The Economic Dimensions of Democratic Politics

In an op-ed last week, The New York Times editor, David Leonhardt, advised voting for a Democratic Party candidate for president based on the enthusiasm he or she excites in you, but also on how well the candidate’s program appeals to economic populism.  “A substantial majority of Americans favor a populist agenda — higher taxes on the rich, better federal health insurance, more government action to create good-paying jobs and so on. The Democrats did so well in the midterms partly because of the populist campaign many of them ran…I think their best chance of winning in 2020 involves a campaign centered on fighting for working families.”

Over the next few blogs and reviews of several recent books on contemporary economics, I want to put forth an argument that, whatever the value of the first criterion for casting a vote to select a Democratic Party candidate, I suggest that, while fighting for working families is certainly legitimate, and both sides make a claim to do so, that should not be done on the back of populist economics. For what you sow, so shall you reap.

Republicans say their program of reduced taxes not only helps the rich but benefits the working individual by creating more jobs, creating a need for workers and a need to compete for workers which in turn will lead to higher wages for them. Democrats who follow Leonhardt’s lead think in terms of minimum wages, rules to strengthen collective bargaining, taxation policy that redistributes wealth rather than offering incentives for accumulating it and sometimes protectionism. Republicans supposedly support a balanced budget and then run up deficits their Democratic opponents are afraid of lest they be accused of ruining the economy. Republicans, therefore, set aside PAYGO, the congressional rule that increases in spending be matched by cuts elsewhere, when it suits them. The G.O.P. 2017 budget did precisely this.

Projecting an image of a Democratic Party in fear of budget deficits places restrictions on righting the wrongs of the past through increased benefits and laws to redistribute income. This was the position of Nancy Pelosi’s critics when she ran to be speaker of the House of Representatives. Pelosi, however, resisted their criticism and resolved to abide by PAYGO. However, economists like Paul Krugman argue that austerity and budget restrictions impede economic growth and lead to economic stagnation by ignoring or setting back the need to invest in infrastructure and in human resource development for example. I want to question whether either approach is better or worse, or even whether a choice has to be made in the face of the globalizing technological economic forces driving modern economies.

This Central debate within America has to be set within what is taking place on the global level. Richard Haas, and many others, look upon what is happening with an apocalyptic lens. The liberal world order, which began in the seventeenth century and was greatly expanded and refined after WWII with a set of institutions, is at the beginning stages of disintegration. That order was based on an idea of promoting the economic well-being of everyone on this planet by constructing an international system based on the rule of law and respect for the sovereignty and territorial integrity of each country within a world order.

One factor that has contributed to the disintegration has been the very instruments seen to be the culmination of integrating the whole planet, namely the internet and, more specifically, social media. For what set out to enhance worldwide communications has created a crisis for open societies and the freedom of the mind that was the pillar of the liberal world order. George Soros as Cassandra has written that, “The current moment in world history is a painful one. Open societies are in crisis, and various forms of dictatorships and mafia states, exemplified by Vladimir Putin’s Russia, are on the rise. In the United States, President Donald Trump would like to establish his own mafia-style state but cannot, because the Constitution, other institutions, and a vibrant civil society won’t allow it. Not only is the survival of open society in question; the survival of our entire civilization is at stake. The rise of leaders such as Kim Jong-un in North Korea and Trump in the US have much to do with this. Both seem willing to risk a nuclear war in order to keep themselves in power. But the root cause goes even deeper. Mankind’s ability to harness the forces of nature, both for constructive and destructive purposes, continues to grow, while our ability to govern ourselves properly fluctuates, and is now at a low ebb.”

Soros is far from alone. Who would know better than John MacWilliams, who heads the Department of Energy where the internet was invented? He insisted that whenever we interact on a telecommunications device, someone not invited is listening. In fact, many are listening. Michael Lewis in The Fifth Risk, which I will review, dubs this the first risk. When married to the fifth risk, the failure to manage this (and other risks) by denigrating management in favour of ideology, by denigrating knowledge in favour of ignorance, offers the anti-intellectual tools to destroy the modern liberal order.

Why the increase in quasi-fascist and fascist states? Because the policeman (America) of the world has given way and surrendered the responsibility of regulation. Democratic values were viewed initially as being protected by military interventions and crusades. That resulted in a propensity to concentrate power in hegemonic states, unfortunately.  International institutions were created to foster a world of interdependence that could counteract that propensity. The result, as Joseph Nye and others argue, was an unprecedented level “of prosperity and the longest period in modern history without war between major powers. USsis leadership helped to create this system, and US leadership has long been critical for its success.”

However, in our digital age, giant, mostly American, platform companies have turned the greatest political power ever seen on this earth into an impotent giant as companies, that initially played an enormous role in innovation and liberalization, have fallen into the hands of interests which are primarily transactional, focused on promoting consumption rather than liberty in what Yanis Varoufakis dubs “the relentless commodification of privacy.” That, they argue, has made privacy and individual autonomy no longer possible. Innovators, like Mark Zuckerberg, have lost control of the Frankenstein they created.

Pseudo-knowledge – actual false claims – become the headlines people absorb and think of as knowledge. The weighing and evaluating of conclusions are set aside in favour of mass appeal. Sound bites are the clowns of this pseudo-cognitive world, sweeping minds and feelings into mass hysteria. Stop the merry-go-round. I want to, I need to, get off.

However, when it comes to the real world, our material world, our world as understood through economic science, the conclusion that the world is going to hell in a handbasket is offset by the cheery remarks of a leader that the country has the lowest unemployment levels and extraordinary rates of growth of that economy, blissfully ignoring the forces building up. Many if not most analysts see a collapse on the horizon. The volatile Wall Street stock market is just the foreplay for a 2020 depression that will make 2008 look like a blip on a screen and even the mode of management in 1929 seem like a cakewalk.

The fiscal policies of the U.S. are viewed as unsustainable. The period of sustained and synchronized growth has lost steam and is nearing a collapse, Unlike 2008 and 1939, governments no longer have the tools to reverse course according to Nouriel Roubini and Brunello Rosa.

2019 is supposed to be the tipping point with the U.S. running up unprecedented deficits, China has responded to the American-initiated trade war with even looser fiscal and credit policies as Europe limps badly as it still tries to recover from the centrifugal fragmenting forces threatening to throw a united but fragile unity into dozens of pieces. The protective devices of banking unification are proceeding too slowly and are too weak. Fiscal policy coordination is inadequate as political rifts and schisms grow exponentially. Political uncertainty across Europe, especially in the mainstays, France and Germany, grows as the domestic drivers of economic growth weaken and exports suffer because of the American-led trade war with China on a macro scale and the cancellation of the American decision to lift sanctions on Iran decrease trade on a more modest level.

Why? For many, the new communications system and the digital age are not the primary villains. Neoliberal ideology and “public choice” theory emphasizing the reversal of the regulations introduced following the 2008 crisis, are. The dominant economic model is becoming totally incongruent with the actual historical patterns on the ground which demand and need much greater intervention and management of the economy rather than greater anarchy. In spite of many efforts in place, the policy direction is working in reverse even though, in Europe, there is at least a plan in place to counter these trends and to maximize economy strengths in ingenuity and high-end manufacturing.

We have a communications crisis. We have a fiscal crisis. We have a governance crisis. In a globalized economic world with a pressing need for global management of a natural climate crisis of unprecedented proportions coming at us, we need more integration, not less, more governance not less, more regulation not less. But the signs of an emerging system of global governance are all pointing in the wrong direction. The tide of increased global trade that has contributed so much to rising worldwide prosperity is in retreat as the global trade game has shifted from free trade to increasing reliance on mercantilism, that is, regulation and intervention precisely in a way it is not only not needed, but is destructive to the international order. And central banks can no longer cope with the variety and size of the challenges that states face.

The startling part of it all is that we are just on the edge of vast improvements in productivity resulting from the digital age as machines not only replace the need for our muscle. Artificial intelligence is on the brink of displacing many levels of decision-making that can be better managed by electronic rather than by human intelligence. Look at how out of synch economic policies are. Tax policies in the U.S. and elsewhere increase inflation and impede investment just when more intelligent management of the economy is needed, not less. Most of all, there is public discord that grows as economic inequality grows and as the graduates of even our universities no longer see a route to owning their own homes unassisted by inherited family wealth.

In other words, the problem is not just economic disruption, but an earthquake taking place in our institutions of governance both domestically and internationally. On the macro scale, even as Democrats re-energize themselves in America, the institutions of liberalism and democracy appear to have weakened so much that salvation appears almost impossible. On the micro level, our youth face a housing crisis and young families face an eviction crisis as they face mortgage renewals at rising rates that they cannot support. At the same time, all my moves, all my plans – for travel, for work, for leisure – to eat, sleep and be merry – are being tracked as advertisers both monitor and target our desires. The surreptitious mapping of our habits and desires work to erode autonomy and individuality. Freedom then becomes reinvented as celebrity. Glitz and glamour displace gravitas and critical reflection. And opinion displaces fact as a foundation for decisions.

On a more mundane, but the most painful level, debt is punted down the line to future generations. Further, the problem is not only the exploding federal debt, but, as Carmen Reinhart has written, the high issuance of corporate collateralized loan obligations (CLOs), the new temptress on the financial runway that has pushed corporate bonds aside. High-yield corporate debt instruments are the emerging market within the U.S. economy, but the rapid rise is even greater in Europe where yields are even higher. Of course, these are of very different order of magnitude than in 2008, but they hit the productivity rather than consumer side of the market. Thus, these could be the equivalents of the high-interest poorly secured bundling of mortgage obligations in the first decade of this century that led to the 2008 financial crisis as the money is borrowed by weaker corporations and with more questionable valuation of the collaterals. And the debt is arranged through third tier lightly regulated banks. Do all capital surges end badly?

Unprecedented unemployment levels, owing almost entirely to the rapid increase in the service sector, in the atomized environment of outsourcing, does not produce increased income resulting from increased competition for workers. Expected increases in income have not been forthcoming. Thus the rise of Trump in America, of the Brexit fiasco in Britain, of Macron as a fleeting shooting star, not to count the quasi-dictatorships in Russia, China, Poland, Hungary, Turkey, the Philippines and Brazil, to list some of the major ones which still exclude totalitarian oppressive regimes such as North Korea or Myanmar, and imploding governments such as that of Venezuela, are all part of this trajectory towards disaster.

The rise of populist political parties and leaders with increasing influence almost everywhere threatens economies that depend on facts, on analysis, on knowledge-based decisions instead of whims and ignorance. Trump and other leaders on the right avoid comprehensive and coherent policy platforms for they are impossible to come by in an era dominated by ignorance and impulse, lies and braggadocio. Agility declines. Rigidity sets in.

Other Cassandras, such as George Brown, appear as optimists, for they still believe that steps can be taken to save the world from the collapse of a liberal globalization and a planet destroyed by climate change. How appealing then are the corrective measures promoted by The New York Times editor, David Leonhardt? There are two: based on enthusiasm in a candidate for public office who excites you; and choosing on the basis of how well thought out a program the candidate offers that simply appeals to economic populism. I will argue that they feed the beast rather than stopping it in its tracks.

Reviews of economic books follow.

 

With the help of Alex Zisman

The Competition for Recognition Part V The Moral Compass: Division on the Political Right

Is Donald Trump a by-product of the failure of liberalism which sold out to identity politics and the politics of resentment in accordance with the views of Jordan Peterson? Is Donald Trump, as Dummitt declares, the most triumphant exponent of “Be true to oneself” and representative of those who feel unrecognized and who are willing to defy social convention from the right? Dummitt declared that the moral compass in the modern world on the left as well as on the right, was rooted in the authentic self – “to thine own self be true” – rather than, say, custom or religious edicts. Is this accurate?

Whether or not the above is true, will the winner in this competition be the side which invokes the morally superior identity? If conservatives favour market and individual freedoms versus excessive bureaucracy and taxes, while the left liberals attack social and religious conventions that impose restrictions on sexuality, gender and race, is the present polarization simply a fundamentalist evangelical conflict between two definitions of moral purity and the claim that each is the real outsider, the real excluded, while each should provide the moral compass for the modern world?

If this depiction of the core of current polarization is accurate, can that polarization be overcome by avoiding the dichotomy of left and right and giving priority to traditional liberal and/or conservative references, say citizenship or to an overarching social order, that is, making a strong shared identity more basic than the identity quests that divide us? Such a solution would once again prioritize our customs and shared values that emphasize the rule of law, free speech, the right of self-expression and public civility. Or do we have to reach back further in our history, into the biblical narrative, a narrative of constant tension between ethical imperatives and historical propensities?

As I see the American political battleground, a four-way fight is underway. On the right, for now, the populists have won. On the left, the Left Liberals remain in charge, but the democratic socialists are in the process of mounting stronger and stronger challenges.

The overall battle can be represented by the following chart:

 

  Democratic socialist Left Liberal Conservative Populist
Substance Benefits Protections Markets Identity Wars
  Group rights Civil rights Human rights Foetal rights
Process Challenge incumbents Defend Incumbents Surrender

Incumbency

Challenge incumbents
  Voter registration Voter registration Voter Suppression Voter Suppression
Overview Class war Common membership Common membership Cultural War
  Resentment – Identity Politics Appreciation Appreciation Resentment – Identity Politics

Tomorrow, I will focus on the battle on the left. Today, attention is focused on the victory of right-wing populism over traditional conservatism in the internecine war on the right.

I begin with modernity and the moral purity of the economic right as best expressed by Friedrich A. Hayek. (See Individualism and Economic Order.) One type of individualism [economic] leads to freedom and spontaneous order. The other type of individualism [cultural] leads to a controlled economy and imposed order rooted in collectivism according to Hayek. For many, this implies that the only collectivist challenge comes from the left. However, there is a collectivist, a nationalist, challenge that comes from the right.

The Trump presidency is a case of deliberate inauthenticity, a case of wearing the mantle of market freedom, but organizing a takeover by collectivists who are nationalists, that is, by a group identified by their common loyalties. Order is imposed by a singular leader claimed to embody the nationalist spirit even if the actual spirit consists of lies, degradation of customs, racism, degenerate language and de facto narcissism. The playbook and the philosophy of fascism has not fundamentally changed since Giovanni Gentile, the Italian philosopher, set down the tenets of fascism in the book, The Doctrine of Fascism that he ghostwrote for Benito Mussolini.

Gentile misinterpreted Hegel and put forth what he called a neo-Hegelian view that extolled collectivism and denigrated individualism. There was no objective reality or reference points external to the self. Hence, this variation of the proposition, “To thine own self be true.” The true subject was not an abstract “I,” an individual postulated as an abstraction in an ideal world where that “I” enjoyed a full panoply of protections. The true subject was embodied, was an actual individual, a concrete rather than abstract individual. There was no true manifold objective world and no true abstract individuality. Truth was to be located in the subject, the heroic subject that asserted agency on behalf and in the name of the national collectivity. The objective world was only a projection of that individuality. Experience is only a product of what is projected; objectivity does not provide boundaries for this narcissism in the name of the collective.

There are no lies since the only truth that exists is that projected by the mind of the “wise” leader as the divine is conceived of as immanent in such projections. The leader is the “truest” believer in himself. The objective world must conform to this form of subjective Being.

Let me make these abstractions concrete. Ryan Costello lost his seat (the 6th Congressional District in Pennsylvania) in the House of Representatives in the midterm elections (see The New Yorker, 12 November 2018). He is an example of a traditional or moderate Republican, a conservative centrist. He was willing, even eager, to have government catch up with technical advances in renewable energy. He was willing to work with the Democratic opposition across the aisle to improve health-care delivery and introduce reasonable immigration controls.

“And then Trump gets elected. And the norms of politics all just blow up and you’re trying to figure out how to orient yourself when the rules don’t apply anymore, and you’re allowed to say and do things which used to be disqualifying.” Trump lied. Repeatedly! Often! Daily! Without due process, Trump banned entry to persons from seven Muslim countries. Without due process, Trump took away the White House press pass of CNN’s Jim Acosta. Costello wanted the Mueller investigation into election collusion with the Russians to go forward without any political interference. But the leader of his party, the president, denounced the FBI as corrupt, denounced the press for spreading fake news, insulted black female reporters while insisting on decorum at White House press briefings.

Costello faced a choice. Complicity with Trump or disloyalty to the Republican Party that had been taken over by Trump and his followers. He chose to walk a tightrope, generally ignoring the depths of degradation of his party’s leader, occasionally publishing on Facebook his own dissent towards Trump’s latest malfeasance when it became too extreme, but expressing no interest in condemning or censoring the president in the House. He chose not to accompany Jeff Flake of Arizona into the political wilderness. He allowed fear to determine his choices.

However, he faced chaos from the left as well as the right and barely escaped being shot by a Bernie Sanders supporter who critically wounded the Majority Whip, Steve Scalise of Louisiana, at a Republican charity baseball game. However, the bulk of artillery aimed his way came from the right even as he tried to sidestep Trump’s racism and Trump’s ignoring and ignorance of the Constitution and the rule of law. Costello faced either the ire of the voters in Pennsylvania or the ire of the President who would back an alternative Republican candidate in the primaries in Pennsylvania’s sixth district. He avoided the latter only to see his political career destroyed (at least for now) by the former. His principles of balanced budgets, free trade, upholding the Constitution, the rule of law and the separation of powers had all crashed and burned much earlier as prudential silence morphed into the “habitual muteness of the acquiescent.”

The politics of total war against party dissidents and politicians with backbone and character meant that reasonable compromise was no longer the language of politics. Extremism, zealotry and populism were. Conspiracy theories were floated in the air like hundreds of sky lanterns, even though everyone knew they were fire hazards. Republicans moved from being the upholders of institutions and their values to participating in the destruction of norms and institutions and engaging in voter suppression and gerrymandering. Shock value and publicity seekers usurped the role of thoughtful and reflective independent minded politicians.

But the roots lay in those same institutions. For the core issue of getting a foothold on the race to power depended most on the commitment of a core group of party members in a district and/or actually recruiting those members for the nomination. In a far less democratic Canada, constituency nominations depended, in most suburban ridings, on getting one ethnic group, or an alliance of two ethnic groups, who could deliver the signatures to party membership and their votes on nomination day. 1-2% of eligible voters could choose the candidate for their party, and, depending on the national race, could coast to victory.

In the USA, the nomination depended less on getting the support of a core of party members in a constituency party meeting (as in Canada) than on winning a popularity contest in a political primary, that is, in electioneering that never stopped and depended on the energizer batteries of politics – money and human time. The kind of publicity adopted depended on the intellectual, policy and publicity silos of your side. Decency, rationality, objectivity and a primary concern with truth had largely been shovelled into the ashbin of history, though to different degrees and with respect to different key issues. Core support came from two sometimes overlapping sources: evangelical Christians who had already subscribed to surrendering the individual self to a higher “divine” self, who appeared immanently in history; and resentful white Americans who felt they had lost their place in history.

Totally contrary to Christopher Dummitt, the core reference point has been neither authenticity nor moral purity, but expediency, opportunism and ambition. People’s rule had replaced party rule and the people were no longer an aggregate of individual voters, but an ideological tribe in which the members demonstrating the greatest zealotry won over the mob. Rallies, not debates, became the central focus of an election campaign by both the socialist left and the populist right.

However, on the right the collectivists, the nationalists, emerged victorious. Each day that passed witnessed the defeat of another compromiser, of another compromise, of another part of objective reality. Climate change impelled by human activity, according to Trump, was not a major contributing cause to the tremendously destructive fires that so recently laid waste to enormous tracts of land and even a whole city in California. The fact that these were not forest fires but largely shrub lands, the fact that, in any case, forests were not managed primarily by the State of California but by the federal government that owned the majority of forest tracts, the fact that “sweeping forests” was not an idea passed on by the Finnish Prime Minister as a forest management tool or that it was even a useful one, did not matter. Trump, as usual, mouthed off in ignorance and pronounced that there would be no more such fires. More than that, he pronounced his own personal view of nature as simply an extension of his own wishes rather than an independent reality.

“I have a strong opinion. I want great climate, and we’re going to have a forest that is very safe.”

 

 

 

 

Descent into Hell: Parshat VaYeitzei (Genesis 28:10-32:3)

The problem with old age is that we spend far too much time seeing doctors and trying to keep an old and decrepit chassis working. Ignoring times spent in labs for various blood and urine tests, for x-rays and Dopplers, echograms and neurological tests, this week alone I saw my general practitioner, my heart doctor and my sleep doctor. And today I head to the Toronto Western Hospital to have my eye measured to prepare for surgery and the removal of cataracts.

Not only do these visits take time, but when I meet old friends, we spend too much time reciting and comparing our ills. But it is not only with friends. Yesterday, I was on the phone talking with my youngest son for about two hours – he lives in Vancouver – and he was upset that I had not kept him up to date on my health and my treatments. And then there are the visits – to friends who have really serious health issues. I miss them. I want to see them. I want them to keep going even as I tire of the effort to keep going myself. Illness consumes time.

Why then bore you with such issues? Because I could use some help. I visited my sleep doctor yesterday – or perhaps it was the day before. I, to my surprise, had not seen her for quite awhile. I went to check whether my CPAP breathing mechanism that I use at night was set at the correct pressure. I made the appointment before I found out that taking a diuretic pill once a day got rid of the excess water in my legs and lungs that evidently accounted for why I had been feeling so tired. Hence, the breathlessness I had been experiencing. Perhaps that is why I was even more cheerful when seeing her than I perhaps usually am.

She told me that she likes to see me and missed me. How often does a doctor tell you that? Patients with sleeping problems are normally grumpy and melancholic. They feel sleep deprived and wish they could sleep more. In contrast, she said, I seem to be the rare – very rare evidently – a patient who comes to see her who is upbeat, tries to tell funny stories and cheers her up. I do not complain about lack of sleep for the fact that I need much less sleep pleases me enormously as it allows me normally to get my blog written before breakfast.

However, this time I had a real problem. I had a horrible nightmare early in the week. I had watched the news and the frightening fires in California where flames skipped over three football fields in minutes. I watched on television as families in cars escaped through walls of flames when they could barely make out whether they were fleeing the fire or getting into it. The children in the car were panicky as a father tried to reassure them that they should calm down. They would escape, he insisted. They evidently did so; that is why we could watch their car video that they had made.  Unfortunately, perhaps 200-300 did not escape.

I had gone to sleep about 10:30 p.m. and instead of waking up around 3:30 a.m., I woke at 11:45 p.m. I woke shaking. I could not get back to sleep. I also could not write. This is very unusual for me when I can be sitting at my desk writing within 60 seconds of waking up. I also do not usually remember my dreams. My sleep rhythm is unusual since I enter a deep sleep almost as soon as I put my head on my pillow – perhaps it can take as much as 30 seconds. And when I wake up, I am not drowsy but fully awake. But this past week, I could not write for two mornings in the aftermath of that nightmare. I missed writing two blogs.

However, this dream – or, rather, nightmare – was vivid in my memory. I was shaking when I awoke. In that dream, I had been in Africa working when I received a phone call that there was an enormous fire in the region where we lived back home – and home seemed to be California rather than Toronto. The caller told me that they had not been able to locate my wife and my two youngest children. In the dream, they were 6 and 9 years old at the time – so the dream was set almost 25 years ago.

I immediately flew home and began looking for them. The dream consisted almost entirely of that search – a futile search for I never found them. I passed houses with flames 30-40’ in the air. I passed cars engulfed in flames and tried to peer into them to see if my missing wife and two youngest children were in those cars. The dream went on and on, searching and searching but finding nothing. But the most peculiar part of the dream is that when I walked endlessly among these flames, I was freezing cold. I felt like an iceberg – assuming an iceberg can feel. I was frozen and never warmed up.

I told my sleep doctor that the dream had stayed with me all week, not only because it had been so horrific and because it had shaken me up so much, but because I could not figure out what it might mean. I usually find I can find an interpretation that seems to make sense. However, in this dream, the only thing that seems to have been clear was that the videos of the flames and the children in the escaping cars had probably set off the dream. Nothing else.

Of course, my sleep doctor was not a dream doctor. Her expertise was in the mechanics of sleep and not its imaginary content. I did not expect her to help me interpret the dream. I merely wanted to explain my physical tiredness succeeded by relief via a diuretic and then my mental tiredness brought on by a dream. I welcome any efforts at interpretation. In this there remains hope. For my readership offers me the opportunity and the audience to try to understand that dream.

But it is not my dream that I want to write about, but Jacob’s.

 

10 And Jacob left Beer sheba, and he went to Haran.   י

וַיֵּצֵ֥א יַֽעֲקֹ֖ב מִבְּאֵ֣ר שָׁ֑בַע וַיֵּ֖לֶךְ חָרָֽנָה:

11 And he arrived at the place and lodged there because the sun had set, and he took some of the stones of the place and placed [them] at his head, and he lay down in that place.   יא

וַיִּפְגַּ֨ע בַּמָּק֜וֹם וַיָּ֤לֶן שָׁם֙ כִּי־בָ֣א הַשֶּׁ֔מֶשׁ וַיִּקַּח֙ מֵֽאַבְנֵ֣י הַמָּק֔וֹם וַיָּ֖שֶׂם מְרַֽאֲשֹׁתָ֑יו וַיִּשְׁכַּ֖ב בַּמָּק֥וֹם הַהֽוּא:

12 And he dreamed, and behold! a ladder set up on the ground and its top reached to heaven; and behold, angels of God were ascending and descending upon it.   יב

וַיַּֽחֲלֹ֗ם וְהִנֵּ֤ה סֻלָּם֙ מֻצָּ֣ב אַ֔רְצָה וְרֹאשׁ֖וֹ מַגִּ֣יעַ הַשָּׁמָ֑יְמָה וְהִנֵּה֙ מַלְאֲכֵ֣י אֱלֹהִ֔ים עֹלִ֥ים וְיֹֽרְדִ֖ים בּֽוֹ:

13 And behold, the Lord was standing over him, and He said, “I am the Lord, the God of Abraham your father, and the God of Isaac; the land upon which you are lying to you I will give it and to your seed.   יג

וְהִנֵּ֨ה יְהֹוָ֜ה נִצָּ֣ב עָלָיו֘ וַיֹּאמַר֒ אֲנִ֣י יְהֹוָ֗ה אֱלֹהֵי֙ אַבְרָהָ֣ם אָבִ֔יךָ וֵֽאלֹהֵ֖י יִצְחָ֑ק הָאָ֗רֶץ אֲשֶׁ֤ר אַתָּה֙ שֹׁכֵ֣ב עָלֶ֔יהָ לְךָ֥ אֶתְּנֶ֖נָּה וּלְזַרְעֶֽךָ:

14 And your seed shall be as the dust of the earth, and you shall gain strength westward and eastward and northward and southward; and through you shall be blessed all the families of the earth and through your seed.   יד

וְהָיָ֤ה זַרְעֲךָ֙ כַּֽעֲפַ֣ר הָאָ֔רֶץ וּפָֽרַצְתָּ֛ יָ֥מָּה וָקֵ֖דְמָה וְצָפֹ֣נָה וָנֶ֑גְבָּה וְנִבְרְכ֥וּ בְךָ֛ כָּל־מִשְׁפְּחֹ֥ת הָֽאֲדָמָ֖ה וּבְזַרְעֶֽךָ:

15 And behold, I am with you, and I will guard you wherever you go, and I will restore you to this land, for I will not forsake you until I have done what I have spoken concerning you.”   טו

וְהִנֵּ֨ה אָֽנֹכִ֜י עִמָּ֗ךְ וּשְׁמַרְתִּ֨יךָ֙ בְּכֹ֣ל אֲשֶׁר־תֵּלֵ֔ךְ וַֽהֲשִׁ֣בֹתִ֔יךָ אֶל־הָֽאֲדָמָ֖ה הַזֹּ֑את כִּ֚י לֹ֣א אֶֽעֱזָבְךָ֔ עַ֚ד אֲשֶׁ֣ר אִם־עָשִׂ֔יתִי אֵ֥ת אֲשֶׁר־דִּבַּ֖רְתִּי לָֽךְ:

16 And Jacob awakened from his sleep, and he said, “Indeed, the Lord is in this place, and I did not know [it].”   טז

וַיִּיקַ֣ץ יַֽעֲקֹב֘ מִשְּׁנָתוֹ֒ וַיֹּ֗אמֶר אָכֵן֙ יֵ֣שׁ יְהֹוָ֔ה בַּמָּק֖וֹם הַזֶּ֑ה וְאָֽנֹכִ֖י לֹ֥א יָדָֽעְתִּי:

17 And he was frightened, and he said, “How awesome is this place! This is none other than the house of God, and this is the gate of heaven.”   יז

וַיִּירָא֙ וַיֹּאמַ֔ר מַה־נּוֹרָ֖א הַמָּק֣וֹם הַזֶּ֑ה אֵ֣ין זֶ֗ה כִּ֚י אִם־בֵּ֣ית אֱלֹהִ֔ים וְזֶ֖ה שַׁ֥עַר הַשָּׁמָֽיִם:

18 And Jacob arose early in the morning, and he took the stone that he had placed at his head, and he set it up as a monument, and he poured oil on top of it.   יח

וַיַּשְׁכֵּ֨ם יַֽעֲקֹ֜ב בַּבֹּ֗קֶר וַיִּקַּ֤ח אֶת־הָאֶ֨בֶן֙ אֲשֶׁר־שָׂ֣ם מְרַֽאֲשֹׁתָ֔יו וַיָּ֥שֶׂם אֹתָ֖הּ מַצֵּבָ֑ה וַיִּצֹ֥ק שֶׁ֖מֶן עַל־רֹאשָֽׁהּ:

19 And he named the place Beth El, but Luz was originally the name of the city.   יט

וַיִּקְרָ֛א אֶת־שֵֽׁם־הַמָּק֥וֹם הַה֖וּא בֵּֽית־אֵ֑ל וְאוּלָ֛ם ל֥וּז שֵֽׁם־הָעִ֖יר לָרִֽאשֹׁנָֽה:

20 And Jacob uttered a vow, saying, “If God will be with me, and He will guard me on this way, upon which I am going, and He will give me bread to eat and a garment to wear;   כ

וַיִּדַּ֥ר יַֽעֲקֹ֖ב נֶ֣דֶר לֵאמֹ֑ר אִם־יִֽהְיֶ֨ה אֱלֹהִ֜ים עִמָּדִ֗י וּשְׁמָרַ֨נִי֙ בַּדֶּ֤רֶךְ הַזֶּה֙ אֲשֶׁ֣ר אָֽנֹכִ֣י הוֹלֵ֔ךְ וְנָֽתַן־לִ֥י לֶ֛חֶם לֶֽאֱכֹ֖ל וּבֶ֥גֶד לִלְבֹּֽשׁ:

21 And if I return in peace to my father’s house, and the Lord will be my God;   כא

וְשַׁבְתִּ֥י בְשָׁל֖וֹם אֶל־בֵּ֣ית אָבִ֑י וְהָיָ֧ה יְהֹוָ֛ה לִ֖י לֵֽאלֹהִֽים:

22 Then this stone, which I have placed as a monument, shall be a house of God, and everything that You give me, I will surely tithe to You.   כב

וְהָאֶ֣בֶן הַזֹּ֗את אֲשֶׁר־שַׂ֨מְתִּי֙ מַצֵּבָ֔ה יִֽהְיֶ֖ה בֵּ֣ית אֱלֹהִ֑ים וְכֹל֙ אֲשֶׁ֣ר תִּתֶּן־לִ֔י עַשֵּׂ֖ר אֲעַשְּׂרֶ֥נּוּ לָֽךְ:

Jacob had his dream while lying on the ground with his head on a rock. I was in bed with my head on a pillow. In Jacob’s dream, there is a ladder connecting heaven and earth. In my dream, earth has become a fiery hell. In Jacob’s dream, angels skip up and down the ladder; it is a sulam with the same numerical value as Sinai that adumbrates Moses’ encounter with God at Sinai. Jacob wakes from his dream in amazement. I woke from mine in anguish, despondent, dejected and wretched.

In my dream, I plod along horizontally. There is no skipping, just despair. If God stood over Jacob in his dream revealing himself to Jacob and promising that the land on which he rested his head will be given to him and his progeny, there was no God in my dream. No angels and not even Satan. I was alone in my dream, very much alone. And I walked in a landscape that no one would want to inherit.

Jacob flees his life of cheating his brother and wrestling away Esau’s birthright and blessing. Finally, between his home and that of his uncle, he is able to lie down and have a dream. But in my dream, I can only wander endlessly and aimlessly. I cannot even look forward to wrestling with God at the ford of the Jabbok River.

When Jacob awoke from his dream, he entered into a covenant with God, namely that, as long as God was with him and protected him and guided him, as long as he gave Jacob food to eat and a garment to wear, Jacob would remain His loyal servant. There was no one in my dream protecting my wife and children. There was no one guiding me as I trudged along amongst the flames and through the smoke without direction. And I felt only cold. Where Jacob had seen the house of God and the gate of heaven, I wandered the streets of hell.

The next morning after the dream, I went to synagogue and recited the kaddish. It was my mother’s Yahrzeit, the anniversary of her death eighteen years ago. It was morning and I recited the Shaharit prayer, the morning prayer that Abraham had supposedly established. Though I went through the motions and had amiable conversations with my friends, my heart was not in it. And it was a prayer for my mother. I felt more like Isaac, but in a paved over field with burning houses and cars on all sides. But in my dream, there was neither any prayer that poured out of me, nor conversation either. I saw no one. I asked no one. I searched, but the streets were deserted. It was certainly not Jacob’s evening prayer for there were no encounters at all.

In fact, the smoke was so thick, I could not tell whether it was morning, noon or night. It was true hell for the different times of the day had been obliterated. And I did not ask God to take me out of the darkness of that day into the light. Was this a world that God would inhabit, for it was truly a scorched earth unsuited to bring forth food, for sustaining animals and allowing beautiful yellow and purple flowers to grow. It was a world of gray on gray except for the brilliant red of the flames. It was a world that no one owned and no one would even want to own. The world was indeed illuminated, but not by the sun’s light, not by God’s light, but by the darkness and the flames that make up hell.

The celestial spheres, the sun and the moon, were blocked out by billowing black and grey smoke. And there was no one in charge of a world headed towards hell. God had abdicated. God had also fled the flames and abandoned His responsibilities. And I could not find my wife or my youngest children. Instead of the darkness providing an ambience for intimacy, there was nothing. There was nothingness. There was no God to embrace me in my fear, in my terror. There was no God with whom I could even make a deal, draw up a covenant, one in which we could exchange mutual promises and obligations. I did not feel, as I usually felt, when I awake in the very early hours of the morning and would write until I saw the light of day beginning to form outside of my picture windows in my study. I was not merely insecure, tired and wary as Isaac always seemed to be. I was petrified and identified with Jacob who loved bright colours and innocent jokes to cover up his profound terror. Deep down, he felt hopeless and was in despair, for a night of intimacy with his God had been lost. It was a night in which, except for the flames, all cows were both black and dead.

There was no progress in that dream, from hope to worry and trepidation. Instead of God turning on the lights, the flames were subsiding and left only burned out collapsed homes and frames of vehicles in a bleak landscape. Would the lights come on again? Would I see my wife and two youngest children again? I was so obsessed that I could not even thank an unknown God that my older children were safe and living elsewhere.

I pray every day that God renews His creation if there is a God and if God is still working at His job. I pray that each day will be a brand new day, a day full of creativity, a day of renewal when the world is always experienced anew. But the world had died. It had been torched.

I have never been concerned with whether God existed or not. The issue was never for me whether I believed or did not believe God existed. The issue had always been whether I believed that if God existed, that I was worthy of His faith in me. But in that bleak landscape, I feared that I had lost the faith in myself, the real faith that sustained me, that the world was and would be born anew every morning with a different pattern even though the elements were identical, that at night the angels ascended and descended the ladder in continuous motion, like elves, to renew the world for another day even though fascists and Nazis driven by the politics of resentment were in pursuit.

Will my family, will all families, be so blessed as I have been blessed? Will they even have a ladder to climb?

From Is to Ought

Ben Rhodes The World As It Is: A Memoir of the Obama White House, New York: Random House, 2018.

In the Prologue of Ben Rhodes memoir, he describes how, in his last meeting with any head of state, Barack Obama passed the torch onto Justin Trudeau, Prime Minister of Canada. “You’re going to have to speak out when values are threatened.” Trudeau promised that he would “with a smile on my face. That is the only way to win.” Obama was an American, a liberal American, who believed that morality framed coercion and military might. “American leadership depended on our military, but was rooted not just in our strength but also in our goodness.” (25) And that goodness was built into institutions and laws but backed up, if need be, by force. (48)

A smile would not do the job. Yet Obama, flummoxed in the aftermath of the election of Donald Trump and emergence of autocrats around the world, conscious that his best ally, Angela Merkel, had been severely wounded, could only reach out to a Canadian leader who led with a smile and not even a soft voice. Further, and more importantly, Canada did not carry a big stick.

The real mantle of leadership had been stolen by Donald Trump, a would-be autocrat. He was willing to meet with other autocrats around the world – without any preconditions – North Korean, Russian, Turkish, even Iranian. Trump was blasted in the liberal press for doing so. Yet, when Ben Rhodes joined the Obama presidential campaign, his Democratic contender also had promised to meet US adversaries without conditions. As Rhodes wrote, “[T]he reason is this, that the notion that somehow not talking to countries is somehow punishment to them, which has been a guiding diplomatic principle of this [the Bush] administration, is ridiculous.” (12) Hillary Clinton, Obama’s opponent for the Democratic nomination, disagreed. She called Barack Obama naïve. Republicans, the same ones who as sycophants and toadies, defended Donald Trump when he did it, called Obama much worse.

Diplomacy without preconditions was not the only tactic Trump stole from Obama. “Turn defense into offense.” (18) “Restore America’s standing around the world.” (22) When Trump ran on a version of the latter, Obama made fun of the slogan, “Make America great again.” “America had always been great,” insisted Obama.

There is, of course, a difference between Obama and Trump. For the latter, such diplomatic meetings are simply transactional and the Donald believed that he was and is master of the deal. Obama believed, and his legacy – the Iran nuclear deal, the opening to Cuba, the Trans-Pacific Partnership (TPP), the Paris climate agreement for which leadership had been passed to China and Xi Jinping, the negotiations with the military junta in Myanmar – proved it, that diplomacy rather than inter-personal deals work. But a diplomacy capable of setting aside mindblinding and politically binding assumptions. In every single case, Donald Trump in his first two years in office proved that he was the master of and replacing professional diplomacy with personal transactional gestures.

The destruction of many of Obama’s overseas achievements had as much to do with personal animosity as Trump’s propensity for demolition, and both certainly more than the absence of any substance in his foreign policy. Donald Trump had been a leader in the blatantly racist “birther” movement, the false claim that Barack Obama had not been born in the US. Obama had folded before the media onslaught and finally acceded to releasing his longform birth certificate. That quieted but did not close down the flow of fake news. More importantly, a few days later after the birth certificate release, Barack Obama had his revenge at the annual White House Correspondents’ Dinner. In a series of spot-on jokes, he humiliated Donald Trump in the media and before the American public. “No one is happier, no one is prouder to put this birth certificate matter to rest than the Donald. And that’s because he can finally get back to focusing on the issues that matter – like, did we fake the moon landing.” (132-133) Trump’s unwinding of Obama’s many successes was Trump’s revenge.

The Obama administration did have its own share of failures – dealing with Russia over Georgia (inherited from Bush), Crimea, the Ukraine and Syria, as well as Syria itself and, of course, the disastrous Libyan initiative, the failure of the Israeli-Palestinian peace process between Israel and the Palestinians, the incoherence of the US policy towards Egypt, and the fiasco of Afghanistan that I wrote about in the Farrow book review. What is worse, Obama and Rhodes knew that, “the Taliban could not be defeated so long as it had political support in Afghanistan and a safe haven in Pakistan.” (73)

Obama had kept Robert M. Gates on as Secretary of Defence and initially backed the failed strategy of counter-insurgency in an arena in which it could not and did not work. Vice-President Joe Biden was the only individual in the administration who consistently and persistently opposed a troop surge and argued that the US military was jamming Obama. (65-6) So what was Obama’s rationale if America was not going to defeat the Taliban? “We need to knock them back to give us space to go after al Qaeda.” (75) The troop surge was approved.

But perhaps Egypt was even more telling than Afghanistan. Obama and Rhodes knew that in a repressive society like Egypt’s, a democratic election would probably lead to the victory of an Islamist Party, the Muslim Brotherhood. (54) Yet the Obama administration backed the removal of Mubarak and fell back on the position that America would “judge any political movement by whether they choose to act and govern in a way that is consistent with democratic principles.” (55) But what if that political movement, though noisy in its demonstrations, was marginal in its political depth and the real choice was between two other movements – one rooted in the military and the other in the religious establishment? How should America act when faced with a Hobson’s choice when, in the end, military coercion was the real and only power? That same effort to achieve a balance between two incompatible political perspectives would prove to be the root of the Obama administration’s enormous but fruitless efforts to resolve the Israeli-Palestinian dispute.

It would also be at the root of Rhodes’s failure to comprehend the limitations of the doctrine of the Responsibility to Protect (R2P). Rhodes expends few words on the doctrine and I cannot elaborate n it here, but it is clear that he aligned with Samantha Power (82) and, to some extent, Susan Rice, who believed that the R2P had to be a bedrock of American foreign policy – that is, liberal state had the right to intervene with force when a state persecuted its own citizens or could not protect them from other s bent on destruction. Obama never bought into it. Rhodes in his book never explains why except to suggest that Obama was more a realist than the small idealist cohort he had working for and with him.

However, R2P was fundamentally flawed. This doctrine had originated as a Canadian initiative. It advocated the right of any foreign power to intervene when the government of a state targeted its own people. Within a very short time after its formulation, it was adopted by a unanimous vote of the United Nations. Except the vote was only unanimous because the heart of the doctrine had been cut out. Humanitarian intervention would only be permitted with the approval of the state being targeted. Once again, sovereignty trumped moral principles.

Further, it could and never would be applied in the Chinese mistreatment of the Uyguars or even the military junta mistreatment of the Rohingya in Myanmar. Sanctions certainly. But not coercive intervention. In the easiest situation possible, with a UN peacekeeping force on location and the government perpetrators on the ropes in its fight with a Tutsi-led military force, the world had failed to intercede and stop the genocide in Rwanda. Diplomatic exhortation and lofty principles were no substitute for action on the ground.

Perhaps Obama’s greatest success in the domestic arena – not the Affordable Care Act, but the salvaging of the world economy – was also his greatest failure and paved the way for the rise of Trump. This was in the domestic arena and not foreign affairs to which Ben Rhodes had dedicated his talents. The 2008 economic crash was a direct product of President Bush and, to some degree, his predecessors. Obama inherited an economic mess.

Ben Rhodes wrote the following words for Barack Obama. “Jobs have disappeared, and people’s life savings have been put at risk. Millions of families face foreclosure, and millions more have seen their home values plummet…So let’s be clear: What we’ve seen the last few days is nothing less than the final verdict on an economic philosophy that has completely failed.” (33) Ben made Obama sound like a Marxist. Talk about hyperbole! The 2008 economic crash, the greatest since the depression, was the final epitaph for capitalism, not just for a failure in banking regulation. Capitalism had completely failed. This is how the statement sounded.

However, the philosophy referred to was not capitalism but one version of it – trickle-down economics and deregulation. Further, even on that there was no final verdict. In fact, Barack Obama in part made possible the restoration of that capitalistic ideology to pre-eminence after two years of his presidency and totally cleared the road from any blockage to it by contributing to the election of Donald Trump. How? Precisely by overstating the failure and understating the consequences of the 2008 economic crash. Not just jobs, but hundreds of thoUSnds of them were wiped out. Millions of families not only faced foreclosure but were, in fact foreclosed upon when Obama bailed out the banks without helping those who bought homes that were now financially under water.

Ben Rhodes was a foreign policy speechwriter and adviser and was not up on domestic policy let alone economic policy. There is an enormous problem with trickle-down economics, but that was NOT the issue in the 2008 economic crash. Rhodes not only failed to hit the target, but grossly understated the effects on the average American just as he overstated the implications of the crash for capitalism. In his memoir, he never seemed to notice this oversight.

Unfortunately, the same disposition applied to foreign policy. When North Korea tested a ballistic missile in the very beginning of Obama’s presidency when he was in The Czech Republic, Ben Rhodes added a few sentences to Obama’s address to the Czech people. “I sat at my computer inserting a strongly worded warning to the North Koreans about the isolation they’d face for continued nuclear and missile tests.” (42)

When Trump was in the same position, he threatened fire and brimstone and then met with Kim and called him a wonderful guy who likes me. Greater isolation! North Korea had survived for years, though barely, against the greatest international deep freeze applied to any foreign state in the post-WWII period. And the country still persisted in its nuclear and missile development program. Rhodes’s and Obama’s threat rang totally hollow at the time. More significantly, eight years later, Ben Rhodes failed to notice let alone be self-critical of such a shortcoming. And this in spite of the deep faith of liberals, like Barack Obama, who held a progressive view of American history and “the capacity for self-correction” (43) to which Obama (and Rhodes) attributed America’s purported exceptionalism. But what if this purported exceptionalism rested as much on the failure of America to be deeply self-critical and to truly engage in self-correction at a fundamental level?

Louis Menard wrote a review of Rhodes’s book and claimed it traced the evolution of a political junky from an idealist to a realist. Unlike Farrow’s book, Rhode’s memoir is indeed a book in which observation and self-reflection are woven together by a fine writing style, but one which only records faces and clothes and settings when they are directly pertinent to the narrative. But Menard is wrong. The shock is that Rhodes never became disillusioned about his ideals. Tired, certainly. Sometimes depressed. At other times simply resigned. But he is indefatigable in holding onto his ideals. That is perhaps why Obama loved him. That is certainly why Rhodes worshipped Barack Obama.

As with his previous co-authored book with a former congressman, Lee Hamilton, (Without Precedent: Inside Story of the 9/11 Commission), Rhodes’s book is a very inside story, but of the day-to-day crises and pro-active stances of the Obama regime from the campaign through eight years in the White House. During that time, Ben Rhodes began working as a speechwriter and foreign policy advisor for Obama in his campaign for the Democratic nomination for President and ended up serving for eight years as deputy national security advisor with oversight over speechwriting, public communications and relations as well as undertaking specific diplomatic missions himself.

During that time, according to Rhodes’s reflections on his service and the Obama administration, the arc of history did not move from idealism to realism but, rather, a realization that “the world (w)as (and is) a place that could – in some incremental way – change.” (421) As he ends his memoir, at “I was a man, no longer young, who – in the zigzag of history – still believed the end of his service to Obama, to the American nation and to his own ideals, in the truth within the stories of people around the world, a truth that compels me to see the world as it is, and to believe in the world as it ought to be.” The book is not about the decline of his ideals, but increasingly focuses on the actual challenges to those ideals and the efforts made to overcome those challenges.

Holbrooke, with his idiosyncratic personal characteristics for a diplomat and his pursuit of realism in the conduct of foreign relations, was Farrow’s flawed hero. Barack Obama is Rhodes’s idol, an idol he did not worship from afar, nor even merely up close to reveal the crevices that began to appear on Obama’s boyish good looks, but one whose mind and heart and guts Rhodes entered into wholly and without reservation, even in the odd moments when he disagreed with his leadership on a particular issue.  Rhodes learned to focus on a small portion of the grains of sand on the earth than on the even greater number of stars in the sky.

 

With the help of Alex Zisman

The SNC-Lavalin Affair: Jody Wilson-Raybould (JWR) Part II

The Director of Public Prosecutions (DPP) has the responsibility for determining whether a corporation (a partnership or an unincorporated entity) should be offered a Deferred Prosecution Agreement (DPA). The DPP has the benefit of the full police investigation, other court records, documents and witness interviews, including material that may never be publicly disclosed, that enable her to draw her conclusion. The public has no such access so I will not even try to second guess whether the DPP’s decision not to offer a DPA to SNC-Lavalin was a reasonable one.

A DPA cannot be offered to an individual, only to an artificial person for which any sanction would be financial. Like any plea bargain, the possibility and terms of a DPA negotiated between the accused and the prosecutor are subject to court approval. The DPA must “be in the interests of justice.” Its terms must be fair, reasonable and proportionate. Reasons must be given for declining a DPA. If a court does not approve a DPA, the possibility of prosecution is not jeopardized because the DPA terms are not yet public.

The SNC-Lavalin affair never came nearly that far since the DPP refused to negotiate a DPA and Attorney General (AG) Jody Wilson-Raybound (JWR) refused to intervene in the decision. JWR reviewed the DPP’s decision and concluded that she would be wrong to intervene. That is virtually all we know about why the AG declined to overturn the decision of Kathleen Roussel, Canada’s DPP, to proceed to trial.

The only substantive complaint that’s been made over this whole supposed “scandal” seems to be that the AG was not sufficiently persuaded by concerns about job losses to overturn the professional opinion of Canada’s most senior prosecutor. Further, it is helpful to keep in mind the OECD anti-bribery framework to which Canada has long been a signatory. Our legislation, including DPAs, is modeled on that framework. We also have a record of the criminal activities for which SNC-Lavalin has been convicted.

We do know the following. SNC-Lavalin has been guilty of the following overseas infractions and has:

  • been banned from bidding on Asian Development Bank projects because SNC fabricated qualifications and documents (2004);
  • agreed to a settlement with the African Development Bank over corruption allegations because of bribes in Mozambique (2008) and Uganda (2010);
  • determined by the World Bank as having credibly participated in high-level corruption in Bangladesh in 2009-2010;
  • entered into a voluntary debarment from World Bank-financed projects.

Within Canada, SNC-Lavalin has been found to have

  • bribed Canadian officials to the extent of $22.5 million in relation to the McGill hospital contract I wrote about in my initial blog in this series (2009);
  • agreed to voluntarily compensate seven Quebec municipalities for obtaining contracts through questionable means (1996-2011).

There is a widespread belief that general guidelines for issuing a DPA include the principle that it should be the exception and not the norm and that a DPA should only be entered into when the offences are not very serious. Neither consideration is correct. DPAs are negotiated worldwide for extremely serious crimes. They need not apply only in exceptional cases, but may, in the interests of justice, especially when there are effects on the innocent, be entered into. On appearance, SNC-Lavalin’s behaviour would seem to fall into this category since the point of a DPA is, according to OECD guidelines, to minimize consequences to innocent third parties, including employees. Therefore, the PMO and the Minister of Finance had every right and even duty to raise the possibility.

Canada can look to the UK for precedents where the issuance of three DPAs have been concluded. I have chosen the Rolls-Royce (R-R) case rather than SFO v Standard Bank plc and SFO v XYZ Ltd because R-R and SNC-Lavalin are most similar. In Britain, the Serious Fraud Office (SFO – presumably there is fraud that is not serious), following a four-year investigation, entered into a DPA with R-R approved by the President of the Queen’s Bench on 17 January 2017 following criminal conduct by R-R over three decades in seven different jurisdictions (Nigeria, Indonesia, Russia, Thailand, India, China and Malaysia). R-R agreed to reimburse SFO for its costs, thirteen million pounds, and to repay “disgorged” profits of £258,170,000 and a financial penalty of £239,082,645. R-R was also required to pay interest on those sums. (For full details of the agreement, go to https://www.sfo.gov.uk/cases/rolls-royce-plc/.

SNC-Lavalin’s crimes in Libya did not seem nearly as serious as those of R-R, certainly in monetary terms. They took place over a shorter time span, in one specific location, and did not seem to entail such enormous repayments or penalties. The R-R case seemed to offer a precedent for a DPA for SNC-Lavalin. However, as already stated, we do not have access to the evidence collected.

In Sir Brian Leveson’s ruling, he noted that R-R “is properly considered to be a company of central importance to the United Kingdom, with a reputation in the field of engineering second to none…[R-R] is a global company providing highly-efficient integrated power and propulsion solutions. [Its] power systems are predominantly used in aerospace, marine, energy and off-highway applications [locomotives…R-R is] one of the world’s leading producers of aero engines for large civil aircraft and corporate jets…, the second largest provider of defence aero engines in the world…well established in the marine sector where [the company] designs vessels [including nuclear submarines and luxury yachts] and integrated power systems.”

Worldwide, R-R employs 50,000 compared to SNC-Lavalin’s 9,000. If the UK system could balance the positive role of the company against its criminal deficiencies and take into account effects on employment, why could the Canadian legal system not do the same? One easily understands why the PM, the PMO, the Finance Ministry of the people working there all wanted the AG to consider the wider picture. On the other hand, it is also totally understandable why JWR wanted to protect the independence of the DPP, not intervene unless there was overwhelming evidence to do so, and why she would regard the repeated “pressures” as “inappropriate,” though not illegal.

Sir Brian Leveson ruled that the role of R-R in the world had to be considered when examining its criminal behaviour. There was one major difference, however, R-R voluntarily owned up to its sins, though the investigation initially was not taken as a result of self-reporting; Swiss authorities first uncovered the crimes. To the best of my knowledge, SNC-Lavalin also did not self-report. Cooperation in the criminal prosecution seemed to provide some mitigation for R-R’s serious breaches of criminal law in the arena of corruption and bribery since the conduct of the investigation was enormously assisted by R-R. Further, Leveson, while considering the impact of prosecution on employees and other innocent parties and the impact on whether R-R could continue to function in its areas of specialization, but none of these factors, and certainly the impact on national economic interests, were determinate in approving the DPA for R-R. Serving justice in a fair and reasonable way were.

 What about the issue of R-R’s or SNC-Lavalin’s responsibility for causing “serious bodily harm or death”? In such cases, DPAs are not considered to be applicable. In the SNC-Lavalin case, no professional killers were evidently involved, though, indirectly, many deaths might be attributed to the record of corrupt activities. Further, SNC-Lavalin fired its key leadership and undertook to thoroughly clean house and establish a culture of honesty. Did it do the latter? I have no way of knowing to judge the appropriateness of a DPA. We do know that Riadh Ben Aïssa has been cooperating with the prosecutor.

All this must be kept in mind as we review the events that took place after 20 September 2018. As you will see, contrary to what has often been claimed on media, there is no evidence whatsoever that the government tried to obtain lenient treatment for SNC-Lavalin or even influence the terms of a DPA, but only to influence whether and how a DPA could be offered. The issue was whether the government applied pressure in such a way as to compromise the independence of the AG.

On 18 October 2018, a new effort was launched into influencing the AG to change her mind and consider offering a DPA. The method of getting around the determination of the DPP was that the AG seek an independent advisory from an eminent jurist given the lack of precedent for a DPA. Mathieu Bouchard called JWR’s Chief of Staff and requested consideration of the option of seeking an external legal opinion on the DPP’s decision not to extend an invitation to negotiate a DPA.

On 20 October 2018, SNC filed a federal court application seeking to quash the DPP’s refusal to enter into a mediation agreement and a judge was now asked to examine the DPP’s discretion. On 26 October, JWR’s chief of staff communicated to Mathieu Bouchard that the possibility of the AG intervening was moot since the matter was now before the court.

Gerry Butts in his testimony confirmed that Mathieu Bouchard and Elder Marques had a discussion on 22 November with the former AG about a memo prepared by lawyers in the Department of Justice discussing the option of seeking counsel from an eminent jurist. JWR was irritated about even holding a meeting and insisted that the DPP Act. Section 15, Section 10 ensured prosecutorial independence as a constitutional principle. JWR insisted that Bouchard and Marques were interfering. She had made a decision not to intervene.

JWR concluded that representatives from the Ministry of Finance and the PMO were kicking the tires; she had said no and her mind had been made up; they needed to stop; this was enough. As JWR argued, “We either have a system that is based on the rule of law, the independence of prosecutorial functions and respect for those charged to use their discretion and powers in a particular way, or we do not…The consistent and enduring efforts, even in the face of judicial proceedings on the same matter and in the face of a clear decision of the director of public prosecutions and the attorney general to continue and even intensify such efforts, raises serious red flags.”

At the end of a two-hour meeting over lunch between JWR and Gerry Butts at the Château Laurier Hotel on 5 December requested by JWR, she asked for Butts’ opinion on the SNC-Lavalin file. He insisted he had no expertise on the issue but understood that the prospect of appointing a retired Supreme Court Justice to advise on the situation was being discussed between the PMO and her office. Though what Elder and Mathieu had proposed was unprecedented, so were DPA remediation agreements. The referral for advice would help clarify the AG’s powers in this and any subsequent case. Nevertheless, it was her call. Gerry insisted that he had not applied any pressure while JWR recalled that he had.

What then followed was the ignition key which eventually blew the whole dissension over how to handle the DPA into the open with the minor cabinet reshuffle, a matter that I will visit in my next blog.

With the help of Alex Zisman

The SNC-Lavalin Affair – Jody Wilson-Raybould (JWR) Part I

There have been two critical developments since my last blog. Michael Wernick announced his retirement as clerk of the Privy Council because he had lost the trust of the opposition as a direct consequence of the SNC-Lavalin affair. Second, Justin Trudeau appointed former deputy prime minister, Anne McLellan, as a special adviser to consider the recommendation of both Jody Wilson-Raybould (JWR) and the former Justice Minister, Irwin Cotler, that the roles of Minister of Justice (MJ) and of Attorney General (AG) be split. McLellan was also charged with reviewing the operating policies and practices in inter-ministerial communications and between public servants and political staff. The affair keeps rolling along; a review of the legal and political history is critical.

SNC-Lavalin is a worldwide behemoth engineering and construction company.  Currently, about one-sixth of its over $9 billion income stems from Canadian government contracts and another one-sixth from provincial and other domestic contracts. As indicated in the previous blog, from 2000-2012, SNC-Lavalin had developed a reputation for engaging in seedy practices in obtaining such contracts. One question was whether it had reformed sufficiently so that the company could obtain a deferred prosecution agreement (DPA) for its alleged bribes in Libya under the Gaddafi regime. Under current rules, if SNC-Lavalin is convicted, that would mean a 10-year ban on SNC receiving federal contracts.

After engaging in discussions with various parties, a provision for deferred prosecution agreements was included in the March 2018 omnibus budget bill after lobbying from SNC-Lavalin following charges against SNC-Lavalin in February 2015. After the election of the Liberals, numerous meetings took place over two years between SNC-Lavalin and personnel from the office of the Minister of Finance, Morneau, including Francois-Philippe Champagne, Morneau’s parliamentary secretary and senior policy adviser, Robert Asselin.

The DPA was not just a product of the self-interest of big business. In 2011, the Organization for Economic Cooperation and Development (OECD) country report on enforcement of its anti-bribery convention critically singled out Canada for its failure to act against bribery. Only one successful prosecution had been managed since the law was passed in 1999. In 2018, Canada was branded with “limited enforcement” with respect to the convention, largely because Canada took too long to bring cases to court, in turn, largely a result of an inadequate number of judges being appointed. It had been determined that a reasonable wait time would be 30 months. The withdrawal of almost all charges against the former CEO and Vice-President of SNC-Lavalin has been attributed to these delays.

The SNC-Lavalin affair arose after JWR resigned as MJ and AG, but it began when she occupied that office. The MJ focuses on policy in relationship to the justice system in general. As AG, wearing her other hat, JWR is the top prosecuting authority in the country. Normally, that authority is exercised by the director of public prosecutions (DPP) with respect to any litigation on behalf of the Crown. During the period of the alleged scandal, Kathleen Roussel (KR) was appointed as DPP on 21 June 2017 and continues to hold the position.

In addition to prosecutorial functions, the AG serves as the chief legal adviser to the government of Canada (GofC) as distinct from her role as MJ responsible for policy with respect to justice issues. Under the Director of Public Prosecutions Act (DPPA), the AG retains prosecutorial authority and discretion, to be exercised individually and independently. The AG has the authority to issue directives to the DPP on specific prosecutions, or even to take over a prosecution.

Though these are not cabinet decisions, cabinet colleagues, including the Prime Minister, may draw to the AG’s attention any important policy considerations relevant to how a prosecution will proceed. Those policy considerations specifically exclude partisan political ones, such as the effect of a prosecution on the Quebec provincial election. After the Action démocratique du Québec’s election victory in October. JWR alleged that in a meeting with Jessica Prince and Mathieu Bouchard from the PMO, Mathieu, Trudeau’s senior policy adviser, raised the question of the federal election and the impact of SNC-Lavalin moving its headquarters abroad. Finally, there is an inherited important political aspect to the MJ/AG position. The MJ and AG positions are considered high ranking cabinet appointments and have often been stepping stones for the holder of those positions to becoming Prime Minster.

The Public Prosecutions Act now includes a provision for Deferred Prosecution Agreement (DPA) or remediation agreements, an inclusion supported by Transparency International Canada because it was believed that the possibility of a DPA would encourage companies to voluntarily report and remedy wrong doing. At the same time, a DPA does not exempt a company from paying financial penalties or individuals from being held accountable for criminal actions. Since the possibility of a DPA has been included in the Act, it has not yet been used. Nor have detailed guidelines been established for its use, particularly around the issue of its employment when serving a public interest.

The central issue of the whole affair was whether cabinet colleagues and/or the Prime Minister’s Office (PMO) intervened in a specific decision and/or exercised untoward pressure on the AG or otherwise engaged in inappropriate behaviour with respect to a prosecution. The path to the conflict over the DPP Kathleen Roussel sent JWR a memorandum pursuant to Section 13 of the Director of Public Prosecutions Act (DPPA) entitled, “Whether to issue an invitation to negotiate a remediation agreement to SNC-Lavalin.” It remains a political issue even though a Federal Court on 8 March 2019 struck down SNC’s appeal for a judicial review.

On 4 September 2018, the DPP offered two advisories:

1. an invitation to negotiate a DPA with SNC-Lavalin not be made;

2. the decision to reject the prospect of a DPA by the Public Prosecution Service of Canada (PPSC) would not be announced at this time.

According to testimony before a House of Commons Justice Committee, on 6 September 2018, Ben Chin, Chief of Staff for Bill Morneau, Minister of Finance, implied that SNC be granted a DPA lest the SNC-Lavalin become a political issue in Quebec, since SNC had indicated that it might be “forced” to move its head office to London, UK. Morneau defended his staff in bringing to the attention of the AG the prospective job losses in Quebec, but skirted any discussion of the appropriateness of raising the issue of the October Quebec election.  

JWR was to undertake further internal work and due diligence before an announcement would be made. On 7 September, JWR’s Chief of Staff spoke to Ben Chin, Morneau’s Deputy Minister, to inform them that deputy attorney general, Nathalie Drouin, was trying to work out something at the same time as they were writing up an opinion on what the proper relationship should be of the AG to the PPSC. Reflections on both these matters were written up and a list of options provided to the PMO as well as an opinion on the AG’s role.

JWR requested an urgent meeting with Justin Trudeau as soon as the latter returned from abroad, but it was about another matter. Finally, on 11 September, the AG’s office informed SNC that it would not receive a DPA. SNC legal counsel, Frank Iacobucci, pursued the matter believing that the decision was not final and was still negotiable, perhaps a reasonable conclusion since SNC had not been informed in writing. Iacobucci detailed the terms SNC would agree to in a DPA.

On 16 September, JWR’s chief of staff informed Elder Marques of the PMO of further discussions with representatives of SNC. She communicated what had been decided; the Director does not want to negotiate a DPA. However, the deputy minister was prepared to get outside legal advice on the issue. That was the wedge that they had hoped for and they rejoiced. Was JWR open to that suggestion?

The matter was not just left at that. Once again, the impact on the Quebec election was raised and the hope was that a more reasonable solution might be found before the SNC board met on 20 September. JWR’s back was up by this point and she informed the PMO’s office concerning prosecutorial independence and a concern re interference in the independence of the prosecutorial functions. JWR also did, as Morneau contended, contact Morneau about the issue, almost two weeks after Chin communicated the Ministry of Finance’s concerns. However, what Morneau did not say was that the contact had been made to remonstrate Morneau for raising the issue of jobs with JWR and that such expressions of concern, according to JWR, were inappropriate.

The question anyone reading this timeline has to ask, was why did the PMO and the Ministry of Finance not drop the matter then and there? Representatives from both the finance minister’s office and the PMO insisted that they did not want to cross any lines and that the decision was JWR’s alone to make. A request was made that JWR directly contact Trudeau on the matter. JWR concluded that it would be both inappropriate for her to intervene in a DPP decision and that no DPA should be pursued.

On 17 September, JWR met with both the PM and Michael Wernick, clerk of the Privy Council, primarily over another matter, but the issue was raised by the PM concerning Morneau’s contention that she take into account the impact of her decision. JWR reiterated her position. The PM asked for help in finding a solution. JWR insisted that she could not and did not want to go beyond what she believed was her proper authority to enter into negotiations. The DPP had decided and she had exercised sufficient due diligence to back that decision.

Justin Trudeau raised three issues: a) potential loss of jobs; b) the election in Quebec and c) the fact that he was an MP from Quebec. JWR asked: “Are you politically interfering with my role, my decision as the attorney general? I would strongly advise against it.” JT insisted he was not interfering at all but simply was asking her to find a solution. Michael Wernick agreed that all of the above had been discussed and reaffirmed that the issue of job losses and the effects on the Quebec election had been raised, but insisted that it was his proper role to remind federal officials of potential impacts of federal decisions on provinces. In any case, JWR agreed she would discuss the issue with her staff, would organize a meeting with Michael, herself and her DM, but reiterated that she had made up her mind.

Gerry Butts, who had not attended the above meeting but had been briefed on it, in his testimony before the Justice Committee, raised the question: If the Attorney-General had made a decision, and communicated it to the Prime Minister and Clerk, why would there be a next step at all? Why would the AG take and solicit meetings on a closed matter? I myself think the answer is obvious, the PM had requested that she do so.

Gerry’s second query was, “Why would the Attorney-General not communicate her final decision in writing to the Prime Minister?” since putting her position in writing was her preferred mode of communicating. I believe the answer to that is also obvious. The topic could be embarrassing to the government and, especially, the PMO. Better then to communicate her rejection of those repeated requests orally. Appointment of a Supreme Court justice, the TMX pipeline process, and the work of the Cabinet Committee on Reconciliation were not politically sensitive issues where fundamental principles seemed to be at stake.

On 19 September, Michael Wernick and JWR met. Wernick stressed that the issue was only about job losses and not politics. The determining date was the next day when the SNC-Lavalin board would be meeting. However, JWR reiterated her position that her deputy not meet with the DPP and that the DPP’s decision had to be respected. Could JWR not communicate to the DPP the public interest argument? JWR insisted that would be inappropriate.

Elder Marques and Mathieu Bouchard from the PMO also barged in and asked JWR’s chief of staff for an update. The latter relayed a summary of the meeting with Michael Wernick. Could not there be “an informal” outreach to the DPP? JWR’s chief of staff said that would be political interference. Morneau also raised the issue with JWR in the House, reiterating the concern with loss of jobs, and received the same reply.  

It is important to recognize how the timelines and substantial points from both sides were overwhelmingly in agreement. The interpretations and significance were not. Why didn’t Justin Trudeau call the dogs off?

To be continued.

With the help of Alex Zisman

SNC-Lavalin – Law and Ethics

There are many evaluations and many points of view on the SNC-Lavalin Affair in Canada. This is mine. But I cannot help noting that neither mine, nor that of anyone else focused on the issue, matters a great deal to the ordinary Canadian, whomever that person is. However, it is certainly a focus of concern and analysis for the chattering classes. As observed below, currently the issue also matters to enough people, possibly to swing the next election. Therefore, it is important to understand and evaluate what has taken place.

I will deal with the affair in a series of blogs to offer a reasonably thorough analysis so that these writings can also be used as a reference. As currently planned, the blogs will cover:

  1. SNC-Lavalin, law and Ethics – an Introduction (this blog)
  2. Jody Wilson Raybould (JWR)
  3. The Government’s Defence
  4. Issues:

a) The Possible Deferred Prosecution Agreement (DPA)

b) Intervention, Pressure or Inappropriateness

c) Motivations

d) Resignations

    5. Media Coverage

    6. Political Implications

David Coletto and Bruce Anderson of ABACUS Data polled Canadians regularly over the course of the controversy as it initially unfolded, first prior to The Globe and Mail story on 5 February 2019, then just prior to Jody Wilson-Raybauld’s resignation from cabinet on 26 February 2019, and then followed by rolling 3-day surveys from 28 February to 4 March 2019. What were the results? Were Canadians following the issue and did they believe the Prime Minister should resign?

Roughly, Liberal support dropped over the period by 3%, virtually all of that drop in the first phase of the “scandal.” PC strength grew by the same amount so that the party ended up with the largest lead of 6% that it has had over the current Liberal government. The Green Party increased in strength, largely at the expense of the NDP, but again only in the first phase of the scandal. It is not at all clear what this shift had to do with the affair.

The shift towards the Conservatives has largely taken place in Ontario and the three provinces from Manitoba to Alberta. The bigger news, perhaps, is that support for Justin Trudeau dropped far more than support for the Liberals, approvals declining 11% from December to the end of the first week in March; disapprovals rose 8%.  The meagre good news for the Liberals – over the period, Andrew Scheer has consistently polled below that of Justin Trudeau, except that Justin lost sufficient support to leave him only marginally ahead of Andrew Scheer.

One might conclude that the SNC-Lavalin Affair did have an impact on voters, but a deeper probe suggests that this was more because Trudeau’s reputation was further tarnished, not, in my estimation, from the substantial issues at stake, but because Justin’s political image was damaged by the discussion, either because of the way the Liberals handled the issue or because of the substance or both. I suggest that the problem lay in the way the “scandal” was handled. 40% of Canadians, tuned into the issue to some degree. That in itself is revealing.  

Bruce Anderson concluded that, “a substantial enough number of people have been following the SNC-Lavalin question, and the narrative they have been exposed to, has shaken up the political landscape, and created opportunities for the Conservatives and greater risks for the Liberal Party,” but no conclusions can be drawn about the impact on the October election, eons away by any political measure. However, the increased risk to the Liberals is evident in David Coletto’s observation that, “More people now have a negative view of the Prime Minister than a positive one – the first time since last March that our surveys have found this.”

I do not believe my analysis will have any significant impact on such polls. I believe the results are products largely of impressions rather than analysis, though I have generally found the coverage in The Globe and Mail, the newspaper that originally broke the story, to be generally very good, I believe a more comprehensive analysis is required. I will draw my own conclusions and share them with you.

In today’s blog, I focus on SNC-Lavalin itself. What is the extent of SNC-Lavalin’s use of bribery in obtaining business in Libya and what is its significance? Has there been a record of domestic corruption? Have SNC- Lavalin personnel, such as former CEO Pierre Duhaime, benefited from such corruption?

The last is easiest to answer. On 1 February 2019, Duhaime “pleaded guilty to a charge of helping a public servant commit breach of trust for his role in a bribery scandal linked to the construction of a $1.3 billion Montreal hospital.” SNC-Lavalin had been accused of defrauding the McGill University Hospital Centre (MUHC) of $22.5 million in a bid-rigging scam ensuring SNC would win the contract. The bribery scandal received a great deal of notoriety over the role of Arthur Porter, the former head of MUHC, who allegedly benefitted personally from the fraud, but he was never brought to trial and in 2015 died of lung cancer in Panama to which he had fled when the scandal broke.

In 2010, a Quebec consortium won the $1.3 billion contract both to design and build the McGill University Health Centre’s Glen Site, and, as well, maintain it until 2044. SNC-Lavalin was part of that consortium. When Duhaime was arrested in what was called “the biggest fraud and corruption investigation in Canadian history,” he was charged with ordering the secret payments to a shell company to win the contract. However, in the plea bargain, fourteen charges were dropped and Duhaime pleaded guilty to one, his failure to investigate when an employee informed him of the allegation. Further, prosecutors assented to including in the Agreed Statement of Facts that Duhaime did not know about or authorize the bribes.

A month before Duhaine’s resignation as CEO seven years ago in 2012, top executives, Vice-President Riadh Ben Aïssa and financial controller Stéphane Roy, resigned. On 10 July 2018, Aïssa pleaded guilty to the charge of using forged documents and was given one day prison time in addition to the time already served in prison and the three years that he was required to wear a tracking device after he was arrested in Switzerland and extradited to Canada. The prosecution agreed that Aïssa never personally benefitted from the scam even though he lived the high life as a top executive of SNC-Lavalin. Fifteen other charges had been dropped. At the same time as Aïssa was convicted, in a separate trial, Roy was acquitted of the two charges against him, fraud and using forged documents.

The underlying issue in the criminal investigation is not just SNC-Lavalin’s charges for fraud and corruption in connection with the alleged nearly $48 million in payments made to Libyan government officials between 2001 and 2011, less than $5 million a year, but the effect of the culture of corruption that infected the company in its overseas dealings on the domestic situation in Canada over the same period. Aïssa was closely tied in with Saadi Gaddafi, the third son of the former dictator, Muammar Gaddafi. Saadi was responsible for dealing with patronage. In return for awarding the contract to SNC-Lavalin, Aïssa arranged that 21.5 million euros and US$21.9 million be deposited into Swiss bank accounts controlled by Saadi Gadaffi.

I became familiar with SNC-Lavalin’s connection to Libya a few years ago in the course of other research I was conducting. I first became acquainted with Mexican intelligence discovery of efforts to smuggle Saadi to Mexico in the course of which I came across a number of electronic documents about the location of the over US$100 billion stolen by the Gadaffis from the Libyan people. Now that Muammar had been trapped and killed by Libyans and Saadi in March 2014 was extradited to Libya from Niger to stand trial for murder, but was acquitted, the question was where the loot had gone and who controlled it. I traced the funds to South Africa. Though it was not yet clear to me who now controlled the money and where it was, two Israeli billionaires and the Mossad seemed to be involved.

The evidence for that involvement was included in a blog a few years ago. Two of the planned series went out and when I was writing the third one early in the morning in Mexico, my screen went all fuzzy. I could not reboot my laptop. I did not know what I had done and took the computer in for repairs and, at worst, to recover the documents and data I had collected. There was evidently no possibility of either. The computer had been totally destroyed electronically. Neither the software nor the contents were recoverable. The computer expert said that he had never seen anything like the damage done. Lacking the documentation, I discontinued my writing on the missing Libyan money.  

Many however have been critical of the results of how the perpetrators of theses criminal activities get off virtually scot free and want the SNC-Lavalin charges re Libya to go to trial, not only to see the effects of corporate bribery in maintaining and enabling bloody dictators in states such as Libya, especially at a time when dictatorships are on the march around the world, but to throw light on the company’s culture of corruption.  

On the other hand, Conrad Black argues that, “Companies have to disgorge funds sometimes but they don’t commit crimes; people do, and everybody, especially in such a woolly state of affairs as this, deserves a presumption of absence of guilt. And if executives are fairly judged to have committed crimes, they face the sentences but the company continues in the hands of people with better judgment and ethics.

“SNC-Lavalin has had its ups and downs, but it is a legitimate Canadian international business success story and should not be summarily castigated as financially and ethically bankrupt (my italics) on allegations as flimsy and unsourced as these. Nor, as a country, should we be in the business of trying to drive a large and successful company into the hands of the receiver. The receivers are a bigger gang of crooks than any corrupt executives in this country going back to the CPR scandal of 1873.”

Companies do not commit crimes!!! The law says they can and do. Corporations, though not natural persons, are legal persons and can be held liable for offences committed by its personnel. Canada now has laws on the books that make is a statutory offence when a company bribes officials overseas so that there is a liability attached to the corporation, either as the principal or joint principal with a natural human agent.

The issue is not whether SNC is a legitimate corporation. It is. Nor can one determine whether the evidence behind the allegations is flimsy or not until the issue comes to trial or the investigators agree on a plea bargain. Black, however, is correct; corporate corruption and the corruption of individual agents in such corporations are difficult to prove in a court of law. Hence, the use of plea bargains.  However, the Canadian Corruption of Foreign Public Officials Act clearly and unequivocally makes it illegal for a Canadian company or its officers to use financial favours to obtain contracts.

A more general response encouraging indulgence is that this is the way the world works. If Canadian companies want to get contracts in the Third World, they have to pay bribes. This is all business as usual. It is the way the world works.

However, as indicated above, if Canada, if Canadians, if Canadian companies beget and are complicit in such crimes overseas, the cost is born by ordinary people. Further, the culture of criminality spreads to Canada. The result is a loss of faith in our financial and political institutions that end up eroding democracy and creating space for dictators to arise promising to clean up the swamp but, in reality, doing so usually be creating their own larger swamp.

That is why this issue is central to the heart of democracy. Did our highest elected officials conspire to get a Canadian company off the hook when it was accused of paying such bribes? The issue is a legal one. The issue is an ethical one. The issue is a political one beyond the cossetting and enabling role in abetting overseas dictators to rob their own people, but the rot spreads domestically to Canada. Perhaps, even more ominously, the rot strengthens authoritarianism everywhere.

Thus, the issue of whether the government suborned its own laws to get SNC-Lavalin off the hook through the use of a deferred prosecution agreement (DPA) is critical to the health of Canadian democracy. Did Justin Trudeau instruct or pressure Canada’s Attorney General to provide SNC-Lavalin with an escape hatch for criminal responsibility?

Hineni – I am here; Here am I; Here I am.

I owe you an explanation for my silence. I promised a follow-up on the SNC-Lavalin affair. Though I have been sporadically collecting notes on it, I have been unable to address the issue. I will try to do so next week.

My brother had 3 strokes and a heart attack. Thankfully, yesterday, he seems to have turned a corner. This morning, the doctors are performing an angioplasty to remove the clot in the anterior coronary artery and insert a stent. I will keep you posted periodically on his recovery.

Most discussions on the Torah and in synagogues this week are understandably about Purim and the story of Esther. However, this week’s parashat is somehow much more related to where my mind and feelings are. The Book of Leviticus (Vayikra) initial portion is mostly about the rules governing the korbanot (the sacrificial offerings) and the mikdash (the portable tabernacle) However, it is the initial verse that grabs me. 

א  וַיִּקְרָא, אֶל-מֹשֶׁה; וַיְדַבֵּר יְהוָה אֵלָיו, מֵאֹהֶל מוֹעֵד לֵאמֹר. 1 And the LORD called unto Moses, and spoke unto him out of the tent of meeting, saying:

God then provides a long list of instructions about the sacrifices. However, the book begins: “the Lord called unto Moses.” In Exodus 24:6, the glory of God settled down on Mount Sinai and the cloud covered the mountain for six days. On the seventh day, the Lord called to Moses from within the cloud. Even on shabat, the cloud of depression, which the rabbis call the cloud of glory, did not lift. God’s voice could be heard calling Moses from within the cloud. At the beginning of Leviticus, Moses was again called. But did the voice of God emerge from within the cloud?

In Exodus, a voice was heard. But the sight of the glory of the Lord was like a “consuming fire” on the mountain top. It was as if the pillar of fire provided a backdrop for the voice emerging from the clouds. I think that when God addresses humans, Moses in this case, it is often through a melancholic haze. But to hear God, the fire of life, the passion must also be present as a precondition for hearing. However, we control neither the cloud that hangs over us or the passion for life. What we can control is our willingness to listen, our willingness to hear, our willingness to pronounce, “Hineni!,” Here I am. Here I stand. Here I am ready to hear.

What do you need to hear the voice of God, particularly if you are not alone in a sanctuary or on a mountain? What do you have to hear in the tent of meeting? First, you have to shut out the distracting noise. You cannot do so physically in a hospital ward; it can be one of the noisiest places. But you can bracket the noise. This is easiest in the early hours of the day before the hubbub begins in earnest. Further, it is not just the noise from outside the hospital room that is so distracting. Even more so are the voices in your own head instilling in you the conviction that everything seems dark and confusing. The despair in that noise, the desperation, the depression, all seem to crowd out optimism and hope.

But bracketing the noise from without and the noises in one’s own head is insufficient. “And the Lord called…” The issue is not whether the call is out there, but whether you are listening for such a call. That is very hard to do when you are depressed, when most of the empirical evidence seems to contradict any possibility of hope. And no one can really tell whether you are listening. Whether it is Moses or yourself, the call of hope is the most private of calls you will ever receive. No amount of cheerleading from the sidelines will determine whether you can hear. And when and if you do hear, the evidence for your picking up the receiver will be slight. But first you have to shut out other noise. Then you have to listen. And only then will it be possible to hear.

Hear what? That it won’t be a bed of roses. That it is going to require effort and sacrifice. For in order to both listen and hear, ironically, in this most private of conversations, you also have to hear the support from around you. But it is you who has to sacrifice. It is you that has to carry the enormous burden of allowing the sun to break through the clouds. No one can do it for you. But you have to hear the command to do it for others – not for you to live a few more years, but for others to live a few more years with you around. You have to hear the call that the effort and sacrifice in the end are not for yourself but for others.

But the call comes through a cloud. You are confused. You are depressed. How can you hear through all the static on the ward, though all that booming and buzzing in your head and through all the encouraging words? The latter, even when expressed with the greatest sincerity, can’t help but be interpreted as rote, as language that imitates enthusiasm and encouragement but can be experienced as fraud. God’s voice may even boom. But can it cut through the ward noise, the internal noise and the words of encouragement that can come across as discouraging in its rhetorical repetition?

However, we can help. We have to keep our messages both sincere and simple. If someone is to listen, and if the only one that is important in speaking is the Lord, then it is critical that core information be transferred in the most concise and clear way possible. If Moses is to hear God, if Moses is to come face to face with death, encouragement is helpful, but it is a journey and confrontation one has to do on one’s own. However, you can reduce the noise as much as possible so that the voice of hope can break through the inevitable cloud of despair.

But what can we do about the distracting, the negative and the melancholy inside oneself as well as within the one who has to listen and hear? Years ago, decades ago, when I was still in my twenties. a close friend was in a bed on a hospital ward in the Toronto General. He was only in his late twenties. As the cliché goes, he was on his death bed.

Another friend flew up from New York. He sat beside our friend, he stroked the hand and the arm of my very sick buddy and then he did the most surprising thing of all. He got in bed with him. He not only got in bed, but he got on top of him and embraced him. It was an embrace that went on for only 5-10 minutes, but it seemed an eternity. Finally, in a totally surprising strong voice, my sick buddy said to H2, “What’s up? Have you come out of the closet? Are you gay?”

It was not just the quip. It was the very best signal you can imagine. My sick friend had turned the corner. The silence of touch can be more embracing than all the words of encouragement in the world. I had sat frozen in the pit of pessimism. H2 pressed ahead to cut through the cloud, not so my sick friend could hear his voice, but so he could hear His voice, the voice of hope in the face of despair.

But, in the end, Moses stands alone in front of the altar. And what does he hear? A list of instructions. Bend your toes. Lift your legs, one at a time. Bend your knees. Lift your left arm. Grip my hand. Lift your right arm. No, not your left. Your right, the one I am touching. The one I am caressing. Open your eyes. Do you see me? How many fingers am I showing you? No suggestions of hope. No promises. Just information. One bit at a time. Tenderness, not toughness. Still the doubt. Still the despair. Concentrate on practices. Concentrate on what you can do. Allow the work to begin. Still the voices of rhetorical hope burdened with despair. Allow the word of the Lord to be heard, to cut through the noise, to create an even better world. For, as in Genesis, it is with words that our world is created.

Worrying is not loving. Wishing does not require pretense. Responsibility does not entail doing for another what the other must do for himself. For it is he, it is Moses on the mount, who must hear the message. This does not mean telling him that everything is better than it is. Honesty is required. Be direct so he can directly attend to the voice that can cut through the cloud. Provide the information. Provide the source for determining its reliability. Do not exaggerate. Focus on possibilities, on resources available and on real opportunities.

If one is sick, very sick, if one is near death so that the man with the scythe is trimming your toe nails, the horseman of the apocalypse does not weigh out crumbs of bread in scanty measure, but opens up fully, completely, as H2 once did. Even if you offer a sip of juice or a spoon of yogurt, expect rejection. Expect anger. Expect even an inner rage worn away by suffering. But that anger can be cut through so that the person facing death can ask to be heard and not repeat that there is no one to ask and no me left to ask.

Moses had to be very tired climbing that mountain. Every time he appears in the inner sanctum of the mishkan, he repeats that experience. He repeats the experience of being on the death bed of his old self for forty days and forty nights. And when a loved one is in the same position, we must connect, not disconnect. I do it by bargaining to try to cut through the anger and the doubt. I have no idea if it works. But it is the best piece of rhetorical equipment in my toolbox.

Others, I know, are better, much better. They can allow their love to whisper and embrace another. They can utter a “small thin sound” that reverberates through, not just the room, but through a whole hospital and it can wrap around a much diminished body in a silken scarf. And they do so, as I observe, not so much by speaking, but by listening, by listening closely. They may not be able to hear the word of the Lord, but they seem to trust that Moses can. 

Some call it the power of positive thinking. But that always sounds trite to me. Certainly, you can accentuate the positive, but this does not entail dishonesty. Certainly, you can avoid the sound that reverberates like thunder that blocks out those whispers. Certainly, you can focus on your own positive feelings of hope. Most of all, you can be present, truly present. You may even witness the miracle embedded in every second. Maybe you may even hear your loved one say, “Hineni,” “Here I am.” It is always possible to tune in rather than tune out.

With the help of Alex Zisman

Cloud by Day and Fire by Night: P’Kudei, Exodus 38:21-40:38

After Moses finished building the tabernacle, the mishkan, the final verses of Exodus follow:


לד  וַיְכַס הֶעָנָן, אֶת-אֹהֶל מוֹעֵד; וּכְבוֹד יְהוָה, מָלֵא אֶת-הַמִּשְׁכָּן.
34 Then the cloud covered the tent of meeting, and the glory of the LORD filled the tabernacle.
לה  וְלֹא-יָכֹל מֹשֶׁה, לָבוֹא אֶל-אֹהֶל מוֹעֵד–כִּי-שָׁכַן עָלָיו, הֶעָנָן; וּכְבוֹד יְהוָה, מָלֵא אֶת-הַמִּשְׁכָּן. 35 And Moses was not able to enter into the tent of meeting, because the cloud abode thereon, and the glory of the LORD filled the tabernacle.–
לו  וּבְהֵעָלוֹת הֶעָנָן מֵעַל הַמִּשְׁכָּן, יִסְעוּ בְּנֵי יִשְׂרָאֵל, בְּכֹל, מַסְעֵיהֶם. 36 And whenever the cloud was taken up from over the tabernacle, the children of Israel went onward, throughout all their journeys.
לז  וְאִם-לֹא יֵעָלֶה, הֶעָנָן–וְלֹא יִסְעוּ, עַד-יוֹם הֵעָלֹתוֹ. 37 But if the cloud was not taken up, then they journeyed not till the day that it was taken up.
לח  כִּי עֲנַן יְהוָה עַל-הַמִּשְׁכָּן, יוֹמָם, וְאֵשׁ, תִּהְיֶה לַיְלָה בּוֹ–לְעֵינֵי כָל-בֵּית-יִשְׂרָאֵל, בְּכָל-מַסְעֵיהֶם.  {ש} 38 For the cloud of the LORD was upon the tabernacle by day, and there was fire therein by night, in the sight of all the house of Israel, throughout all their journeys.– {P}
 

After finishing the verses and the Book of Exodus, an Orthodox congregation rises and shouts: “Chazak, chazak, venitchazek!” (“Be strong, be strong, and we will be strong!”) Why the need, and the urge to reinforce the need, for standing tall, for being strong? Why the determination? What is it about the cloud by day and the fire by night that demanded such a response?

According to Rashi, citing the Talmud, the cloud was Aaron’s talisman just as the well was Miriam’s and the manna was Moses’. Why then did the Clouds of Glory disappear when Aaron died? If, as the rabbis argued, the cloud itself was glorious because it performed magical functions – flattening hills, raising valleys, destroying snakes and scorpions and generally undertaking beneficent feats – why, if that was the case, and if water associated with Miriam was also crucial to life, why, if the people cried out and rebelled when the wells went dry, why did they not cry out and complain when the cloud lifted and disappeared? Was the lifting of the cloud in any way related to the cloud of guilt that remained over Aaron’s guilt and failure to properly atone for his role in building the Golden Calf?

One possible answer – the clouds were no longer needed. After all, the clouds, the rabbis contend, originally performed the service of a rearguard to protect the Israelites from the wrath of the Egyptians following them. Thus, the IDF called one of their operations Amud Anan, translated either as Pillar of Cloud or Pillar of Defence. As the angel moved to their rear, so did the clouds. The clouds then moved into a forward position as they crossed the desert. Now, the trip across the desert was almost over. The Israelites no longer needed the clouds to navigate for them; they were entering a settled territory. Protection from the hot sun was not needed. Water to wash clothes was not needed. The rough terrain of the Sinai was behind them. But were the clouds not needed for spiritual guidance to ensure that the Israelites traveled on the correct moral path as well as the physical one?

After all. Exodus ends, not with the cloud leading the Israelites as they travelled across the desert, but as a cloud that covered the Tent of Meeting. When it covered that Tent, the Eternal moved into His home and occupied the mishkan. Only when the cloud lifted and went before them, could they continue their journey. This must provide the critical clue to the meaning and role of the clouds. Moses and the people had finished building the Tabernacle. It was shabat. God was present and in occupancy. Out of the emptiness between the cherubim and hidden in the cloudy mist, the voice of God could emerge from a portable shrine. As Nahum Sarna wrote,

The function of the Tabernacle was to create a portable Sinai, a means by which a continued avenue of communication with God could be maintained. As the people move away from the mount of revelation, they need a visible, tangible symbol of God’s ever-abiding Presence in their midst. (The JPS Torah Commentary: Exodus, p. 237)

Though the Book of Numbers does not follow sequentially in the published version, as a narrative it is what comes next when the wanderings of the Israelites in the desert are described. The desert is not just a physical entity anymore than the clouds are. Numbers offers tales of loss of faith, of distrust, of rebellion. We read of a spiritual as well as a physical journey and the people will need all the strength in the world to complete it. It is in Numbers (7:89) that Moses will finally be invited into the tent of God’s abode which he was unable to do at the end of Exodus. Have the clouds become providential by then rather than a source of intimidation?

By this time, the Israelites are totally disoriented and need to be pointed in the right direction. They are displaced persons, physically, psychologically, socially and politically. It is in that condition that they experience God as both inhabiting the mishkan and prohibiting entry. God occupies the space between the cherubim to fill the emptiness, the hollow in their hearts, that they experience as a refugee population of displaced people. Does that mean, as mediaeval commentators suggested, that the completion of the Tabernacle marked a new stage of solidarity and established a loving relationship between God and his people wherein God’s love became accessible and tangible?

The implication is that the clouds served as a new miracle drug, ketamine, for depression. After taking the drug, a patient declared, “It was like the weight in my head, the cloud (my italics) that was there for decades, just disappeared. It changed the entire course of my life.” However, the drug may also have the effect of producing hallucinations, tunnel vision and dissociative effects; people feel untethered from their surroundings.

The older antidepressants, such as prozak, target the neurotransmitters – serotonin, norepinephrine or dopamine. The new drug role in learning and memory.” Ketamine, targets glutamate, described as a “powerful excitatory neurotransmitter that is released by nerve cells in the brain. It is responsible for sending signals between nerve cells, and, under normal conditions, plays an important role in mood, learning and memory.

I suggest the cloud serves as the biblical equivalent to ketamine to stimulate learning and memory, while, at one and the same time, after the mishkan was completed, it was as if the Israelites suffered from post-partum depression. The clouds marked that depression. In one sense, up to that point, the Israelites had been encased in the illusion that they were free. They had escaped slavery. Bu mentally and emotionally, they were still slaves.

The cloud occupied and emerged from behind the curtain of the Tabernacle to expose the deep darkness, the darkness that was over the deep. For although God said, “Let there be light,” that light made the darkness behind it more vivid. Instead of love and harmony, God cast a cloud of gloom and inspired nightmares and depression, though also the way to get around that depression, through learning and memory rather than simply following the dictates of a leader or idolatry of any kind. It was as if, upon completing the mishkan, the Israelites faced the despair of what freedom entailed and became nauseous, became delirious.

As Deborah Eisenberg described a parallel experience in one of her short stories, what the Israelites must have felt, the cloud by day led them to face the fires by night, “demonic, vengeful, helpless, ardent fires as they consumed the trees that had replaced the crops – to observe the moment when, at the heart of the conflagration, the trees that sustained it became phantoms, the fire’s memories.” To understand the character and role of those clouds, one must understand the role of the fires by night that plagued the dreams, the imaginations, the nightmares of the Israelites, but which, at the same time, led to the striking core of their religion, the dedication to both learning and memory.

For if we are not to live just in the moment, if we are to live in the tension between past and future, we must face the fact that the past is a site of conflagration. Enemies from without become the enemies within. What we have left from those fires in our brains are the ghosts of pine trees. The fires are demonic. The fires are vengeful. The fires are ardent and urgent. They rendered the Israelites passive and relegated them to be potential tools of the certainties of a fascist leader. The Israelites had to face their phantoms. The clouds did not so much protect the Israelites from their surrounding enemies and from the challenges of the harsh landscape and the broiling sun, but from the fires within that would and did periodically erupt in the politics of resentment.

Stupidity is destructive and ripples through any society like the devastation of a firestorm. God occupies the space between the guardian cherubim, the guardians of memory. Memory translated into history allows one to experience the dialectic between the two, between past and future, to discover the harmony and the integrity found in the drama of history. That harmony is not bestowed on the Israelites like a blanket of love, but as a melancholic cloud that can only be lifted by wrestling with our souls, our dreams and our experiences. The journey is hard and tricky.

The journey will not allow us to live just in the present, but demands that we live in tension between the past and the future, between the ghosts of trees that remain from the consuming fires and the hopes and prospects of a better future. In the meanwhile, we cannot help being struck by a God that baffles us, by the very baffling of the unrolling of history. The very first lesson we must learn is that there is no hard line between the past and the future that will define the present. It is the present that is ephemeral whereas the combination of moisture and air that constitutes clouds allows us to feel, to be cool as we try to unlock the secrets of the deep behind the destruction of past fires.

Relish

Relish

I relish my life in San Pancho

I Recline and read

I Eat and eat, and put back on the pounds it took twelve months to take off

I Lie and sleep

I Intellectually inquire and investigate

I Sit and write

I Hop around in the pool to cool off

I relish my life in San Pancho.

The SNC-Lavalin Affair

I have been discussing American politics for so long that it is easy to forget that I am Canadian. I did make a small reference to the issue in my previous blog and introduced the subject of Treasury Board Chair Jane Philpott’s resignation from the cabinet in solidarity with former Attorney-General Jody Wilson-Raybould and Jane’s loss of confidence in the way the government had dealt with the criminal charges against SNC-Lavalin. In her letter of resignation, Jane wrote, “Unfortunately, the evidence of efforts by politicians and/or officials to pressure the former Attorney General to intervene in the criminal case involving SNC-Lavalin, and the evidence as to the content of those efforts raised serious concerns for me…The solemn principles at stake are the independence and integrity of our justice system.” Note the evidence did not lead her to draw conclusions, only raise concerns in her mind. So why did she not wait until the Ethics Commissioner handed down a ruling or the Justice Committee finished its hearings and possibly drew up a report?

I am currently mesmerized by the troubles Justin Trudeau is in over the SNC-Lavalin Affair and need to write about that even though many of my readers who are not Canadian may have only a marginal interest in the current Canadian political crisis. And it is a crisis. But should it be?

It is a crisis that should matter, not only to Canadians, but to the rest of the world. After all, it begins with an issue of corruption in the private sector of a Canadian company with a global reach. Perhaps, even more importantly at this time, it is about the stability of a country currently led by a centrist government that has been a target of disdain by Donald Trump, who launched a trade war with America’s largest economic trading partner. And it is not just about trade. For Americans who want to campaign in the next presidential election over the issue of a single-payer system for health insurance, America’s next-door neighbour offers an example of a polity where a charge of “socialism” as a vicious epithet is difficult, though, unfortunately, far from impossible, to use in characterizing Canada’s welfare state.

More to the point, given the difficulties of Donald Trump over charges of obstruction of justice, the centre of the crisis has shifted from the alleged corruption of SNC-Lavalin to the issue of whether the Prime Minister and, or, his staff in his office or the Privy Council brought untoward pressure on the Attorney General in charge of deciding whether to go forward with the criminal charges against SNC-Lavalin in a court of law. Americans may, probably very justly, see the controversy in Canada over obstruction of justice as a dispute about a few children playing in a sandbox since the offence, relative to the American situation, is so marginal and the consequences so peripheral to core political issues of international concern. But the issue is important and goes to the heart of the institutions at the core of a democracy.

I choose to write on this issue today instead of waiting to hear all the evidence when I could and will make my mind up on the issue when I have much more information than the paltry amount I have now. There is a parallel, and quieter, investigation by the Parliamentary Ethics Commissioner into whether there was a breach of Section 9 of the Conflict of Interest Act prohibiting high-level government officials seeking to influence the decisions of another official to improperly advance “a person’s private interests.” Could the efforts of Prime Minister Trudeau or his office be interpreted as efforts to advance the interests of SNC-Lavalin, its executives and shareholders? I write now because I want to pre-empt hearing some evidence. Gerry Butts, who three weeks earlier resigned as Trudeau’s chief policy advisor precisely over this issue, is testifying before a House of Commons Justice Committee today. I want to read his testimony in full preparation mode. I also do not want his input to unduly influence me since, a) he is my former graduate student and b) he has remained a personal friend.

I had already predicted that the controversy would not go away simply because Gerry resigned. In fact, the resignation, I believe, provided a dollop to help escalate the crisis. But that is neither here nor there. What matters is getting a handle on the key issues. I anticipate that, contrary to the prediction of much of the press, Gerry will not provide a counter-narrative to that of former attorney general Jody Wilson-Raybould. I believe that both Justin and Gerry respected Jody’s abilities and her integrity too much for that. I note that, although discussions and communications between Jody and the director of public prosecutions remain confidential in accordance with standard practice, on 25 February Trudeau’s government issued an order-in-council to waive any claim for solicitor-client privilege that limit what Jody could say or reveal about her discussions with Trudeau and his office. However, though I do not believe Gerry will contradict what Jody said, I believe he will provide a different interpretation of the issue. I guess that his criticisms will be about political smarts rather than integrity.

Sheila Copps, who is also currently in Puerto Vallarta, argued that Justin should “lance the boil” and kick both women out of caucus. They have damaged the party and the brand. Jody claimed that she has not been free to speak whereas there has been no effort to suppress her from speaking. Further, Copps noted, that on this issue, Jody made it clear that she had made up her mind even before the PM spoke to her. Sheila accused Jody of being unable to listen and insisted that Justin should act tougher and more decisively. Chrystia Freeland, the outstanding Canadian Finance Minister, has also weighed in defending Justin as both a boss and a feminist.

This is very different than the way much of the foreign press and some of the Canadian press have dealt with the crisis. When I read the foreign press, particularly the American press, I find it distressing that the issue is being treated as one about a politician who is losing or who has lost his “star power.” Justin was the young, energetic, untarnished representative of a new generation of politicians driven by ideas and ideals. As The Washington Post reported this morning, his “charmed” rise to power has been lost. A key issue is not the loss of Justin Trudeau’s sex appeal as a superstar politico in the political entertainment industry.

But it is not just the foreign press. A headline on a Neil Macdonald story read:

TRUDEAU’S VERBAL PORRIDGE AND SERENE SMILE HAVE CARRIED HIM ALONG. UNTIL NOW

The reality is that the shine has been off Justin’s star power for some time. Some argue that the Indian trip and his family’s dress code did him in. Others trace it to Justin and his family going on a very expensive holiday provided free by the Aga Khan, who happened to be an old family friend. Still others trace his fall from grace to his reneging on his electoral promise to reform the first-past-the-post electoral system. Or was it the enormous sum the Trudeau government paid to bail out and possibly build a pipeline that had questionable prospects? Most egregiously, for others, Trudeau has joined his southern leader in kowtowing to the Saudis while, at the same time, getting into a row with China. Whatever the trigger, Justin’s entertainment value is not relevant. However, the perception and the reality of him as a political leader are.

It is not simply of importance to Canada. Democracy is under assault across the world. Canada is a beacon of hope in this challenge to democracy. Further, unlike many of its allies, most Canadians retain confidence that they have an honest government, whatever the differences over policy. Thus, the SNC-Lavalin affair is important, not only to Canadians but to the rest of the world.

Mark Collon offers a reasonably comprehensive summary of the various issues concerning the SNC-Lavalin affair and they can be accessed at https://www.cbc.ca/news/politics/trudeau-wilson-raybould-attorney-general-snc-lavalin-1.5014271. SNC-Lavalin is facing charges of fraud and corruption in connection with almost US$36 million payments to Libyan government officials between 2001 and 2011, or under US$4 million per year.

Anyone familiar with the theft of monies from the Libyan people during these years will recognize this as a pittance. Years ago, inadvertently, I came across some key information on the quest to recover the fifty to one hundred billion dollars stolen in Libya and the location of those funds. I wrote up some of my findings in an article. It appeared that Israel’s Mossad and some Israeli billionaires had possibly played key roles in tracing down those funds and possibly sequestering them.

Shortly after my piece appeared, my computer seized up. I took it in to a service person to unlock the computer so I could at least recover my information and writings to transfer them to a new computer at the very least. I was told that this would be impossible. The problem was not with the computer’s electronics, but it appeared that someone had hacked into my computer and totally destroyed everything on it, programs and writings. Absolutely nothing was recoverable. I had no material to continue my series on locating the missing Libyan billions, though my older articles and other material had been stored on an older computer that I no longer used.

My point is simple. The SNC-Lavalin corruption case is very important to Canadians and to Canadian foreign policy promoting integrity in dealing with other states, particularly developing states. But in the overall scheme of things, the alleged corruption charges against SNC-Lavalin were not only small potatoes, but did not even rise to the level of salt on those potatoes. Nevertheless, like many such corruption issues, the after-effects in the political arena emerge as far more significant.

The case against SNC-Lavalin looked solid and, if convicted, SNC-Lavalin could be banned from obtaining contracts for ten years. But the issue is not simply the strength of a major Canadian business based in Quebec and its integrity, but the integrity of the Canadian government and its failure to maintain a wall between the influence of business and the integrity of the political process.

For SNC-Lavalin had managed to get an amendment included in the Criminal Code in a 582-page omnibus budget bill in 2017 based on a promise by SNC-Lavalin to reform and on the prospect of SNC-Lavalin’s plans to expand its Canadian operation. SNC-Lavalin President and CEO, Neil Bruce, had lobbied the Canadian government and sent a letter to Public Services Minister Carla Qualtrough to that effect to change its anti-corruption rules “as expeditiously as possible” so SNC-Lavalin could avoid prosecution by creating a plea-bargain alternative, known as a deferred prosecution agreement (DPA) between the government and a corporation which had demonstrated that it had reformed after a record of corrupt behaviour. SNC-Lavalin, he claimed, was now a leader in exemplary ethical conduct and had forfeited a great deal of business abroad to avoid improper conduct. Those changes in Canadian law would, purportedly, align Canadian laws with those of the U.S., Britain and France and allow SNC-Lavalin to operate on a level playing field.

The actual detailed changes to the “integrity regime” have still not been published, but the issue remained whether individuals and firms committing economic offences – bribery and fraud – should be spared criminal charges in order to “reduce the negative consequences of the wrongdoing for persons — employees, customers, pensioners and others (there are 9,000 in Canada, mostly in Quebec) — who did not engage in the wrongdoing.” The Criminal Code specifically excludes using nation-state economic interests or inter-state foreign relations as a reason for the application of a DPA.

Jody claimed that, in one conversation with the PM, and in others with various officials, including 11 from the PMO, the Privy Council Office and the office of the Minister of Finance (Trudeau’s chief of staff Katie Telford, his then-principal secretary Butts, PMO staffers Mathieu Bouchard and Elder Marques, Finance Minister Bill Morneau, Morneau’s chief of staff Ben Chin and Clerk of the Privy Council Michael Wernick), she had been subjected to “a consistent and sustained effort by many people within the government to seek to politically interfere in the exercise of prosecutorial discretion in my role as the Attorney General of Canada in an inappropriate effort to secure a deferred prosecution agreement (DPA) with SNC-Lavalin.” Sheila Copps in her interview on “As It Happens” on CBC quipped, if 11 discussions and 7 emails constitute pressure, Jody has no idea what pressure is. Sheila, when she was in cabinet, but especially when she was Deputy Prime-Minister, on any single issue was subject to hundreds, even thousands, of communications. She wondered aloud, what if the jobs of 9,000 First Nations people had been at stake. On the other hand, was Trudeau being a structural racist when he first offered Jody the responsibility for Indigenous Services? Jody declined (according to Butts, unprecedented) because she had spent her life fighting the Indian Act and could not in good conscience administer it.

The Attorney General in the Canadian government has an independent, non-partisan role, especially in the oversight of federal prosecutions. Jody claimed that in one conversation with the PM on 17 September 2018, the PM told her he needed a solution to the problem since many jobs would be lost without a DPA, that the company threatened to move out of Montreal and possibly Canada, and that an election was on the horizon, but denied he was pressuring her and insisted only that he was merely searching for a solution to the problem.

Jody insisted in turn that she had done her due diligence and made up her mind, as Copps noted, even before discussing the issue with the PM or cabinet. She was not going to interfere with the decision of the director even though, under Section 10 of the DPP Act, the AG is permitted to issue directives “on the initiation or conduct of any specific prosecution.” Further, Jody insisted, the only relevant factor was the criminality of the accused, even though the DPA specifically made provision for settling a case out of court. She, as minister, could neither be nor be seen to be responding to political pressure. The problem remained – when do advice and information and exchanges of views amount to pressure and even a direction?

Justin specifically denied any direction. Gerry even denied that any pressure had been applied. Trudeau had insisted that, in the end, the decision was hers to make alone. Most importantly, Jody herself stated that nothing that had transpired had been illegal.

What we do know for sure is that in October 2018, the Public Prosecution Service of Canada made a determination that SNC-Lavalin had not met the criteria for a DPA. Jody refused to intervene in that decision, though she could have issued a direction in writing to be posted in the Canadian Gazette. The issue was not that she could not intervene, but that she would not. On 7 January 2019, Jody was demoted and moved to another more junior ministry, Minister of Veterans Affairs, and expressed the belief that this had taken place because she had refused to issue a DPA for SNC-Lavalin.

The crisis unfolds. Questions to keep in mind:

Should Jody have threatened to resign if the attempt to “pressure” on her did not desist?

Should she have resigned rather than accept a demotion?

Should and will Trudeau exclude her from the Liberal caucus?

Why are Jody and Jane dealing with this matter as if it is central to the integrity of government?

Whatever the factors, has Trudeau demonstrated incompetence in managing his own ministers and his House of Commons colleagues?

What does the crisis say about recruiting two very accomplished and committed women and promoting them to cabinet when they lacked any deep roots in the Liberal party and in the day-to-day requirements of compromise needed for effective governing?

Is the whole crisis one of integrity or political management or both?