Tuesday, January 17, 2017

Apple #739: Anti-Corruption Laws and Blind Trust

Maybe you've seen some of the news articles recently saying that our President-elect has some serious conflicts of interest that he needs to resolve prior to taking office.  Maybe you even saw this statement from the Office of Government Ethics, which handles ethics issues in the Executive Branch.

Office of Government Ethics director Walter Schaub making a statement that Trump's plan for dealing with conflicts of interest is inadequate, and why. This may seem at first to be boring and procedural, but in your Apple Lady's opinion, this is what speaking truth to power looks like: should be -- calm, thought-out, supported by evidence, and determined to do what is right no matter what the circumstances may be.

For the sake of clarity and focus, I'm going to discuss only those conflicts that are related to our President-Elect's business holdings.  I'm not going to get into all the stuff with Russia, even though talking about his business holdings can very quickly lead to the Russia morass.

But that is in fact the very reason the conflicts of interest are a problem: when you have business deals with international governments and then you become a head of state, you may very quickly be faced with a situation where you have to decide which are you going to put first, the financial success of your company, or the political health of your country?  The conflicts of interest clauses in the Constitution were created so foreign leaders wouldn't be allowed to bribe our officials, nor would our officials be put in a situation where they would even be tempted.

Is the President Exempt from Conflicts of Interest? Of Course Not

The President-elect has said, "The law's totally on my side, the president can't have a conflict of interest."  Many of our laws dealing with conflict of interest fall into one group (Title 18, Section 208 of the US Code), and they include an exception for the president (18 USC 202(c) ) who touches so many parts of the government and the country's operations that it would be nearly impossible for the president not to have any conflicts of interest.  To ban all conflicts would restrict so many people from the presidency that it wouldn't be feasible or desirable.  Further, expecting the president to recuse himself or herself from any situation where there's a conflict of interest isn't workable either because there's no other person who holds that position who could act in the president's stead..  So, looking only at that part of the law, he is correct.

However, there are many other parts of federal law and the Constitution which restrict the president from receiving payments from other entities.  I'll discuss the three main places where corruption is specifically not allowed (though there are more anti-corruption laws than only these three).

This is the first place that says -- twice -- that the president must not even have the opportunity to be corrupt.
(Photo of the Constitution from the National Archives)

No Payments from Foreign Entities

The founders were very concerned about keeping the office of the president free from corruption, or even having the appearance of corruption.  So there is a clause in the Constitution -- this is present since the very founding of this country -- that says

[N]o Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

This is usually referred to as the Emoluments clause, or the foreign emoluments clause.  An emolument is any kind of payment, compensation, profit, or literally "bettering."

This is one kind of emolument.
(Photo from Vice Lounge

Interpreted strictly, any money of any kind that comes from a foreign head of state and is paid to the president could be a violation, if Congress decides that it is.  So let's say after Jan 20, the leader of Dubai stays at the hotel Trump owns in Dubai and pays his hotel bill.  This is a payment from a foreign head of state to a business that is owned by the president. Violates the foreign emoluments clause, doesn't it?

(In fact, following the election, many foreign diplomats flocked to Trump's hotel in D.C., believing it would be beneficial to them to be able to say, "I stayed at your hotel."  That hotel was even "pitching" itself to foreign officials.  Sure sounds more than iffy to me.  But let's go back to the Dubai guy in the Dubai hotel.)

Most people say yes that's a violation, but some people say no.  They argue that the payment for the room wouldn't be a payment to the Office of the President; or they say, how could a busy president keep track of all his hotel tenants and be influenced by that; or, as one CEO who stayed in his hotel is quoted as saying, “Do you think the president-elect knows who rents rooms for two hours?”

Then Trump's tax attorney said, well, he'll just donate all hotel profits from foreign governments to the US Treasury.  So, on the one hand, he can't keep track of who's staying in his hotel, but on the other hand, he'll donate all foreign payments to the Treasury.  Uh-huh.

You see how murky this can get.

No Payments from U.S. States

There is also a domestic emoluments clause in the Constitution (Article II Section 1) -- again, the founders really did not want a corrupt president -- which prohibits the president from receiving any payment from within the United States:

The President shall, at stated times, receive for his services, a compensation, which shall neither be increased nor diminished during the period for which he shall have been elected, and he shall not receive within that period any other emolument from the United States, or any of them.

So none of the states in the union can slip the president a Benjamin or two and get some kind of favorable treatment, like let's say more federal funds for that state's schools, or relaxed regulation on hospitality laws only in that state, or an executive pardon for every guy in the state of New York who's ever committed sexual assault.
Another difference between this clause and the foreign emoluments clause is that receiving payment isn't allowed under any circumstance. In the case of foreign payments, if Congress says it's OK, it's OK.  With domestic payments, never OK.

So, in our running example, what if it's not the leader of Dubai but the governor of Texas who stays in his hotel, and it's for some sort of state meeting or conference.  So the taxpayers of Texas would cover the cost of the governor's stay.  So in paying that hotel bill, is the state of Texas making a payment to the president?

Here's another example that is less directly covered by that clause, but is more realistic and no less problematic: Let's say a bill lands on President Trump's desk that, I don't know, bans some kind of building material that is found to be so hazardous it's been killing people, but his contractors used it in all of his hotels because it was cheap.  Is President Trump going to sign that law and put his company on the hook for replacing all of that building material, or opening up his properties to huge liability lawsuits?  That's a huge conflict of interest, where he would be asked to choose between the good of the public or the financial benefit of his companies.  I think I know which action he would take, but I also think most of us don't even want a president to be in that situation in the first place.

No Bribery

The emoluments clauses try to keep the president from being in a position to be corrupted.  As legal scholars have pointed out, they say the president can't accept payments, period.  With bribery laws, you have to prove that not only did someone receive money, they did something in return for that money.  The emoluments clauses say you don't have to prove the action in return; they can't accept the money period, regardless of what happens afterwards.

But there are bribery laws, and they do cover the office of the president.  So even if he could skate past the emoluments clauses, if he were shown to take some sort of action in return for a payment, he could be found guilty of bribery.

The Bribery of public officials part of the US Code (18 USC 201) is written in a very inclusive complex way, so I'll break it down for you into its digestible parts: 
  • Any public official -- high or low, doesn't matter in what office
  • who directly or indirectly 
  • receives or accepts, or seeks without ever receiving, or so much as promises
  • for themselves or for anybody else (like, family) or any other entity (like, their business)
  • anything of value 
  • in return for
  • influence in how the public official performs his or her job, or
  • being any part of any kind of fraud against the United States, or
  • influence not to do something that is part of his or her job, or
  • influencing the testimony of a witness at any kind of trial or hearing
  • shall be punished as follows:
  • fined up to 3x the monetary value of the bribe in question, or
  • put in prison for up to 15 years
  • or both
  • and "may be disqualified from holding any office of honor, trust, or profit under the United States."
So, to return to our first example, if it could be proven that the leader of Dubai's payment for staying in the Trump hotel in Dubai was directly connected to some kind of action Trump made or did not make that benefited Dubai or harmed the United States, then he would have violated the bribery laws.

Or let's say a president accepted investments made to his business from foreign investors and then in return for those investments, he lifted sanctions on that country, or if he failed to take action against that country when it had been shown to have acted in a way detrimental to our democracy, or if he said he has no problem with their actions that violate international agreements of which our country is a part, or if he in any way performed his job in any way that was colored by those "investments," then he could be found guilty of having accepted a bribe, and he would be punished accordingly.

Emoluments Clauses Precede the Bribery Laws

The anti-bribery laws are in some ways more strict, but they are more difficult to prove because you have to demonstrate quid pro quo (you give me this, so in exchange I give you that).  The emoluments clauses are like the watchdogs that try to keep the bribery from happening in the first place. They try to keep the office-holder from being in a situation where bribery could occur.

So even though the anti-bribery law would absolutely apply to Trump should he violate it, the Emoluments clauses raise their heads first. That is why people are talking about these more than they are the bribery statutes.

What complicates all this is that there is zero precedent for litigation of the Emoluments clauses.  No past president has violated them to the extent that anyone wanted to take him to court over it.  Some experts aren't even sure if a lawsuit would be appropriate because they say you wouldn't be suing the person, you would be suing the president, and that becomes a political situation and something that should be handled not in a court of law but by Congress.

How Should the Conflict of Interest Laws Be Enforced?

I think we can all agree that we do not want our president accepting bribes.  We don't even want to have reason to think that could happen.  But unfortunately, Trump and his lawyers disagree with what several people are saying is necessary action for him to take to make sure he can't be found guilty of bribery, or even have the appearance of being in a bribe-able position.

All past presidents have chosen to take steps to avoid raising any kind of doubt about their susceptibility to corruption.  They sold their assets before taking office, or they turned over detailed financial records and sat through hearings while members of Congress painstakingly combed through them, or they put their assets into a blind trust.  The blind trust is the route that most people are saying Trump should take.  Trump, through his lawyer, said he's not going to do that.

Blind Trusts

This is what setting up a blind trust looks like on paper, har har.  Really, it's the rules and the circumstances behind it that are crucial.
(Photo from eHow)

A trust is a legal name for an agreement you make with someone else when you ask them to hang onto your money for you and manage it on your behalf.  Like, your grandmother might put her bank accounts and all the stuff she owns (her estate) into a trust that is managed by a lawyer and then when she dies, the lawyer contacts you and says, Hey, your grandma left you all this money, and I've been managing it for her, but now that she's died, it's yours, what do you want me to do with it?  That's the kind of trust most people are familiar with.  But a trust can be much more general than that.

Most trusts are set up so the person managing it talks to the owner and says things like, Hey, this stock price is tanking, do you want me to sell it? or Hey, this building you owned just got bombed, what do you want me to do with it?  There is open communication between the trust manager and the owner (beneficiary) about what property is in the trust, how it's performing, and what the trust manager should do with that property.

A blind trust is set up so the owner of the property (beneficiary) does not know what's going on with it.  The trust manager has total decision-making control, and the beneficiary literally and totally trusts the manager to do a good job with the property until the beneficiary can take control of it again.  Lots of public officials have used blind trusts because they allow the person to retain ownership of the stuff, but they can't see whether the stock in such & such a company just went up because they tweeted some ridiculous remark, or whether the stock in such & such took a nosedive because they said they think that company shouldn't get any more government contracts. There is no danger of being accused of a conflict of interest because they don't even know exactly what is in the trust, let alone how it might be affected by their work as a public official.

Another element to the blind trust is the beneficiary should not even know what's in it, let alone how it is managed.  If you know you've got stock in BP, your response to the Deepwater Horizon fiasco might be different than if you didn't know you had that stock.  So what a lot of public officials have done is not only create a blind trust, but also sell or convert what they have to cash prior to putting it into the trust, and then the trust manager takes that cash and re-invests it in a way that the beneficiary knows nothing about.  That way, all the public official knows is that their money is being managed.  They don't know what form that money has taken, if it's stocks or bonds or mutual funds, or bars of gold sitting at the bottom of the ocean.

This is the course of action that some people, including Mr. Walter Schaub up there at the top, are saying Trump should take before assuming the Office of the President.

Mr. Trump's lawyers are saying no, we're not going to do that.

Trump's Proposed Trust

Trump's attorney Sheri Dillon delivering the news that -- surprise! -- they're going to do things their own way. 
(Photo from LawNewz)

What Trump's lawyers say they are going to do is as follows:
  • Convert the hundreds of entities into a single trust
  • To be managed by Trump's two sons plus a long-time Trump executive (these three are "the management team")
  • An ethics adviser, as yet unknown, will be assigned to the management team, and the ethics adviser will have to approve everything the team does
  • Trump has already sold his stock in publicly traded companies, so the cash from those sales will go into the trust.  
  • All the properties he owns -- golf courses, hotels, resorts, etc., -- he's going to keep, and those will go in the trust.  
  • All currently pending deals will be terminated, and no foreign deals will be undertaken while he's president.
  • Domestic deals will be allowed, but "will go through a vigorous vetting process" done by the ethics adviser.  
  • Trump will continue to see profit & loss statements, but at a top-level only.

His lawyer says it's ridiculous to expect him to sell everything because whatever price he got for his properties people would say was unduly influenced by his impending office.

His lawyer says that he couldn't sell his businesses to his children because they couldn't afford it, so they'd have to get third-party investors, and that would raise concerns.  Selling it to anybody else, well, apparently that is unthinkable because "President-elect Trump should not be expected to destroy the company he built."  In other words, It's my business and I'm not going to get rid of it.

He also says his brand is part of the business, and if he were to sell it, it would lose its value because it's not associated with him anymore.  Conversely, he's also said that he couldn't really sell it because he would retain royalty rights for the use of his name, and he wouldn't be able to accept royalty payments. So gosh, gee whiz, and golly, I just have to keep my doggoned business.

But there are enormous problems with all of this.  Legal experts and ethics advisers across the country agree this plan is insufficient. 
  • His sons controlling the business along with a long-time executive -- that's not much of a blind wall there, is it?  Especially since he asked for security clearance for all of his children.
  • Continuing to see profit & loss statements is not absenting himself from running the business at all, but maintaining an awareness of its performance.  Not much trust placed in someone else, is there?
  • This ethics adviser to be named later, there's nothing to prevent this person from being a toady yes-man and approving everything the the management team does, regardless of ethics concerns.
  • The properties he does keep open up enormous conflicts of interest because any legislation he considers having to do with labor laws, environmental regulations, infrastructure, land use, banking regulations -- more -- would impact his properties, which he has a vested interest in wanting to protect.
  • Further, his properties with his name on them are a gigantic target to foreign terrorists.  Some wackadoo in InsanityLand sees TRUMP on a building in their city, suddenly that's not only a sign of capitalism run amok, that's a direct connection to the President of the United States.  Wackadoo terrorist bombs that Trump building, and he's carrying out a direct threat against the President.  This puts the lives of all the people who work in those buildings are in danger.  That's a nightmare that no one wants to see happen -- right?
(To see one suggestion about how Trump could resolve some of these conflicts of interest without divesting entirely from all his businesses, see what The Economist recommends.  Recommendations include combining all businesses into one entity, making its operations transparent to the public, and having it run by an independent management group, not his children.)

There are even more potential conflicts of interest than what I've listed here (The Atlantic has described in detail some of the more troubling international ones).  The number and scope of issues is, to quote several experts on the subject, "staggering."  And this is true only of the issues that we're aware of.
We don't even know the full scope of the conflicts because we haven't seen his tax returns.  We don't know to what entities he owes money.  Whoever he owes money to, he has every opportunity now to see that he gets his debts forgiven.  That would absolutely violate the bribery laws, but if we don't know what's in his tax returns, we won't know if he's broken the law, or at the very least, if he has motive.  

Even a blind trust can be manipulated, as Mitt Romney expressed.  But Trump won't even do this much.

What You Can Do

Trump maintains that the public doesn't care about this stuff.  He says people don't want to see his tax returns, that only the media wants to see those, and the public isn't concerned about minor details like these.

I, for one, and extremely concerned.  I am very worried that the only ones who have created a blind trust is us.  By electing him president without seeing his tax returns, we have put our blind trust in him.  We have blindly trusted this salesman and we are about to hand him the keys to the highest office in the land.  If he turns the office into a pit of corruption -- or if he even appears to turn it into a swamp of shady dealings -- that is going to damage our country enormously, down to our very belief in our own democracy.
This is what the world looked like in terms of levels of corruption in 2013.  Our country looks very unusual on the world's scale in these terms.  If we don't do something about this conflict of interest issue, I guarantee our country's level of corruption will increase.
(Image from IndustryWeek)

Ethics experts say that since there is no history of litigation surrounding the emoluments clauses -- because no president has ever been sued for violating them -- and since it's not even certain in what capacity the president COULD be sued, the only real recourse we have to keep the president -- any president -- in line is Congress.

So if you are concerned about these conflicts of interest, if you would like to ask that more be done to protect the highest office in the land from even the suspicion of corruption as our founding fathers intended, start contacting your Congress people ASAP and let them know of your concerns.  
Find your Representative in the House: http://www.house.gov/representatives/find/ 
Find your Senator: https://www.senate.gov/senators/contact/
An app called Call to Action supposedly helps make contacting representatives in Washington even easier. 

See also embedded links in the entry
 Marketwatch Jan 13, 2017
Complete transcript of Trump's press conference, Jan 11, 2017
Washington Post, Foreign leaders flock to Trump's DC hotel, Dec 7, 2016
LA Times, Trump plans to donate hotel profits, Jan 11, 2017
Chief Counsel, Constitutional Accountability Center, On other emoluments clauses, Dec 19, 2016
Fortune magazine, Guide to the emoluments clause, Jan 11, 2017
Fortune magazine, What's a blind trust anyway? Jan 12, 2017
Forbes, Why Trump won't use a blind trust and what his predecessors did, Nov 15, 2016
Office of Government Ethics, Report on Conflict of Interest Laws Relating to the Executive Branch, Jan 2006
CRS Report for Congress, The Use of Blind Trusts by Federal Officials
The Atlantic, Trump announces plan that does little to resolve conflicts of interest, Jan 11, 2017
The Guardian, Blind trusts, Jan 13, 2017

Monday, January 2, 2017

Apple #738: Knocking on Wood

I have had a request! My friends & I were talking about 2017, and how we hoped it would be better than 2016 in many ways. One of our number, Kalonice, knocked on the table for good luck. Then she said, "Where does that come from, knocking on wood?" Naturally, I had to find the answer.

(Image from Woman's Day)

Before I do any research, I'm going to put forth a guess. I'm going to say it has something to do with touching the wood of the crucifix.

  • I am wrong! The custom goes back way before Christianity.  
  • As with many of our traditions that have been around for a very long time, no one can say with certainty what is the exact timing or origin of the practice. But it goes all the way back to pagan times when Europeans -- perhaps the Druids or the Greeks -- believed that spirits lived in trees. 

One rendering of what a tree spirit might look like.
(Image from Tana Hoy)

  • So when you spoke of your hopes for good luck, you'd touch or bang on the trees or the wood of your house or whatever wood was near to hand from which the spirits might spring. Researchers think original idea was possibly that you were asking the spirits to make this good luck wish come true. Or maybe you were acknowledging that they are in charge, and knocking on their wood is like saying, "Hello, I know this is up to you, so I hope you'll allow this wish to come true."
  • Over time, the tradition got co-opted by the non-pagans.  Christians began saying that knocking on wood was a way of saying, This is up to Jesus, so I'm going to knock wood which reminds me of the crucifix.  So I was kind of right, but there was a more-right answer that came first.
  • At some point, the idea must have changed from propitiating the tree gods or essentially praying to Jesus to give you good stuff and became a superstition that tried to keep evil-minded spirits from bringing you bad luck.  Around the 17th century, when people said "knock wood" (or in Britain, "touch wood"), they would add the Latin phrase "absit omen," which means "may the omen be absent from me."
  • Keeping away the bad luck seems to be the prevailing attitude today, so much so that I'm tempted to disagree with the researchers and bet that this might have been the idea from the beginning.  Lots of societies hold the idea that if the spirits find out that you have too much good luck, they'll  foul things up for you. You know how this goes. As soon as you think everything's cake, something drops out of the sky -- or maybe from the treetops -- and wrecks your cake.

Someone left the cake out in the rain -- not just bad but also bad luck.
(Photo by Doris Rapp on Flickr

  • Here are similar expressions in other languages. In some countries, the expression is meant to ward off evil spirits, and in others, it is meant to seek the protection of the good spirits.
    • Arabic: امسك الخشب (imsek el-khashab), means knock wood, but gets translated as "God is the Protector"
    • Brazilian Portuguese: bater na madeira
    • Czech: klepat na dřevo
    • Finnish: koputtaa puuta
    • Greek: chtipa xilo
    • Swedish: ta i trä   
  • German lore has it that the devil can't touch oak, so if you knock oak, you're proving that you aren't the devil. 

Either Jack proves the German lore wrong, or that door is not made of oak. This seems especially creepy, though, knowing that knocking wood is supposed to keep the badness away, and here the bad guy is doing it, wanting to be let in so he can bring about more badness.
(The Shining gif from Metro News)

  • There's also a story from Jewish history. When they were being persecuted during the Spanish Inquisition in the 1490s, the Jews were hiding in synagogues and temples, which were made of wood.  They devised coded knocks to indicate they weren't the bad guys so their fellow Jews would let them in. Knocking on wood was a thing that helped them, resulting in good luck.   
  • I don't know if I buy this story because the only places where I've seen it recounted are on sites that don't have a Jewish focus. Sites maintained by people with a Jewish background say it's a Christian practice that they've adopted.
  • So while it's hard to say exactly when the practice started, and while some cultures mean it to keep the bad stuff away and others mean it to bring the good stuff, what does seem to be true is that cultures & languages throughout time and around the globe knock wood.

Really going for the good luck, or touching wood all the way around the tree, hoping that 2017 will be better than the auguries currently show.
(Photo posted by Shouvik Chatterjee at Quora)

Mental Floss, Why Do We Knock on Wood?
Today I Found Out, Why Do We Knock on Wood?
The Phrase Finder, Knock on wood
Metro News, Why do we touch wood to avoid bad luck?
Touch Wood for Luck, The History & Superstition of "Touch Wood"
Islam in Everyday Arabic Speech, page 115

Monday, December 12, 2016

Apple #737: An Election Re-Do?

On Saturday, former CIA operative Robert Baer told CNN that the information he's seen so far about Russian hacking suggests they did interfere in the US Presidential election with the express goal of helping one candidate (Trump) and hindering another (Clinton). He said, "When a foreign country interferes in your election and the outcome is in doubt, . . . I'm not a constitutional lawyer, but . . . I would like to see the evidence, because if the evidence is there, I don't see any other way than to vote again."

So, is this possible?  Could the election not really be over?  Could we be going through the whole thing all over again?

  • One of the other things Baer said was that "If we [the CIA] had been caught interfering in European elections or Asian elections or anywhere in the world, those countries would call for new elections."
  • Since all of this is on an international scale -- Russia involved in US politics, Baer using European or Asian countries as models -- I wondered what international law says about all this.

  • The UN does stipulate in its charter that violent or physical intervention by one country should not be used to sabotage an election in another.  The UN went further in 1965, stipulating that “No State has the right to intervene, directly or indirectly, for any reason whatever, in the internal […] affairs of any other State” and that that every “State has an inalienable right to choose its political, economic, social and cultural systems without interference in any form by another State.”
  • What this has meant in practice is that everybody agrees that no foreign country is supposed to go in and physically alter another country's vote or establish some coup to change the results of an election, or kidnap one of the candidates and assassinate them.  That is, everybody pays lip service to that.  But several countries -- including and especially the US -- have violated that agreement with little or no repercussions.
  • This is when the interference is obvious or violent.  But when it's more indirect -- distributing fliers with false information to get citizens to vote a certain way, pouring millions of dollars into the desired candidate's campaign -- the rules get a lot more vague. Nobody seems willing to define exactly what constitutes this fuzzier kind of interference and what doesn't, nor do they seem willing to do much to try to change such behavior, or to interfere yet again to undo whatever interference happened.
  • So there's been a lot of interference by a lot of countries, in spite of those rules.  One of the most notorious offenders has been the US. Here is a short list of occasions when the US is known to have interfered with, unseated, or downright overthrown the government in another country (NACLA, WaPo, Politico):
    • 1906 US interfered in Cuba's presidential election
    • 1945-1946 US interfered in Argentina's presidential election
    • 1948 US interfered in Italy's presidential election
    • 1953 US interfered in Iran's election for prime minister
    • 1953 US interfered in the Philippine's presidential election
    • 1954 US unseated Guatemala's sitting president
    • 1961 US assassinated the ruler of Congo
    • 1963 US supported a coup against the leader of Vietnam
    • 1973 US supported a coup in Chile that put Pinochet in power
    • 1984 US tried to sabotage Nicaragua's presidential election
    • 2002 US interfered in Bolivia's presidential election
    • 2002 US interfered in Nicaragua's presidential election
    • 2002 US used the IMF to influence Brazil's presidential election
    • 2004 US interfered in El Salvador's presidential election 

General Pinochet and Henry Kissinger shaking hands after the coup & killing of Chile's president. Pinochet's bloodthirsty head of secret intelligence, Manuel Contreras, was a former member of the CIA.
(Image sourced from Steemit)

  • As the US has done such things, so has Russia.  One political scientist finds that US and Russia "intervened in 117 elections around the world from 1946 to 2000 — an average of once in every nine competitive elections.”
  • So, first of all, it's beyond disingenuous for an ex-CIA guy to act all shocked and say that if we had interfered in another country, they would do their election over again. Um, no.
  • Also, pretty much the rest of the world is laughing at us for pointing at Russia and shouting, "Hey! They messed with our election!"
  • But most Americans could give a rat's toothpick about international politics, or the UN, or what we did in the 1950s.  As Jack Goldsmith from Harvard Law put it, this is America this has happened to. 
  • Also, the interference seems different.  They used computers.  They hacked into our stuff.  We've all got phones & computers & everything, so it's like those Russians touched all our stuff.  Then they posted whatever dirty laundry they found (was it even that dirty?) about the candidate they didn't like on a site that some people considered to be rogue but maybe necessary.  It seems like an invasion, a betrayal, and it's scary. Because if they did that, what else could they do?

Screenshot of Fancy Bear website, boasting about having hacked the Olympics' anti-doping agency. No, the Russian government would have no interest whatsoever in the anti-doping agency being undermined.
(Image sourced from VOA)

  • Another reason this situation seems new is that it seems possible that "a presidential candidate of one U.S. party, [Donald Trump], might be working with—or at least supportive of—a major foreign adversary’s efforts to covertly damage the rival presidential candidate.” (again, Jack Goldsmith in the Atlantic)
  • In other words, was it at least partially an inside job?  By the guy we have just elected president?
  • It may be very difficult to draw a direct and clear line from The Candidate to the Russians. The CIA seems to be having some difficulty drawing the line to the Russian government.  They can talk about Fancybear all they want, but was that group operating under orders from Putin or his officials?  If the CIA knows, they're not saying so far, perhaps because they don't want to reveal how they came by the information and risk exposing people working covertly in the field.
  • If they find it difficult to draw one side of the triangle, it might not be possible to draw the other side, from the Russian government to Trump.
  • But maybe proving that wouldn't even need to be possible.  Would it be enough to say the Russians interfered in our election, and we don't care what the UN or anybody else thinks, we want to have a re-do?  Could we do that?
  • I suppose we could do anything, if enough of us decided we wanted to.  There have been election re-dos before. Here are a few very recent do-overs:
  • In all of those situations, the reason for the re-do was because of evidence of some kind of ballot-related fraud, or even the perception of such fraud -- a suspicious increase in the number of absentee ballots, hundreds of thousands of votes untraceable to actual people, tens of thousands of ballots opened too early.
  • In this case, we don't have such ballot-related evidence.  We have a lot of emails, though.
    • Oh, my word, there is a gigantic joke just sitting there.

  • But seriously, folks, a re-do just isn't very likely.  There's no international body that would tell us we had to have one, we probably wouldn't listen to them anyway, and even if some internal group like the Election Assistance Commission or perhaps some Senate committee on elections recommended a re-do, the people who are in charge of things -- Congress -- have to vote for a re-do. And we all know how Congress can hardly ever agree on anything, especially if what's at stake benefits one party over the other.
  • And the problem we're talking about is that fuzzy kind of interference.  What happened wasn't a direct kidnapping or coup, and it wasn't even like the Russians stole a bunch of ballots or changed them.  As UC-Irvine Law professor Rick Hasen put it, “It is very rare for courts to declare a revote, and these do not look like the circumstances where courts would declare one. I have never seen anyone try to redo an election based upon the release of information which influenced voters.” (LawNewz)
  • But even if the snowball's chance happened and Congress decided on a re-do, logistically, how could that even happen?  It takes county boards of elections about 2 months to 100 days to prepare for an election, and that's when they have a lot of advance notice when one is coming.  How would we round up all the voting machines and poll workers and everybody else in time to have a re-do vote before January 20?

It took Haiti more than a year to re-do the election that was declared to be fraudulent.
(AP Photo by Ricardo Arduengo, from Indian Express)

  • So, for all these reasons and more, I think that Robert Baer guy was full of it.  He's generally regarded as knowing his stuff when it comes to CIA matters.  But in this instance, I think he's off the mark.  My suggestion is don't count on a re-do.  Focus your energies elsewhere.

CNN Robert Baer's remarks
LawNewz's opinion on Robert Baer's remarks
Michigan Journal of International Law, Review of UN laws on foreign interference in elections
Foreign Policy Initiative, discussion on Russian interference in foreign elections
Atlantic, opinion on Russian interference, w remarks by Goldsmith
Washington Post, opinion on Russian interference, w/ remarks by Tokaji & Lewis
NACLA, history of US interference in foreign elections
Politico, history of US interference in foreign elections
Washington Post, history of Us interference in foreign elections
Fox2Now, St. Louis election fraud
Fox2Now, St. Louis election fraud part 2
CBSNews, Haiti election re-do
FoxNewsWorld, Haiti election re-do part 2
AFP via Yahoo News, Austrian election re-do
Reuters, Austrian election re-do part 2
Sampson County, NC, Board of Elections, timetable for election preparation
Wayne County, Ohio, Board of Elections, video on planning for an election

Sunday, December 4, 2016

Apple #736: Cabinet Appointments

With all the news about Trump's picks for this or that cabinet position, and particularly about the response to his choice of white supremacist Steve Bannon as his official strategist, I realized I had no idea how this cabinet appointment process works. Lots of people are sending their opinions about Bannon to members of Congress and to Trump himself, but I've been thinking, if these are appointments, what's Congress got to do with it?  Can't Trump just do whatever the heck he wants?  Another politician might listen to people sending reams of letters and postcards to his mailbox, but I doubt Trump would.

So, first, how does the Cabinet appointment process work, and second, if you seriously object to a particular appointee, what can you realistically and effectively do about it?

President Obama's Cabinet attending a meeting in the White House Cabinet room.
(Photo from the White House)

The Few Basic Rules of Appointments

  • Another rule also applies to cabinet positions, and that is a law that was created in 1967 to guard against nepotism in the cabinet. Some people say the law was passed because LBJ didn't like it that JFK made his brother, Bobby, Attorney General. Others say it was created because the office of the Postmaster was staffed with all sorts of cabinet officials' wives.
  • This 1967 law says any public official may not appoint a relative to any civilian position in a department which the official oversees. So, if you're president, you oversee any cabinet position, so all of those are off-limits.
  • But it contains a second provision which says that if the official appoints a relative anyway, in spite of this rule, then that relative cannot be paid. 
      • (Presumably Bobby Kennedy & those pesky wives were already in those positions so they said let's just take them off the payroll.)
  • The upshot of this law is that, theoretically, Trump could appoint all of his children to cabinet positions, and if the Senate said OK, they could hold those positions but not draw a salary.

Slightly edited photo of the Trump children & their spouses, and Melania.
I think Barron would probably not be confirmed as a Cabinet appointee.
(original at Business Insider)

  • Other than these two laws, the President can pretty much appoint as he or she sees fit.

Most Executive Branch Appointments Are President-Appointed Only

  • There's an exception to the Senate-approval requirement, and that is, in general, if the cabinet position is part of the executive branch, or part of the White House, the Senate has no say. Those are all straight-up presidential appointments.
      • Some executive branch positions do require Senate approval, such as the Director of the Office of Management and Budget, the US Trade Representative, the Director of Science & Tech Policy (vacant as of 2012), the Chair of Environmental Quality, etc.  But the vast majority are Presidential appointments, and many are even career appointments.
  • But all of this means that the Senate has no say whatsoever over who the President chooses to be White House Chief of Staff, or Strategic Advisor, or almost any other White House office position.
  • Which further means that however many e-mails or phone calls or postcards that you may have made or sent to your Senator saying how objectionable you find Steve Bannon's appointment to the White House, your Senator can't really take any action.  You may feel better having registered your opinion with some government official, and doing something to get your opinion heard may be better than keeping silent. Just don't expect your Senator to be able to take any particular action on this point.
  • Why not?  Separation of powers, is what it comes down to.  One branch of government can't dictate to another everything it can & can't do. One of the cornerstones of how our country works.

Many Cabinet Positions are President-Appointed, Senate-Approved

  • But there are many cabinet positions that do depend on Senate approval for confirmation.  Some of those positions include pretty much any office with the word "Secretary" at the start of it. There are scads of presidential appointed-senate approved positions. Here is a very incomplete list of some of them:
      • Secretary of Agriculture
      • Secretary of Commerce (vacant as of 2012)
      • Director of the Census Bureau
      • Under Secretary of Commerce for NOAA
      • Secretary of Defense
      • Secretary of Education
      • Secretary of Energy
      • Assistant Secretary for Environmental Management (vacant as of 2012) 
      • Chief Financial Officer for the Dept of Energy (vacant as of 2012)
      • Secretary of Health & Human Services
      • General Counsel to most governmental departments
      • etc.
The big-name cabinet positions
(Image from Poudre School District)

  • There are over 2,000 upper-level positions Cabinet departments and agencies in the federal government.  I'm not sure what percentage of those positions are ones that Trump is supposed to fill, whether or not the Senate approves them, but I would guess maybe 20%?
      • If you want to see a complete list of all US Government positions along with an indication of whether it's a presidential appointee or a senate-approved position and what the pay grade is, check out this ginormous list of positions, better-known as the Plum Book (last updated 2012).
  • For those positions that require Senate approval, the nominee first of all has to fill out 4 sets of rather exhaustive background paperwork, and one of those sets gets passed to the Senate.
  • The Senate parcels the nominations out to those committees that have jurisdiction over  the agency in question. For example, the nominee for Secretary of Education gets referred to the Senate Committee on Education.  That committee reviews the nomination and may or may not choose to hold hearings to discuss the nominee's qualifications or anything else about the potential appointment.
      • This process of reviewing the nominee by the relevant committee is a de facto way of ensuring that the nominee is qualified for the position for which they're being considered. There is no actual rule in place that says the nominee needs to have any experience whatsoever related to their position. But up to now, that's just what Presidents did. Until the forthcoming administration, Presidents typically nominated people who did have experience, because they didn't want to waste everyone's time by nominating someone who didn't know what the heck they were supposed to be in charge of.
      • Even if an unqualified nominee were proposed, the Senate committee could recommend that the nominee not be approved based on lack of qualification, but there is no agreed-upon standard of qualification. Some Senators might think that a person who was involved in supporting charter schools but had no involvement in public schools whatsoever is qualified to lead the US Department of Education, and there would be little hard & fast basis on which to object to this opinion.
  • If the nominee passes the approval of the committee, the nominee's appointment is put on the general Senate calendar, and the nominee is considered by the Senate in general at that time, and then voted on.
  • The record of the votes is of course duly recorded in the Congressional Record, and the President is also notified of the results of the votes.
  • It used to be that it took 60 yea votes for a nominee to be confirmed. But in 2013, the Democrats voted on and passed the "nuclear option" which changed the rules so that only a simple majority of the Senate was required to confirm a nomination.
      • Republicans warned Democrats when they were discussing this bill that they might not like it so much when they no longer had a majority in the Senate, but Democrats insisted on it, saying there was no other way to get around Republican obstructionism. Harry Reid, who proposed the bill, said he still stands by it and that the voting record will show which Senators support which candidates, however unfit they might be, and the voting public will hold them accountable for that. 
  • So if you really want to object to a particular cabinet appointment that requires Senate approval, methinks you'd better contact Republican Senators (scroll down), especially if you are a constituent of one of theirs.  Telling a Democratic Senator of your objections might be somewhat important, but you'd probably be preaching to the choir. 

This is what Federal Reserve Chair Janet Yellen's confirmation hearing looked like. 

It All Takes a Long Time

  • A wrinkle in all of this is bureaucracy. The business of filling appointed positions is tedious, protracted, inefficient, and it takes forever besides. (Yes, I'm being redundant. I'm demonstrating the facts with my language.)
  • The appointee process is such a problem, there is a project called the Political Appointee Project whose sole purpose is to review the system, track its inefficiencies, and try to recommend improvements. At least 6 independent research groups have conducted numerous studies of the process and issued reports and bulletins highlighting the problems and recommending ways to change and improve the system. Unfortunately, very few of their recommendations have been implemented.
  • One of those problems I've obliquely referred to earlier. When someone is nominated for a position, that person has to fill out 4 exhaustive questionnaires:
      • National security clearance questionnaire
      • Personal data statement to be used by the White House
      • Separate background questionnaire for the Senate's review 
  • It took an act of Congress -- literally -- to revise these forms so people didn't have to provide their name & address & birthdate etc. on each of the 4 forms, but that that information would be asked for only once and it could be shared among all the parties who need it. 
  • In addition to the 4 forms, each nominee is investigated by the FBI to determine if they have any skeletons in their closet.  Perhaps you have some potential lawsuit-worthy deeds in your background, or maybe you have an addiction, or maybe you have some blackmailable offense that somebody could use against you, or "Do you belong to a club that excludes women or minorities?" (Hmm)
  • If the FBI turns up something problematic that you should have indicated on your national security clearance questionnaire, you could be found guilty of committing a felony and fined up to $10,000, or sentenced to up to 5 years in prison, or both.
      • Has anyone asked Trump to complete the National security clearance questionnaire, especially with respect to his dealings with Russia?
  • With all these forms that have to be reviewed, and background checks conducted, with this department and that agency and that office needing to review and rubber-stamp all the materials, the process takes a really freakin' long time.
  • Because of this bureaucracy, according to findings by the Aspen Institute, on average in recent administrations, only about 1/3 of the most vital leadership roles in the government were filled within the first 100 days of a new administration (by May 1).
  • Even if a Departmental Director is installed relatively quickly, they can't do much without a senior staff, and many of those positions remain unfilled for a really long time after the start of a new administration. For example, of the 35 most important appointees responsible for national security there are on average only about 9 in office by May 1.

For example, nearly every office shown here in the Dept of Justice is a Presidential-Appoint, Senate-Approve position. But there are boatloads more that aren't shown here that also require Presidential appointment/Senate approval, including but not limited to the US Attorneys for each state, and many states have more than one. The US Atty for Northern Illinois, Obama's home region, is vacant as of 2012.
(Diagram from Wikipedia)

  • The Aspen Institute recommends that Presidential candidates begin preparing appointees well before the election, so that if they win, they have a team ready and installed as quickly as possible. Obama and McCain both started these preparations very early, while they were still candidates. As a result, "The Obama administration was able to nominate and have confirmed more appointees in the first 100 days than any other President in recent times."
  • Even so, several positions remain vacant, even as late as 2012. Even for the guy who is uber-prepared and efficient, understands how government works and tries to choose people who will get approved, it's still really difficult to fill all the necessary positions.
  • Trump, on the other hand, is woefully unprepared. It was news to him that he had to appoint people to work for him in the White House. Chris Christie was on the ball when he signed the memorandum of understanding that would allow the Obama administration to share sensitive information with the Trump transition team, but when Ivanka's husband sacked Christie because he prosecuted his father & put him in jail, that rendered the MOA obsolete, and it took a couple weeks before Pence signed a new form (see NYT).
  • So Trump is already behind schedule.  Which means even if he does get his major positions figured out somewhat soon, he will still need to get tons of people hired who will actually do the work for his Secretaries of Education and Defense and Commerce, etc.  
  • Which means it might take a while for more of the wheels to start falling off.  And maybe those of us who are not in favor of unqualified, racist, misogynist people being put in positions of power might be able to find local, small-government ways of keeping them from instituting policies that make American more mean than it has already become in such a short time. Here are some general and somewhat vague thoughts on local-government action.

So, even knowing more about how this whole process work, I don't have many specific recommendations for actions to take that can have real effects. I guess my general suggestion is, be vocal but also be local. Here are some resources:

Georgetown Law Library, Executive Nomination Process Guide
[The Plum Book, or] United States Government Policy and Supporting Positions, 12-1-2012 
The Washington Post, There are three [unwritten] rules of Cabinet appointments. Will Donald Trump break them? 11-25-2016
The Washington Post, President Trump’s Cabinet picks are likely to be easily confirmed. That’s because of Senate Democrats. 11-18-2016 
A Survivor's Guide to Presidential Nominees, 2013 edition
The Political Appointee Project
The Aspen Institute, The Federal Appointments Process: The Problem and Our Proposed Solutions
Quora, Which laws been enacted to prevent family members of a president from serving in his cabinet?
Huffington Report, No, Donald Trump Can’t Appoint His Kids To His Cabinet [actually, he can], 11-10-2016
Business Insider, Report: Trump was unfamiliar with the scope of the president's job when meeting Obama, 11-13-2016
The New York Times, Firings and Discord Put Trump Transition Team in a State of Disarray, 11-15-2016

Tuesday, August 23, 2016

Apple #735: Truck Weigh Stations

I have had a request!  Daily Apple reader Jamal and his friend Monique wanted to know how trucking weigh stations work. That seemed like a pretty simple question, but when I conversed some more with Jamal, it turned out that he and Monique were wondering, what is to prevent some truck from driving a ton of explosives into some city and blowing it up, as happened in Nice.  They were wondering if those truck weigh stations, by virtue of how they work, would catch something like that.

The second part of this question turned out to be really hard to figure out.

In pursuit of the answer, I have read a ton of truck-driving websites, training manuals, and chat rooms.  I've learned a fair bit about truck driving, a whole lot about truckers' antipathy for the police, the complicated and sometimes adversarial relationship they have with the companies for whom they drive, and I've read more than a few trucker tales (they weren't as good as I was hoping for, or I'd have shared some).  I'll try to distill what I've learned into some usable bites for you to nibble on.  Hopefully by the end of this, we'll have arrived at or close to the answer Jamal and Monique were seeking.

Trucks lining up to get weighed at a weigh station.
(Photo from The Lantech Blog)

What Weigh Stations Are For

I thought I knew how these things work, just from having seen them in action as I drove past.  I was wrong.

  • Originally the weigh stations were constructed to make sure that commercial trucks of 26,000 lbs & above were paying their required fuel taxes.  The weigh stations were built to weigh the trucks to make sure that people weren't trying to dodge those taxes even though their trucks might weight more than 26,000 lbs.
  • Now, fuel taxes are collected quarterly, so the primary purpose of the weigh stations is to make sure the trucks are not exceeding unsafe weight limits.
  • Each of the 3 axles of a commercial interstate truck has a weight limit, as does the total truck: 
    • Steer axle -- front tires on the truck -- < 12,000 lbs 
    • Drive axle -- back tires on the truck, beneath the front of the trailer -- < 34,000 lbs
    • Trailer axle -- tires beneath the back of the trailer -- < 34,000 lbs
    • Gross vehicle weight -- truck, trailer, all cargo -- < 80,000 lbs (sum of the 3 axles)
  • Some of those weights vary in different states, but those are generally correct for most states.  If your total weight exceeds 80,000 lbs, you need to get a special permit which costs money and which takes a lot of time, which can be expensive in its own way.
  • From what I've gathered, these weight limits are in place to protect the safety of other vehicles (more weight = more devastation in a crash) but mainly to keep the roads from getting driven deeper into the ground.
  • These rules about axle weight result in the drivers having to be obsessed not just about how much weight they're carrying, but about how it's distributed over the axles.  You can't just shove all 950 crates of potatoes in the truck and take off; you have to make sure it's distributed throughout the trailer so that none of the axles exceeds its weight limit -- and it also has to be secured so it won't slide around while you're driving. 

Weighing a Truck

  • If one of your axles comes in over weight, you might think that all you need to do is to re-balance the load, but you have to take into account the weight of the fuel, your weight personally when you're in the cab, the weight of the tires themselves, etc.  Sometimes the guy who loaded your crates of potatoes with the forklift has gone off to help someone else, so you've got to figure out a different solution.  
  • One trick is to use what's called the tandem sliders to change the position of the trailer axle (farthest-back tires) beneath the trailer.  Moving the trailer axle closer to the front means it takes weight off the drive axle and more weight onto itself.  Moving it farther back means more of the weight falls on the drive axle.
I need to move the [trailer tires] back – but just a little bit. It takes me a couple of tries, and I find that I’m stuck between two positions. On one, the drives are over, on the other it’s the trailer. Adam and I discuss options. We’re SO close. Maybe a DOT officer won’t care about 100 pounds. But maybe he will. That’s a violation and a fine. Both our record and our company’s record gets a ding for it. I don’t want to take the chance. We joke that Adam could lay across the dash when we go through weight stations. We figure we can leave our fuel below 3/4 of a tank to help.  
  • The fine for being over weight limits starts at $300 and goes up, plus you get a citation on your commercial driving record, which can make it more difficult to get a job with another company.  They're not sure they want to take the risk, so they decide to check their weights on certified scales, or CAT scales.  

Certified CAT scale, typically available at larger truck stops.  Costs $10 to weigh your truck. Drive up, park, go tell the scale operator your trailer number, then get your weight ticket.
(Photo from Somanymiles)

  • Most shippers have their own scales on site, but they're not certified to be accurate so they can be a little off.  If you want an official, totally reliable weight, you can drive your truck to a certified CAT scale.  If your truck comes in with a different weight at a weigh station and you get hit with a fine, CAT will pay the fine.
  • CAT scales are at larger truck stops, and you do have to drive your loaded truck to get to one, so you have to hope there's one close to where you are, and especially for there not to be a weigh station in between you and the CAT scale.
  • Our trucker Robin took her truck to the CAT scale, paid the $10 to use it, and the weights came in just under.
  • The time it took to shift the cargo, re-balance the axles, weigh, re-balance, weigh again etc. until getting to an acceptable weight: 8 hours.
  • The CAT scales give you an official ticket, showing the weight of the 3 axles and the gross weight.  You have to have this with you in your truck in case you get stopped, either by a DOT officer or by a state police officer or by local police.  More on this ticket in a bit.

Ticket from a CAT scale showing the 3 axle weights and gross truck weight.
(Photo from Somanymiles)

Types of Weigh Stations and What Happens There

  • You've seen weigh stations along the highways a million times.  There's an exit ramp with a weigh station sign that says open or closed.  When it's open, the trucks have to pull off the road onto the ramp, drive slowly in front of the little house-like thing that is the station, something mysterious happens, then they drive slowly away.  
  • Sometimes the stations get really backed up with waiting trucks, sometimes only a few are being weighed and other trucks are passing by, and sometimes the thing isn't even open.

Weigh station in use
(Photo from Weighing Review)

  • Different weigh stations work differently.  The old-school kind weigh one axle at a time.  These are time-consuming, since you have to drive one axle onto the scale, get that weighed, inch forward so the second axle is on the scale, get that weighed, then pull farther forward to get the final axle weighed, and then all 3 are added together.
  • Other weigh stations are "one-stop" scales, meaning you pull your entire truck onto the scale and it takes all the weights at once. You do still have to come to a complete stop, though.
  • A newer method which is becoming more common is the "weigh-in-motion" scale or WIM.  With these, you drive slowly over the scale but you don't have to stop.  Some stations don't even require the trucks to pull off the road; the scales are installed beneath the highway so the trucks can drive over them at speed, and the scales record the weight.
  • Another new technology allows trucks to bypass the weigh stations.  They work like the E-Z Pass that you buy to let you go through toll stations because you've already paid ahead of time.
  • First there's a thing with sensors in it that hangs out over the road and scans the vehicles going under it. 

EZ-Pass system used to tell truckers whether or not to pull over & get weighed.
(Photos from Baby & Honey Bear

  • Then there's the part in the vehicle, in this case, a transponder.  If you've got a transponder in your truck, the sensor arm thing will communicate to the transponder.  If it flashes green, you don't have to stop.  If it flashes red, you do.  If you blow past the weigh station even though your thing flashed green, the DOT cruiser will come after you and pull you over and the officer will not be happy.
  • If you do have to stop to get your truck weighed, yours can be one of the lucky trucks that is randomly or not-so-randomly told to pull over for an inspection.  If this happens, you will let loose a stream of curse words, and then try to put on as polite a face as possible when the officer begins speaking to you.
  • The list of things for which your truck may be in violation is very long.  I'm sure I haven't  uncovered even half the things that could get you flagged for an inspection.  But here are some of them:
    • Improper placarding of cargo -- if you've got hazardous stuff on board, you have to have a placard displaying such
    • Equipment is in disrepair -- could be anything from a bad ball bearing to missing reflective tape to rust or chipped paint. This could be your company's fault, as they may not keep up with maintenance as they should and they require you to drive a truck in bad shape. Too bad for you; you'll be on the hook for the fine.
    • Not having a spare tire in the rack beneath the trailer 
    • Unsecured tandem sliders -- this is legitimately dangerous
    • Evidence of erratic or improper driving -- pretty much the same sorts of things that get cars pulled over: seat belt not on, speeding, improper lane changes, failure to signal, etc.
    • Signs of possible impairment due to drugs or alcohol
    • Something about you looks funny
    • You're hauling something the officer wants -- one officer told a guy that, the next time he came through the weigh station, have one of those honey-baked hams he was hauling on the front seat.  He did, the officer took the ham, and the trucker didn't get a fine.
  • Once you've been told you're getting inspected, the officer will ask you for all sorts of documentation that you'd better have handy.  Most truckers have a binder that contains all the official documents they need. Those documents may include
    • Commercial driver's license
    • Cab card -- you are licensed to drive this particular cab
    • Proof of insurance
    • International Fuel Tax Association license (IFTA) -- proof that your company is paying those fuel taxes
    • Scale ticket -- remember the ticket you got from the CAT scales? That thing.
    • Bill of lading -- record describing the cargo the truck is hauling, where it was loaded, and its final destination
    • Medical certification -- this is for truckers hauling greater weights or hazardous cargo; proves that you don't have seizures or aren't going to have a heart attack any moment, that sort of thing
    • Log book -- where you record who the shipper is, what time you left, if you stopped, where & when, etc.  All your movements.  You can't have driven for more than 11 hours at a time; you are required to stop and rest so you don't get fatigued and increase your risk of accidents.  If your company has an electronic log, they recommend you keep a duplicate paper log too.

Sample IFTA license, showing where you're allowed to drive your truck because your company has paid fuel taxes in those locations.
(Image from Iowa DOT

Sample log record showing what the truck driver did when while hauling this load.  You're not allowed to exceed 11 hours' driving time so you don't wind up too tired to drive safely.
(Image from Wikipedia)

  • If anything about any of these documents looks funny, you could get a fine.  If the weights come in too high, you could get a fine.  If the truck has a rust spot and the officer picks at it and finds there's a greater problem going on, you could get a fine.  If you look cross-eyed at the officer, you could get a fine. 
  • The fines are not small.  They can be $2,000 or more.  
  • From what I've gathered, it's usually the driver who has to pay these fines, not the company they drive for.  Plus, you get a citation on your CDL record.  Too many of those -- and it sounds like it doesn't take many before it's too many -- and your company could decide you're too much of a risk and give you the boot.  Not only does that put you out of a job, but you might also have a hard time finding somebody else willing to take you on.
  • There's also the time issue.  The time you're stopped at a weigh station, waiting to get weighed, getting weighed, being pulled over and getting inspected -- all that is lost travel time.  It means your cargo might arrive late at its destination if you don't find some way to make up for it.  Some janky entitled Target customer like me is going to be ticked off that her vacuum cleaner didn't arrive exactly on time because you got pulled over and inspected for having rust on your back bumper.  Janky customer yells at Target, Target yells at the trucking company, trucking company yells at you, and you get fired.
  • To hear truckers tell it, the chance of getting inspected is a total crapshoot, but if it happens, chances are that it won't be good.  Truck drivers hate being inspected, hate being told essentially that they're doing their job wrong, hate the time it takes, hate even risking getting inspected.  So a lot of truckers will do what they can to avoid weigh stations.

Avoiding Weigh Stations

  • Truckers call weigh stations "coops" because they look about as small and not-sturdy as chicken coops.  There's a site called coopsareopen.com that tells you all sorts of stuff about the weigh stations in each state -- where they're located, how much the toll roads charge, where the cops lie in wait to look for speeders, etc.  If you pay to join, you can find out which weigh stations are open and which aren't, and what route to take if you want to dodge the weigh station entirely.

Typical Coopsareopen map, showing the major highways in each state -- this happens to be Illinois -- with red dots indicating the presence of weigh stations.  You have to pay extra to find out if they're open or not. 
(Map from Coopsareopen)

  • This is very valuable information because not having to stop or even slow down to get weighed saves you time. Avoiding open weigh stations also dramatically reduces the chances you could get flagged for an inspection.
  • Some truckers who know they're over weight but can't fix that problem will take another route to avoid weigh stations.  If they know their company's equipment is shoddy and won't get it fixed, they'll avoid the weigh stations.  A few of them do it just because they hate cops (and yes, some truckers still call the cops "smokey" or "the bear"). 
  • Avoiding weigh stations is so common in some parts of the country -- there are certain highways in Texas where it's really easy to avoid highway weigh stations by driving on surface bypass roads -- that those communities are trying to figure out how to pass legislation to keep truckers from doing this.

From the Officer's Point of View

  • All this is from the trucker's point of view.  They're the ones talking online the most about weigh stations and how they work and what to do while you're going through them, etc.  The police don't say very much, publicly, about that sort of thing.  So there's some guesswork about what they're thinking.
  • But I did find one page that's written from a police officer's point of view.  It tells local police officers not to be intimidated by the "big rigs."  It says they can't afford to be afraid to pull over the commercial trucks when necessary because they may be hauling illegal drugs, or smuggling some contraband, or involved in human trafficking.
  • It's also happened that trucks that have stopped at rest stops near the border crossing will have smugglers stash narcotics or other illegal stuff on the truck without the drivers' knowledge.  Occasionally, smugglers will force drivers to carry stuff for them, on threat of violence.
  • So, this police site tells officers, when you stop a big rig to inspect it, you may possibly be preventing two crimes, one intentional and one not.

State police cruiser having stopped a semi-truck on the highway.
(Photo from Police Mag

  • The site gets into detail about things to look for, and it lists a pretty wide range of stuff.  But ultimately it comes down to one thing: does anything look suspicious?  Are there cross-outs on the bill of lading, or hand-written notes on it?  Do any of the documents look less than official?  Are there any unauthorized passengers?  Does anything about the truck itself look less than official?
  • This goal of possibly uncovering truly illegal activity might be the real reason why they're so anal & picky about the placards on the side of the truck, or rust on the bumper, or whatever.  They might be thinking, hey, this could be a sign that this trucker's not legit, or the stuff he's hauling is illegal.
  • The big tip-off, they say, is how the trucker looks and is acting.  Here are some tips they describe:
Is the driver nervous? Is he sweating? Is he rubbing the back of his neck? Did he just urinate on himself when asked what his shipment was? (It happens.)  Several years ago a large cash seizure was made from a tractor-trailer on Thanksgiving Day. The big rig was being operated by someone who didn't have a commercial driver license (CDL), and was wearing Bermuda shorts, a Hawaiian shirt, flip flops, and multiple gold chains. Other than the big indicator of not having a CDL, the huge indicator was the fact that the driver did not look, dress, or act like a trucker. Just as you do when you're out stopping cars for drug interdiction, ask yourself, does the story match the person?

Understand that most truckers are hardworking souls just trying to make a living, but they do commit traffic infractions, and some are involved in criminal activity. (from Police Mag)
  • This is fairly typical probable cause-type stuff, with exhortations to be on the lookout for any indicators that all is not as it should be.


But Does It Work?

  • So there's no concerted, let's-sweep-all-semis-from-here-to-Chicago-for weapons, but that might violate a constitutional amendment or two, and various other laws about search & seizure.  What the police can do is pull over or ask to inspect a truck that has apparently violated some rule or other.
  • This doesn't seem like a very reliable way of catching seriously bad stuff.  The potential for someone to sneak by without being caught seems pretty great.
  • On the other hand, the police have caught criminals on their way to doing some pretty nefarious things, and the criminals did give themselves away.  Here are a few examples:
Oct 11, 2015, El Reno, OK -- An Arizona truck driver was pulled over for swerving and weaving while driving. He said he was exhausted from driving all the way to Georgia to help his girlfriend move. So the police suggested he pull over to take a nap.
"Then, out of nowhere, Vasconcelos told authorities he wasn't a criminal and they could check his truck if they wanted to."
Deputies figured they'd better take him up on that, so they searched his truck. They found a loaded pistol on the front seat, and a large metal box forced into the mechanism of the engine which contained $3 million worth of heroin. (KFOR News channel 4)
  • Here's another example:
June 21, 2016,  New York City -- Police pulled over this vehicle as it was about to enter the Holland tunnel because it had a cracked windshield.

(NY Post

Once pulled over, the officer noticed a pistol on the front seat and asked the driver to exit the vehicle. He discovered that, in addition to the pistol in plain view, the driver had been literally sitting on a loaded .45. Further searching found a cache of weapons including an AR-15 assault rifle, a 12-gauge shotgun, 4 semiautomatic handguns, multiple ammunition clips totaling 2,000 rounds, including one labeled "Merica."
The driver and his friend traveling with him said they were on their way to a heroin hotel in NYC to rescue his daughter who was hooked on heroin, and any other addict who wanted to be rescued. (NY Post)
  • So, no terrorism connections here, but a pretty obvious indicator that something less than legal might be about to happen.

The Upshot

  • So there's nothing about the weigh stations that is specifically scanning the cargo of a locked truck to see if it's carrying weapons or explosives or anything like that.
  • But what does seem to be going on is the DOT officers who operate the stations and the state and local police who patrol the highways are keeping their eyes open for any indicators that there might be something shady in the back of that truck -- and that could be anything from weapons to drugs to people, and in one case, rotten food.  Most often, if there's something illegal in the truck, it's drugs.
  • So the truckers might absolutely hate and despise weigh stations for the way they can wreck their run and possibly their jobs.  But it seems we do need somebody keeping an eye on things, for that rare exception when somebody really is doing something terrible and should be stopped.

Bonus material: Here's a trucker story posted on Reddit:

My Dad is a truck driver and he likes to tell a story about a Keebler cookie driver who was getting teased on the CB once: he said that the other drivers kept asking him questions, like "Do elves really make the cookies?" And "Are you an elf?" And "How tall are you, anyway?" Dad says this truck driver let the good natured ribbing go on for a while, and then he said, in a deep voice, "Listen, I only drive this truck for the paycheck. I don't ask any questions. I just back the truck up to the tree, and they fill it."

(Photo posted at Whiting Door)

Howstuffworks: Weigh Stations
What Are Truck Weigh Stations For?
How Do You Go Through a Weigh Station?
So Many Miles: Scales and Weigh Stations
Truckers Avoid Weigh Statsion by Dodging the Scales
Coops Are Open
Trucking Industry Forum: Dodging Scales
OTR Pro Trucker: Trucks and Drug Smuggling, a Dangerous Combination
Cleveland Plain Dealer: State Troopers Pull Over Truckloads of Rotten Food
NY Post: 3 arrested with loaded guns, body armor at holland tunnel
Florida Highway Patrol: 2013 Trucking Manual
Washington State Dept of Licensing: Commercial Driver Guide
Illinois Standard for Overweight Trucks
KFOR: Man Tells Police to Search His Truck, More than $3 Million Woth of Drugs Recovered
Police Mag: Stopping Big Rigs
Land Line: "You Don't Mind if I Look Inside Your Truck, Do You?"
Trucking Truth: Staying Alert and Fit to Drive
San Diego Tribune Forum: $3.59 Million to Haul Cargo of Illegal Immigrants
Life as a Trucker: Operating Illegally upon Owner's Request
Life as a Trucker: Crazy Trucker Stories
FBI Archives: Inside Cargo Theft
WBUR Here & Now: Trucking Companies Try to Prevent Contraband Cargo
Trucking Truth: Should Drivers be Blamed if Criminals of Shippers Put Illegal Cargo in Their Trailers?