the governorship in 2010 he was the first of his party to win that office in Minnesota since 1986. This shift in party control at the state level mirrors the same at the national level.
In 2016 Hillary Clinton beat Donald Trump by 45,000 votes — the closest presidential race in the state since 1984, when Walter Mondale barely beat Ronald Reagan. Clinton’s close victory should not have been a surprise – exit polls put Minnesota at 37 percent to 35 percent in terms of Democratic/Republican affiliation, similar to the 36 percent to 33 percent split nationally.
From 2008 through the 2012 and then into the 2016 presidential elections, the actual number of votes and the percentage of votes received by the Democratic candidate declined in Minnesota. In 2008 Barack Obama received 1,573,454 votes compared to John McCain’s 1,275,409 – a difference of 298,045. In 2012 the gap between Barack Obama and Mitt Romney narrowed to 225,942. Then in 2016 it was 44,765 between Hillary Clinton and Donald Trump – a steady narrowing of the gap between the Democratic and Republican candidate.
In 2008, of the 87 counties in Minnesota, Obama won 42 of them. In 2012, Obama won 28, and in 2016 Clinton only won nine counties. In comparison, in the 2014 gubernatorial election, the Democrat, Dayton, won 34 counties and in 2018 Democratic Governor Tim Walz won 22 counties. Nationally in 2016, Trump won 2,626 counties and Clinton 487. Mostly nationally and in Minnesota, Clinton won mainly the urban counties.
As with nationally, the Democrat’s base appears to be eroding, contracting to simply urban areas. The reasons are multifaceted. There is the Democratic appeal to educated urban liberals, often more affluent who look down on or disdain as stupid their rural and suburban counterparts, or those who are working class because they do not share their same interests or lifestyle preferences. There is also the failure of both parties to pay attention to the class and economic concerns of white-working class America. They abandoned class for identity politics. Democrats seem also to have a one-size-fits-all campaign strategy that works well with urban populations but which is not tailored to the suburbs and rural areas.
Democrats have also embraced a “demographics with destiny” argument that often assumes that history in on their side and that eventually voters will return to their senses and vote for them. Finally, Republicans have well exploited the economic and cultural fears of rural, suburban, working class America, offering a narrative resonates with those who feel ignored. All this is true nationally, and is being played out too in Minnesota.
It is possible to argue that Clinton’s narrow victory in Minnesota in 2016 was a fluke – a product of her being a bad candidate or a terrible campaign strategy where after her caucus loss to Bernie Sanders she failed to return to Minnesota to ask for votes. But there are also signs that Minnesota is ready to flip and Trump may not be wrong in his 2020 prediction.

The Mohamad Noor Trial and Police Use of Force–What the Law Says

As the trial of Minneapolis police officer Mohamad Noor for alleged murder and manslaughter of

Justine Ruszczyk begins on April 1, there will be a lot of people who have already made their decisions regarding his guilt or innocence. Even once the verdict is in there will be second guessing, even though except for the jury, none of us will have full access to all the evidence.  This is especially true in light of the presiding judge’s decision to limit public viewing of some of the more graphic material.

The Noor trial is unusual in many ways.  Rarely are officers charged with murder for use of force in line of duty.   Race is unfortunately almost always a factor in police shootings, but generally it is a white officer accused of using excessive force against a person of color.  Here we see a reversal of race, leaving some to argue that the charging of the officer is about this, or Noor’s religion.  Hopefully race, religion, or prejudice will not be factors in this trial and that instead the verdict is rendered on the basis of the facts and the law.  The prosecution will have to prove beyond a reasonable doubt that Noor committed murder or manslaughter, but in doing that it will also have to address the legal protections that allow police to use force as an affirmative defense.

So what is the law on the police use of force?

 Police are legally empowered to use force, including deadly force, if they believe their own safety or the public’s safety is immediately and seriously threatened. Historically, police who use excessive force could be charged criminally or sued under state tort law. Neither option works well. Sovereign immunity bars many suits, prosecutors rarely charge officers, and juries are seldom sympathetic to victims, especially if they are criminals.

The basic legal framework for holding police responsible for excessive use of force was established in 1978 with Monell v. Department of Social Services. In Monell, the Supreme Court ruled that municipalities can be held responsible for police actions when and if plaintiffs (like victims of police brutality, for example) can show that those actions were the product of official police policy or part of a police department’s culture, customs and practices.

The problem is, this is very hard to do – and therefore it's tough to hold police accountable for misconduct. To hold police civilly responsible for civil rights abuses three elements must be proved. First, the person filing a complaint must be a person protected under the statute. Second, the defendant (police officer) must be acting under the color of the law. Third, the alleged violation must seriously infringe on a constitutional right. Victims also have to show that police acted with deliberate indifference, which is a higher legal standard of proof than negligence. This is a very high bar

When it comes to use of force, police have significant latitude. Not all uses of force are illegal, nor are all injuries actionable (of course, this make sense, police sometimes do need to use force for good reasons).

The Supreme Court has issued two major decisions that explain when police use of force is excessive. In Tennessee v. Garner the Supreme Court ruled that the use of excessive deadly force is a Fourth Amendment violation, that is, a kind of illegal search and seizure. To determine police liability, one must balance the citizen's interest versus the government’s. The citizen’s interest is substantial, of course: not to die. To overcome that interest, police must show that the officer believed that the suspect poses an immediate threat of serious physical harm to the officer or others.
 In Graham v. Connor the Supreme Court created an even softer standard for the excessive use of non-deadly force, based on whether the use of force would be justified from the perspective of a reasonable officer with 20/20 hindsight (Use of force has to be “objectively reasonable”).  Garner and Connor provide constitutional cover or an affirmative defense for police officers to use force.  Charge law enforcement officials with use of force–criminally or civilly–and these cases along with state law provide protection to use such tactics to enforce the law.

 Excessive use of force cases are hard to win for all the reasons criminal and state tort liability cases are. Moreover, public fears of crime complicate matters.  So does racism, especially in situations with mostly white officers – and often mostly white prosecutors, judges and juries – and people of color as victims. But another reason why these cases are hard to win is that the law determines excessive force from the perspective of the police officer, not the victim. Few juries are willing or able to second-guess a cop.

As the Noor trial progresses, this law on police use of force should be kept in mind.

PS:  For seven years I taught police liability in a criminal justice program.