The Surprising Story behind “October Surprise”

In his new book October Surprise, journalist Devlin Barrett recounts some sage advice he’d been given by Sandy Johnson, the longtime Washington bureau chief of the Associate Press and later president of the National Press Foundation:

October is dangerous territory in election years, because the stakes are so high, the political strategists are so ruthless, and journalists are so tired. In this heightened atmosphere at the end of an election, the consultants dig out the meanest, ugliest oppo research and peddle it to sway an election. The worst danger is in those final weeks, because a false narrative or outright lie is hard to disprove or counter.

The book focuses on the two big FBI investigations at the end of the 2016 election, one concerning Hillary Clinton’s emails from her time as Secretary of State (“Midyear”), the other focused on the Trump campaign’s ties to Russia (“Crossfire Hurricane”).  As a Wall Street Journal reporter at the time, Barrett (now at the Washington Post) played a tangential, but not insubstantial role in covering the investigations and in at least one very significant way, influencing them.

Barrett’s quotation of Johnson’s warning comes in the context of describing attempts by the FBI to discover if the Trump Campaign was planning an “October Surprise” in 2016.  The month of October 2016 was full of them, and how they each came about is still largely unknown.  For example, in the afternoon of Friday, October 7, 2016 three consecutive bombshells dropped.  First, at 3:30pm the Obama administration issued a press release accusing the Russian government of hacking the emails of the Democratic National Committee.  Just thirty minutes later, the Washington Post published a 2005 video from an “Access Hollywood” interview where Donald Trump bragged about his ability to accost women (“It’s like a magnet. Just kiss. I don’t even wait. And when you’re a star, they let you do it. You can do anything. Grab them by the pussy.”). About 4:30 pm, WikiLeaks began releasing e-mails stolen from Clinton campaign chairman John Podesta, providing almost endless opportunities for false or misleading stories about Clinton and her campaign in the final weeks before the election.

These stories provided an array of  “narratives” for the final weeks of the election, but were largely displaced at the end of the month by what turned out to be the largest surprise of them all, the FBI’s decision to reopen the previously closed Clinton email investigation and seek a search warrant to review emails held on the laptop of disgraced former Congressman Anthony Weiner, the husband of Clinton’s longtime aide Huma Abedin.  That story dominated the final ten days before the election, almost certainly providing Donald Trump with enough of a swing in his direction to account for his very slim margin of victory in four key states.

While the source of the Access Hollywood tape remains an unsolved mystery, much has been written about the Russian government hacking of the DNC emails and the subsequent release by WikiLeaks, as well as the decision by James Comey to reopen the Clinton email investigation.  Still, some further mysteries remain, and Devlin Barrett’s role is one of them, notwithstanding his new book.

An October 12, 2019 New York Times story on James Comey revealed that the former FBI director is a fan of Hanlon’s razor, the maxim “never attribute to malice that which is adequately explained by stupidity.”  It’s a great rule of thumb that helps you avoid speculation about people’s motives.  And I believe it explains most of what happened with the re-opening of the Clinton e-mail investigation, which was just one mistake after another.  The surprising thing to me is that no one seems to have noticed the errors, not least of all the participants who played a key role, including both Comey and Barrett.

A quote-of-the-day calendar page on Mr. Comey’s desk.

The re-opening of the Clinton e-mail investigation at the end of October 2016 was the result of two independent complaints from within the FBI that managed, by coincidence to create a maelstrom.  The first of these complaints has already been well-documented, but Barrett provides even more details.  On September 27, John Robertson the FBI special agent in New York who was tasked with searching the laptop of Anthony Weiner for evidence of his sexting an underage girl discovered that the laptop also contained a large cache of emails (over 340,000) from Huma Abedin’s account, including many from the time when she was working as Secretary Clinton’s assistant at the State Department.  The agent dutifully notified his superiors and the information was passed on to Washington the very next day.  Pretty much everyone on the Midyear leadership team was informed (although Comey later said he did not remember hearing about it).  The team was led by Deputy Director Andrew McCabe and included Executive Assistant Director Michael Steinbach, Associate Director Bill Priestap, Agent Lead Peter Strzok and a Supervisory Special Agent (“SSA”) (whose name has never been disclosed).  The SSA was given the task of investigating further.  A warrant would be needed if anyone wanted to review the emails.

And then nothing happened.  The Inspector General Michael Horowitz in his June 2018 report found four explanations for this inaction: (1) the FBI was waiting for additional information, (2) the FBI needed a search warrant, (3) the FBI did not believe that the information was likely to be significant, and (4) members of the team were reassigned to the investigation of Russian interference into the election.  Horowitz took the FBI to task for not following up quickly, finding the various explanations “unpersuasive justifications for not acting sooner.”  But Horowitz was clearly wrong.  The two middle explanations — the FBI needed a search warrant and no one thought the information would be significant — were not only absolutely true and correct, but also dispositive.  You cannot get a search warrant without probable cause, and if there was absolutely no indication that the emails would constitute evidence of a crime, there was no probable cause.  Without probable cause, no further investigative steps were possible.

But of course the agent in New York who discovered the emails didn’t know that.  He waited impatiently for someone to call him and became increasingly worried that no one was following up.  Barrett does an excellent job in his book of recounting Robertson’s increasing anxiety as the weeks went by.  According to Barrett’s account, Robertson worried that “someday angry members of Congress would come after him.”  He told his supervisors at the SDNY U.S. Attorney’s Office that he feared that “this is going to make us look really, really horrible.”  Concerned that Robertson would do something rash, on October 20 the two supervisors went up the chain of command in the US Attorney’s Office, while Robertson wrote himself an anguished “memo to self.”

On Friday, October 21, SDNY U.S. Attorney Preet Bharara tasked Joon Kim, the deputy US attorney in New York, to  call Sally Yates, the Deputy Attorney General, and let her know about their agent’s concern that no one was following up on the Clinton e-mails.  Yates referred Kim to George Toscas, the senior National Security Division Lawyer in the Attorney General’s office,  who then contacted Peter Sztrok and Justice Department lawyer David Laufman to inquire about the matter.

By coincidence that same week, Barrett was working on a story about Andrew McCabe and had started asking questions concerning $675,288 in donations by The Virginia Democratic Party and Common Good CA, a political action committee run by Virginia Governor Terry McCauliffe, to McCabe’s wife Dr. Jill McCabe’s unsuccessful 2015 campaign for Virginia state senate.  The genesis of this news story is something that Barrett does not reveal in his book, but it is actually more significant than the story itself.  Apparently Barrett had heard from “a number of people inside the FBI” who were concerned that the donations to McCabe’s wife’s campaign created a conflict of interest for McCabe, even though the FBI’s top ethics official, Patrick Kelley, had determined that there was no problem since McCabe’s wife’s campaign had ended before McCabe was assigned responsibility for the Clinton e-mail case, and the connection to Clinton, via McCauliffe, the former chair of Clinton’s unsuccessful 2008 presidential campaign was attenuated, at best.  That there might be a few disgruntled FBI personnel eager to take digs at McCabe, an ambitious, rising star in the office, is hardly news.  Most journalists would have dismissed the story as typical inter-office back-biting.

But not Barrett.  The matter “didn’t sit well” with him.  By complete coincidence, this minor, gossipy snipe against McCabe set Barrett off on a Proustian reverie that would have enormous consequences.  When Barrett was young, he tells us, his mother also ran unsuccessfully for the state legislature in New York.  As he was only nine years old, he said he had paid little attention at the time.

But I also remembered, years later when I was in high school, riding in her rusty Subaru sedan one day, she noticed a local businessman strolling down the sidewalk of out hometown. My mother sighed and reminisced about how the businessman had donated to her long-ago campaign. She not only remembered the donation, which was for no more than a few hundred dollars, but she still felt somewhat guilty about it, like she’d let him down.

Leaving aside the very remote likelihood that any person would actually have this sort of memory, the obvious differences between Barrett’s story and the McCabe situation seem not to have been noticed by the journalist.   Yes, Barrett’s mother might have expressed pangs of regret upon the sight of a former donor.  But would Barrett’s father have expressed similar feelings, not towards the donor himself, but towards a former boss of the donor to his wife’s campaign?  That is the McCabe situation.  If that type of attenuated Six-Degrees-of-Kevin-Bacon guilt by association is evidence of a disqualifying conflict of interest for a Deputy FBI Director, then good luck finding anyone in Washington to supervise an investigation of anyone else.  (By way of comparison, try finding any sort of  discussion about the obvious conflict of interest when a three-judge panel of the D.C. Circuit Court of Appeals appointed Kenneth Starr in 1994 to investigate the suicide death of Deputy White House Counsel Vincent Foster and the Whitewater real estate investments of Bill Clinton.  Starr had lost his job as Solicitor General, and a likely Supreme Court appointment, when Bill Clinton defeated his boss George H.W. Bush in 1992.)  No, the real story was not the story about McCabe and any conflict of interest, it was that anyone would take seriously this type of phony allegation against McCabe.  It was the very type of story that Barrett’s mentor Sandy Johnson had warned him about, a “false narrative” that was “hard to disprove or counter.”

The Wall Street Journal posted Barrett’s hatchet piece on McCabe on Sunday night, August 23, and it appeared in the print edition the next day above the fold.  That same morning, McCabe attended a regularly scheduled 9:00 a.m. briefing for Attorney General Loretta Lynch, after which George Toscas asked McCabe about the Weiner laptop.  Meanwhile, Barrett started asking the FBI questions about his next story, based on allegations that McCabe had told FBI agents not to pursue an investigation of the Clinton Foundation (a separate matter based on Republican fantasies of a pay-to-play scheme involving donations by foreign governments to the Clinton charity).  In fact, the Justice Department had given instructions to the FBI in February not to pursue any further action without any incriminating evidence because of the upcoming election.  Some agents in Brooklyn had tried to do an end-run and revive the case, and in August 2016 Principal Associate Attorney General Matthew Axelrod had instructed McCabe to tell the agents to stand down, which, after voicing some objections, McCabe had done.  But to Barrett the story was a perfect fit for the “false narrative” he and his unnamed sources were bent on spinning about McCabe.

With a growing cascade of unwarranted insinuations against his ethics, McCabe also had to deal with the Weiner laptop.  On Wednesday, October 26 the agents in Washington and New York had discussed the matter and reviewed the facts, which were nothing more than that as many as 675,000 emails from Abedin’s account were on the laptop.  All agreed that a warrant was required to review them.  That evening McCabe decided that they needed to re-open the case, no doubt to avoid yet another story by Barrett.  No one believed that searching the emails would result in any evidence of a crime.

Early the next morning, on October 27, McCabe and Lisa Page, the FBI attorney assigned to assist him, sent out emails calling a 10:00 am meeting of the Midyear Team with Director Comey.  McCabe was not in the office and had to call in to the meeting.  Before anything of substance could be discussed, however, FBI General Counsel Jim Baker stopped the meeting to ask whether McCabe should be recused and removed from the call “out of an abundance of caution” because of the very public allegations being leveled in Barrett’s articles.  Both McCabe and Page were then kicked out of the meeting that they had convened!

This was a fateful decision.  As anyone who has worked on a team knows, when a few key players get sidelined, the team can become unbalanced.  That is precisely what happened to the Midyear team without McCabe and Page.  After Comey was briefed on the Weiner laptop, he quickly gave the go-ahead to seek a search warrant, and immediately turned to what was for him the more pressing issue, what to tell Congress.  We’ve all heard Comey relay his explanation for that further step, but hardly a word has been said about the initial decision to seek a search warrant, which was the decision setting the ball in motion.

That Lisa Page wanted to be in the meeting and to discuss whether or not they should seek a search warrant is clear from the text messages she sent to Peter Strzok later that day: “I obviously don’t have to tell you how completely INFURIATED I am with Jim [Baker] right now. . .  Please, let’s figure out what it is we HAVE first. What if we can’t make out PC [probable cause]? Then we have no further investigate step.”

When asked afterwards why he authorized the re-opening of the Clinton e-mail case, Comey testified that it was because he thought they might find what he referred to as the missing “golden emails”

Comey told us that the potentially great evidentiary significance of the newly discovered emails would have made it particularly misleading to stay silent. But we found that the FBI’s basis for believing, as of October 28, that the contents of the Weiner laptop would be significant to the Clinton email investigation was overestimated. Comey and others stated that they believed the Weiner laptop might contain the ‘missing three months’ of Clinton’s e-mails from the beginning of her tenure when she used a BlackBerry domain, and that these ‘golden emails’ would be particularly probative of intent, because they were close in time to when she set up her server. However, at the time of the October 28 letter, the FBI had limited information about the Blackberry data that was on the laptop. The case agent assigned to the Weiner investigation stated only that he saw at least one BlackBerry PIN message between Clinton and Abedin. As of October 28, no one with any knowledge of the Midyear investigation had viewed a single email message, and the Midyear team was uncertain they would even be able to establish sufficient probable cause to obtain a search warrant. [IG Report, p. 373.]

To understand how insane this is, we really need to back up a bit, to July 5, 2016 when Comey announced that the investigation had come up with no basis for prosecuting Clinton.  At that point, the FBI had reviewed all of the work-related emails voluntarily turned over by Clinton, Abedin and numerous others, over 30,000 of them.  From that group “110 emails in 52 email chains have been determined . . . to contain classified information at the time they were sent or received,” Comey had announced, yet none of the emails had been marked classified at the time they were received.  After all of the hoopla over Clinton’s emails, you might be forgiven if you believed, like Barrett apparently still does, that “[i]t was against the law to put classified information in a low-side [i.e. unclassified] government email, so in criminal terms it didn’t matter very much whether such classified information was in an unclassified government email or a personal email.” What Barrett should have said is that it is against State Department rules and regulations to put classified information in an unclassified email.  See, e.g. Foreign Affairs Manual, 5 FAM 750 Electronic Mail (Email) Policy.  You can be fired for violating those rules.  But that is not the same as saying it is against the law.

For the actual criminal law on handling classified materials, we need to look at the Espionage Act of 1917, 18 U.S.C. § 793.  The two provisions of that law that were at issue in the Clinton email investigation — the only ones identified in the search warrant affidavit for the Weiner laptop — were § 793(e) and (f).  The provisions authorize a sentence of up to ten years for anyone who has unauthorized possession of information related to the national defense that the possessor has reason to believe could be used to the injury of the United States, if the person willfully transmits the information to an unauthorized person, or through gross negligence permits the information to be removed from its proper place of custody or delivered to anyone in violation of his trust.  Trying to fit the facts of Hillary Clinton’s use of a private email server into this criminal statute is like trying to fit a round peg into a square hole.  It just can’t be done.  The law is aimed at real espionage, not using a private server to send and received emails between authorized recipients.

Comey had gone off the reservation in his July 5 press conference to suggest that Clinton was “extremely careless” in the handling of very sensitive, highly classified information.  There was also no evidence of that.  In reality, Clinton had received emails that were not marked as classified from other State Department officials and presumably had merely replied to them or forwarded them to others.  It is hard to see how that could ever be characterized as careless, let alone extremely careless.  But regardless, it was never criminal.  Indeed, in the entire 99-year history of the statute, the Justice Department had never charged anyone for violating the “gross negligence” section of the statute, which also requires that the materials be actually delivered to or removed by an unauthorized person to the detriment of national security.   Very simply, what Clinton had done in using a private server for emails was not a crime.  It wasn’t espionage, or anything even close to espionage.

Perhaps Comey’s “golden emails” explanation was so bewildering that no one ever bothered to ask him what exactly he meant.  Seriously, what could he have thought he was going to find that would result in a criminal prosecution?  He has never explained that and it is hard to imagine what he could have been thinking, and how that would fit into the requirements of the criminal statute.  Did anyone really think that they might find an email from Hillary Clinton directing the setup of a private email server so that she could illegally transmit classified information to harm our national security?  Is that what they thought they would find?  It seems insane, and yet that apparent fantasy seems to be the sole justification Comey and the FBI have provided for re-opening the investigation.

There was an additional problem, however.  If the FBI wanted to find those three months of missing emails with evidence of some sort of criminal intent, what probable cause did they have to believe that they would be on the Weiner laptop?  The answer is that they had none.  And so the search warrant application that was presented to a magistrate judge in New York on Sunday October 30 contained no reference whatsoever to the three months of missing emails that Comey and others said they wanted to find.  IG Report p. 325 n. 178.  Instead, to obtain the warrant, the Supervisory Special Agent merely suggested that the laptop might have classified emails that the FBI wanted to clean up.  That was super dishonest, because we know that the FBI wasn’t at all interested in finding more copies of  classified emails.  Comey and Strzok were emphatic that this was not a spill clean-up and that classified emails alone were not enough to support a prosecution.  Comey stated in his book Higher Loyalty “[n]o fair-minded person with any experience in the counterespionage world (where ‘spills’ of classified information are investigated and prosecuted) could think this was a case the career prosecutors at the Department of Justice might pursue. There was literally zero chance of that.” IG Report 374.  Strzok said there was “there was no evidence of intent and it’s looking, despite the prominence of it, like an unusual, but in a way fairly typical spill and there was no fricking way the Department of Justice in a million years was going to prosecute that.” IG Report 167.

Of course, the laptop didn’t contain anything new and significant, mainly just copies of the same classified emails the FBI had already reviewed.  But it is important to remember that there was never any basis to believe that the FBI would find anything new.  Everyone admitted that they didn’t expect there to be anything significant on the laptop.  The sole justification was the hope they might find emails from an earlier time period, before the server was set up.  So, having no reason to review for more classified emails, and no probable cause to believe they’d find anything else, the FBI presented an intentionally misleading pretextual warrant application to the magistrate judge.  Of course, by the time the judge reviewed the application, Comey’s letter announcing the new investigation was all over the news, and there was no chance that the judge would stick his neck out and hold up review of the laptop.

By now probably everyone has heard the story that the FBI worked tirelessly over the next week to carefully review the hundreds of thousands of emails on the laptop, before finally concluding on Sunday, November 6 that there was nothing significant so that the FBI could announce the re-closure of the investigation.  Barrett also recounts that narrative, but it is likely false.  The truth is that there were no emails at all on the laptop from the three-month period that Comey and the others thought might be significant.  Surely that fact was discovered by the agents almost immediately.  But who wants to tell the boss?  How would that look?  So the agents decided to search the rest of the emails to see if they could find something to justify what they had just done.  After a week of searching through them, they could safely say that nothing was there, which is what everyone had believed all along.

In the end, the story of this cascade of errors is a sad one.  Comey’s maneuver did not manage to preserve the reputation of the FBI, nor his own.  When recounting what happened, to this day he still maintains his decision was the correct one.  The other path, he claims, would have been “catastrophic.”  Really?  How so?  No one ever bothers to ask him to do the mental exercise and explain just what he means.  How exactly could the decision not to search for non-existent evidence of a crime that never happened, which no one even thought was there, have ever led to a catastrophe?  Sure, if the news had gotten out that Weiner’s laptop was found with Abedin’s emails and the FBI had decided not to search it, it would have led to the normal wild speculation of the right-wing fever swamp, but a catastrophe?  Surely, the FBI could have explained that there was no probable cause to conduct a further search.

There is a maxim in the law that one should avoid the appearance of impropriety, but Comey sort of mangled it.  Avoiding the appearance of impropriety cannot justify doing something that is actually improper.  In other words, you cannot do the wrong thing just because it will make you look like you are doing the right thing.  For whatever reason, Comey never understood that.  And as a result, we all are suffering.

Who is Wolf Slawes? Correcting a very old mistake concerning the family of Rabbi YomTov Lipman Heller

Rabbi Gershon Shaul “YomTov” Lipman Heller (1579-1654) is justly famous for both his rabbinic writings and his life story.  An intrigue against him while serving as Chief Rabbi of Prague in 1629 led to his imprisonment in Vienna and a death sentence that was commuted by the Emperor Ferdinand II, resulting in a heavy fine.  In his autobiography, Megillat Ebah, Heller thanked Heni [Enoch Weiseles] and Wolf Slawes for helping to pay the fine and secure his release from prison.  This article attempts to correct 320 years of confusion about the identity of Wolf Slawes.

Although I was not brought up with knowledge of the great talmudic rabbis, I discovered Heller, who is known by the title of his most famous three-volume commentary on the Mishnah (“Tosafot Yom Tov”), many years ago while searching for the unusual hyphenated surname of my gg-grandmother Karoline Jontof-Hutter from Prague.  The first reference I found was from Karl Marx‘s Das Kapital, where he quotes without attribution the words of his cousin, the poet Heinrich Heine, in Disputation, the last poem from Heine’s Romanzero: “If Tosafot Yom Tov is no longer valid, what else can be valid, brawl, brawl!” (“Gilt nicht mehr des Tausves Jontof, was soll gelten, Zeter, Zeter!“).  Clearly, in religious circles and even beyond, the word of Rabbi Heller was law.

In Megillat Ebah, Heller commanded his descendants to recall his ordeals, and so his manuscript was copied and passed down in various forms (some Hebrew, some in Judeo-deutsch or Yiddish) through the generations.  Joseph Davis’ biography Yom-Tov Lipmann Heller: Portrait of a Seventeenth-Century Rabbi (2005) identified nine different manuscript versions of Heller’s autobiography in libraries around the world.  Davis, p. 228, n. 31. The 19th Century saw the publication of several versions of the autobiography.  The first publication in Breslau in 1836-37 included a translation into German by Josua Höschel Miro.  An 1880 publication in Vilna, under the name of Heller’s son Samuel, containing additional details not found in other versions, was considered by contemporaries to be an embellished forgery. See David Kaufmann, Die Letzte Vertreibung der Juden aus Wien und Niederösterreich, p. 20 n. 2 (1889).  Of course, that didn’t stop people from relying on it.  In 1929, Guido Kisch published an 80-year-old German translation by his cousin Seligmann Kisch, along with a description of the eight previous publications from 1836 to 1897.  Guido Kisch, “Die Megillat Eba in Seligmann Kischs Übersetzung,” Jahrbuch der Gesellschaft für Geschichte der Juden in der Cechoslovakischen Republik, I. Jahrgang, p. 421 (1929).  There is apparently a debate among the scholars as to whether the original version by Rabbi Heller was in Hebrew or Judeo-deutsch/Yiddish, but what is certain is that the original has not survived.  See Rachel Greenblatt, To Tell Their Children: Jewish Communal Memory in Early Modern Prague, p. 230 n. 27 (2014).

So what do all of these versions of Heller’s autobiography say about Wolf Slawes?  The first mention of Wolf Slawes in the autobiography says approximately this: “The Prague councilman R. Heni, who came with me from Prague to Vienna, and [my relative] Wolf Slawes guaranteed the remaining 6,076 florins.”  In some versions, Wolf Slawes is referred to later as Heller’s son-in-law, the husband of Heller’s daughter Nissel.  In others, Wolf is a machaten, a unique Hebrew term used for an in-law, including the parents of your son-in-law.  In the early German translations, Wolf Slawes is referred to as the son-in-law of Heller’s good friend Heni.  And in several Hebrew versions, Wolf is called Wolf Slawes SeGal, indicating that he was a Levite.

Guido Kisch, “Die Megillat Eba in Seligmann Kisch’s Übersetzung,” Jahrbuch der Gesellschaft für Geschichte der Juden in der Tschechoslovakischen Republik, p. 440 (1929).

 

Megillat Ebah, Yom Tov Lipman, date unknown (after 1895). https://www.hebrewbooks.org/pdfpager.aspx?req=3840&st=&pgnum=16

Wolf Slawes’ relation as son-in-law, husband of Rabbi Heller’s daughter Nissel, is the version that most genealogists have adopted, notably in the history of the Schick family compiled by Solomon Zvi Schick’s Mi Moshe Ad Moshe (Kahn and Fried Publishers, Munkacs 1903).  This version also appears in all three editions of Neil Rosenstein’s Unbroken Chain (see Third Edition, Vol. I, Chapter Two, Section B, page 40) as well as in The Jacobi Papers, Vol. IV, p. 118, 11.2.  In all of these Wolf and his male descendants are Levites.

I initially approached Wolf Slawes from a completely different direction. I was working on the ancestry of the famous 19th century chess master Baron Ignatz von Kolisch of Bratislava, Slovakia whom my family has always assumed was a cousin of my grandmother Gertrud Kolisch, whose father came from Korycany, Moravia.  By good fortune, I was able to trace Baron Kolisch’s paternal ancestry back to Prague, and then extended it all the way back to a Wolf Kalisch who died in Prague in 1691, the son of haGaon Menachem Man of Brisk (d. 1651 Hamburg), the son of Rabbi Yechiel (Michel) Spira, d. 1598 Prague.  Researching this family, I soon discovered that Rabbi Yechiel Spira was also the father of a man known as Benjamin Wolf Slawes (d. 1630 Prague).  (Benjamin and Wolf are related names, or kinnui, because the symbol of the ancient Israelite tribe of Benjamin was a wolf.)  Benjamin Wolf Slawes was for more than thirty years an associate rabbi and director of the Talmudic academy in Prague, who briefly took over the chief rabbinate position when Rabbi Heller was arrested and sent to Vienna. His son, Aaron Shimon Spira Wedeles was for forty years Chief Rabbi of Prague and Bohemia.  The text of Benjamin Wolf’s tombstone is published in Koppelmann Lieben’s Gal-Ed (Prague 1856), where he is called Wolf Dayan (i.e. Judge).  Notably, Wolf is not identified as a Levite, and neither are any of his male line descendants.

Grave inscription for Wolf Dayan son of haGaon Yechiel, October 12, 1630. Koppelmann Lieben, Gal-Ed, Grabsteininschriften des Prager Isr. Alten Friedhof, p. 15 (German), p. 6 (Hebrew) (M.J. Landau Prague 1856).

In 1911 and 1912, there were two important publications that helped further identify Wolf Slawes.  In 1911, Alfred Landau and the incomparable Bernhard Wachstein published Jüdische Privatbriefe aus dem Jahre 1619.  Members of the Jewish Historical Commission in Vienna had discovered in the Austrian State Archives a remarkable trove of unopened letters written by the Jews of Prague to their family members in Vienna.  Somehow the letters had not been delivered, but ended up in the archives, only to be discovered almost 300 years later.  Written in Judeo-deutsch, a form of Yiddish, and sometimes even in code, the letters offered a rare glimpse into the daily lives and concerns of the Jews living in early 17th century Prague and Vienna.  Two of the letters published in Privatbriefe (8A and 8B) were authored by Benjamin Wolf and his wife Chawa Slawes to their daughter Gutrud and her husband Israel Auerbach.  A third letter (9) was written by Benjamin Wolf to his new in-law Jekel Schick.  Chawa Slawes was also the first name on item 47, a list of the authors of the letters with the sums paid to bring the letters from Prague to Vienna.  It is worth noting that the Privatbriefe included two letters (20A and 20B) by Rabbi Heller and his wife Rechel to Rechel’s aunt Edel, the widow of Ahron Malkes and daughter of Rabbi Moses Ahron Theomim.  Wachstein, who simultaneously published his enormous, unsurpassed volumes on the inscriptions of the old Jewish cemetery in Vienna, Die Inschriften des Alten Judenfriedhofes in Wien, was perfectly placed to identify the authors, recipients and the various family members and friends referenced in the letters.

Landau, Alfred and Bernhard Wachstein, Jüdische Privatbriefe aus dem Jahre 1619, pp. 26-27 (Wilhelm Braumüller Vienna 1911).

The following year, in 1912, Ludwig Lazarus published an article “Neue Beiträge zur Geschichte der Familie Fränkel-Spira,” in Monatsschrift für Geschichte und Wissenschaft des Judentums Jahrg. 56 (N. F. 20), H. 5/6 (Mai/Juni 1912), pp. 334-358, featuring two new sources. One of these was a transcription of an old letter concerning family history written in 1734 by the elderly Samuel Porges (d. 1734), a grandson of Menachem Man of Brisk, to the Prague community elder Simon Fränkel Spira (d. 1745 Prague), a great-great-grandson of Wolf Slawes, the brother of Menachem Man.  From this source, Lazarus was able to create a family tree identifying the related descendants of Jechiel (Michel) Spira, including Wolf Slawes, the father of Rabbi Simon Spira.

Ludwig Lazarus, “Neue Beiträge zur Geschichte der Familie Fränkel-Spira,” Monatsschrift für Geschichte und Wissenschaft des Judentums Jahrg. 56 (N. F. 20), H. 5/6 (Mai/Juni 1912), pp. 334-358.

Notably, there is no mention of Rabbi Heller’s daughter Nissel, as there certainly would have been if Benjamin Wolf Slawes had been her husband.  And there is no possibility that Wolf had a second wife after Chawa, because Wolf died in 1630, as we have already seen, and his wife Chawa died as a widow in 1648, as seen in this grave inscription transcribed by the Prague historian Otto Muneles (1894-1967).

Grave inscription of Chawa the widow of Wolf Dayan of the Meisel Schul November 9, 1648 by Otto Muneles, Jewish Museum Prague.

So we are left with the question, are there really two different men named Wolf Slawes living in Prague at the same time, one married to Chawa and another married to Rabbi Heller’s daughter Nissel?  The answer is certainly no.  First, Slawes is not a regular surname in Prague.  There are pretty much no others that we find there.  In the Prague cemetery book Die Familien Prags by Simon Hock (1815-1887), published posthumously in 1892 by the prolific historian David Kaufmann (1852-1899), we find on page 240 just four graves listed under the name Slawes, three of whom are identified as descendants of Rabbi Heller or Wolf Slawes.  Benjamin Wolf and Chawa Slawes are not listed at all.

Simon Hock, Die Familien Prags, p. 240 (Kaufmann 1892).

The one that easily could have resolved the mystery is the grave of Rabbi Heller’s daughter Nissel, who died October 11, 1639 in Prague.  But she died during a plague year, and is buried with her sister Resel and five of Heller’s grandchildren: Moshe, Simcha, Matel, Manes and Gutrut.  Rabbi Heller himself apparently wrote the elaborate, poetic grave inscription, which unfortunately, and quite unusually, does not mention the husbands of his daughters or the fathers of his grandchildren.

Grave of Nissel and Resel, daughters of Rabbi Heller, and five of Heller’s grandchildren: Moshe, Simcha, Matel, Manes and Gutrut. Courtesy of Daniel Polakovic, Jewish Museum Prague.

We know from his autobiography that Rabbi Heller attended the wedding of his grandson Nathan, the son of his daughter Nissel.  Nathan’s wife was Chana the daughter of Rabbi Moshe Katzenellenbogen Wahl, Av Beit Din (Rabbinic Judge) of Chelm, the grandson of the famous “King for a Day” Saul Wahl.  According to the Schick genealogy, Solomon Zvi Schick’s Mi Moshe ad Moshe (1903), which is based in part on David Tebele Efrati’s Toldot Anshei Shame (1875), Rabbi Heller’s grandson Nathan and his wife Chana were the parents of Moshe HaLevi d. 1684 Krakow and his sister Nissel, named after her grandmother, who was married to Rabbi Schmuel Schick of Pruzany.

Solomon Zvi Schick, Mi Moshe ad Moshe, p. 20 (1903).

It is not certain if Nissel Schick is the same as the second Nissel identified in Hock-Kaufmann’s Die Familien Prags, who is described as Nissel, the granddaughter of Wolf Slawes Flekeles? d. 1689/90.  The source provided for that entry is an early Pinkas Synagogue Memorbuch, which has not been located.  No grave in Prague has been identified for this Nissel.

The third of these Slawes graves listed in Hock-Kaufmann refers to a young boy Juda, the son of Manes SeGal, grandson of the elderly Wolf Slawes Horowitz SeGal, who died in Prague on September 23, 1700, as recorded in the grave inscription transcribed by Otto Muneles.

Otto Muneles’ grave inscription for Juda, son of Manes SeGal, grandson of the elderly Wolf Slawes Horowitz SeGal, died September 23, 1700, Prague. Courtesy of Daniel Polakovic, Jewish Museum Prague.

The surnames Flekeles and Horowitz  on the last two entries in Hock-Kaufmann’s Die Familien Prags provide clues for a solution to the problem.  We find in the Prague cemetery the grave of Juda’s father Manes, who died February 20, 1707 in Prague.  On his epitaph transcribed by Rabbi Leopold Popper (1826-1885), who also compiled a useful index of the graves in the old cemetery in Prague, Manes is described as the son of the deceased Jehuda SeGal Horowitz Flekeles.  There is no mentioned of either Wolf Slawes or Rabbi Heller on Manes’ grave, but he very clearly was a Levite, as evidenced also by the image of a pitcher of water on the grave, a symbol for Levites.

Leopold Popper’s grave inscription for Manes, son of the deceased Jehuda SeGal Horowitz Flekeles. Courtesy of Alexandr Putik, Jewish Museum Prague.

There is a grave entry in Hock-Kaufmann for Suessele, the daughter of Juda Horowitz SeGal, wife of Jekel r’Th, who dies 1688, but I have not yet discovered the grave of Manes and Suessele’s father Juda/Jehuda Horowitz Flekeles.  However, we have yet another clue in the old Prague cemetery.  There is yet another Nissel who dies July 14, 1726, the wife of Loeb b. Meir Karpeles and daughter of the deceased Shalom Schachne Horowitz HaLevi, grandson of the Gaon Tosafot JomTov.

Leopold Popper’s grave inscription for Nissel, the wife of Loeb b. Meir Karpeles and daughter of the deceased Shalom Schachne Horowitz HaLevi, grandson of the Gaon Tosafot JomTov, died July 14, 1726, Prague. Courtesy of Alexandr Putik, Jewish Musuem Prague.

Loeb and Nissel Karpeles have a son who dies in 1720 named Shalom Schachne after his maternal grandfather.  Loeb Karpeles, shammesh of the Burial Brotherhood, who died March 28,  1729, is mentioned in the Book of Seats of the Pinkas Synagogue in Prague, as follows: “R. Leb, son of R. Meir Karpeles, declared that he descended from the family of the Teomim on his wife’s side as she was the daughter of R. Schachna, grandson of Wolf Slawes, grandson [sic] of the author Tosafot Jomtob, son-in-law of R. Ahron Teomim.”  Hana Volavkova, The Pinkas Synagogue, p. 136 (State Jewish Museum, Prague 1955).  Nissel Karpeles is also found in a later Pinkas Synagogue Memorbuch as Nissel bat Shalom Schachne.

Nissel, daughter of Shalom Schachne, Pinkas Synagogue Memorbuch. Courtesy of Daniel Polakovic, Jewish Museum Prague.

A grave for Nissel Karpeles’ father Shalom Schachne Horowitz has not been found, but his unusual name allows us to identify his family. He is without a doubt closely related and named for Ahron Schalom (called Schechna), who died February 14, 1632 in Vienna, the son of Juda Flekeles Horowitz ha-Levi.

Grave inscription of Ahron Schalom “Schechna” son of Juda Flekels-Horowitz, d. February 14, 1623 Vienna. Bernard Wachstein, Die Inschriften des Alten Judenfriedhofes in Wien, 1. Teil 1540-1670, p. 90 (1912).

Schechna is mentioned in the Privatbriefe as the recipient of two letters (36 and 37) from his sister Blümel in Prague.  Schechna’s wife Edel Auerbach is also the niece of Israel Auerbach, the son-in-law of Wolf and Chawa Slawes.  We don’t know of any surviving children born to Edel and Schechna, but Schechna and Blümel did have a brother David, who may have died relatively young in 1602. His grave inscription is described in Hock-Kaufmann, p. 274, as “David bn Juda haLevi seGal Flekeles z”l, ish Horwitz.”  David apparently had at least four children, Hirsch d. 1605, Pessel d. 1636, Hindl d. 1639 and Wolf d. September 12, 1671.  (These dates work if David died relatively young, his son Hirsch died young, and his son Wolf died very old, which needs to be checked against their full grave inscriptions.)  Wolf’s epitaph transcribed by Popper reads “On Shabbat, 8 Tishri 1671 (died) and the next day, Sunday, was buried the precious and learned in Kabbala mhr”r Wolf son of mv”h David Flekeles seGal z”l m’mishpachot Horwitz.”

Grave inscription by Leopold Popper for Wolf son of David Flekeles Horowitz, died September 12, 1671. Courtesy of Alexandr Putik, Jewish Museum Prague.

This Wolf, the son of David Flekeles Horowitz, appears to me quite certain to be the real husband of Rabbi Heller’s daughter Nissel.  Unlike Wolf Slawes, Wolf Flekeles Horowitz is a Levite.  He was much younger than the older Wolf Slawes, who is much more likely to be the one who paid the ransom for Rabbi Heller in 1629.  The younger Wolf outlived Nissel, who died young in 1639.  He and Nissel should be the parents of: (1) Nathan, the father of Nissel Schick; (2) Juda, the father of Manes and Suessele, and grandfather of Manes’s son Juda; and (3) Shalom Schachne, the father of Nissel Karpeles.  This solution would explain the references to Horowitz and Flekeles on the various graves of the descendants of Wolf who also are descendants of Rabbi Heller.

I have not seen the actual graves of Wolf’s great-grandson Juda b. Manes who died in 1700, but if the transcription by Muneles is accurate, it means that already by 1700, twenty-nine years after Wolf Flekeles Horowitz had died, his family had confused him with the Wolf Slawes in Rabbi Heller’s autobiography.  What makes this remarkable is that Juda’s father Manes, Wolf’s grandson, was still alive when Juda died.  However, one must remember that Wolf’s wife Nissel died young in the plague year 1639, so it is possible that their children, including Manes’ father Juda, were raised by someone else, perhaps by someone in Nissel’s family, rather than Wolf’s. This might also explain why we have not yet located graves for any of Wolf and Nissel’s children.  Clearly, Loeb Karpeles, who had married into the family, was also under this mistaken impression when he gave his declaration to the Pinkas Synagogue for the Book of Seats.  The various versions of the autobiography that were passed down and later published must have reinforced and repeated the error.

The confusion in the family makes sense if one remembers that Rabbi Heller commanded his descendants to read his autobiography.  The name Wolf Slawes was perpetuated only in the autobiography and so it was grafted onto Nissel’s husband Wolf by mistake.  In the family of the actual Wolf Slawes, who was apparently known by the name of his wife’s mother Slawa, the Slawes surname was not perpetuated.  Nothing is known about Chawa’s mother Slawa, unfortunately, but the Slawa name does appear among the descendants of Wolf Slawes, for example the granddaughter of Rabbi Ahron, Slawa Neustädtl, or his great-granddaughter Schlawa Bunzel.  Wolf’s grave does not mention the surname Slawes, only the occupational name Dayan (Judge), and already his daughter Bune Perlhefter‘s grave from 1660 in Prague referred to her father as “Wolf Wedeles,” using a surname adopted by her brother Rabbi Ahron Simon.

This analysis requires a change in the traditional genealogy of the Schick family, who refer to the descendants of Wolf and Nissel under the surname Heller.  Other than the various 19th and 20th century genealogies based on the mistaken identification of Nissel’s husband Wolf, there is no evidence to support the use of the Heller surname for Nissel’s husband or her descendants.  These descendants should however be pleased to find a connection to the Flekeles-Horowitz family.

Postscript: For me, genealogy is a collaborative project and I wish to thank the many people who assisted me as I attempted to solve the puzzle of Wolf Slawes.  I have had the benefit of consulting with Alexandr Putik and Daniel Polakovic at the Jewish Museum of Prague, who provided some of the grave inscriptions.  My Internet friends Nancy and Thomas High in Brookline, Mass. work tirelessly on the old Popper notebooks for the Prague old cemetery and helped me decipher Hebrew inscriptions.  On Geni.com, I am assisted by hundreds of researchers in this field, each with special skills, including Mayer Bar, Hatte Blejer, Adam Cherson, Bella Doron, and Samuel Royde.  You can see  the twists and turn in our Geni discussion.  I am certain we will continue to uncover new materials to enhance or modify our conclusions.  That is how progress is made.

 

 

 

 

 

 

Finding My Jewish Ancestors in Prague

The original version of this story appeared in the Jewish Journal.

I had a crazy idea this past summer for a new presentation at the next Jewish genealogy conference scheduled for August 2020 in San Diego.  What if I tried to document, using original sources, a direct ancestral line going back 500 years?  I’ve known for the past 45 years of working on my family tree that my great-grandmother came from an old Prague family, and in recent years I was able, through some secondary sources, to break through and show how she was related to the famous Maharal of Prague and many others.  But I wanted to see for myself if I could really prove that these sources were correct.  So, in October I went on a trip to Prague to find the evidence.

I chose a different line, not to the Maharal, because that seemed a bit too predictable, but rather to the equally famous Maharik, perhaps the most influential Italian Rabbi of the 15th century.  Various sources made this seem possible, but there were many steps along the way.  This trip to Prague would help start me down the path.

Most Jews have a tough time tracing their families more than 100-200 years, but if you are lucky, and can find a connection to Jews living in large cities, going deeper is a real possibility.  Pauline Nachod, the mother of my grandfather Arnold Schoenberg, was born in Prague in 1848.  Her ancestors are buried there in the crowded old cemetery, the one with all the stones going this way and that.

I stayed with my cousin Michaela, whom I found over 25 years ago after the end of Communism, and visited four archives during my week in Prague.  My friend the expert genealogist Julius Müller guided me the first day. In one branch of the National Archives, I was a bit surprised to find a large police file from the mid 19th century for Pauline’s father, the innkeeper Josef Nachod.  I asked the archivist and he said this was quite normal, that some people have thick files of over 1,000 pages.  What was Josef’s crime?  Apparently, he kept his inn open until 11:15 pm one evening, and once was caught allowing two unlicensed musicians to perform.  He was also sued for calling an old man who owed him money a dirty name.  So, no high crimes and misdemeanors, thank goodness.

In another branch of the National Archives, I saw the 1794 census where Josef’s father Gabriel is listed as a cantor, the official book that recorded Gabriel and Joseph’s family (there was a quota on Jewish families in Bohemia at that time so the government kept track of everyone), and the 1849 death record for Gabriel where his profession is described as a wedding planner.  After combing through seven boxes of tax records, I finally located the 1760 marriage permission for Gabriel’s parents Avigdor and Pessel.  I even held in my hands the enormous 1729 Jewish census book that shows Avigdor as a child living with his father Moses, as well as Moses’ father Benet, the son of Manis Nachod.

In the Municipal Archives, they have over 300 boxes of Jewish community records that are still uncatalogued and off-limits to researchers.  But among the catalogued records were files from 1721 relating to Benet’s second marriage and some contracts concerning his house.  I still need to decipher them to figure out what exactly they are.  I also found marriage records from the 1730s, which will be very helpful for other families, but not this line.

I visited the archives of the Jewish Museum of Prague, where the young archivist Tomas Krakora gave me the 1748 census page for when Moses Nachod and his son Avigdor were admitted back to Prague after Empress Maria Therese had expelled all the Jews for three years, and another record of the permission and taxes for Avigdor’s 1760 wedding to Pessel Bunzel (a descendant of the Maharal).  Then I went with Daniel Polakovic of the Jewish Museum to the old cemetery to find the family graves.  Daniel, who has been working on a comprehensive database of the old cemetery, took me off the tourist path into the middle of the graveyard where we found in one section Moses (1759), Benet (1742), and Manis Nachod (1707), as well as Manis’ wife Frumetl Ausch (1724). In another section we found Frumetl’s mother Jentl Chalfan (c. 1700), next to her mother Kressel (1634), great-granddaughter of the Maharal’s brother Sinai.  Jentl’s father Chaim Heschel Chalfan (1648) is buried in Vienna (the grave was buried during WWII and has not been excavated yet), but Chaim’s great-grandfather Abba Mari Chalfan (1586), the great-grandson of the Maharik, is buried in Prague. Daniel took a photo of me next to his grave.  Later he told me about a beautiful Torah curtain (parochet) donated by Manis and Frumetl Nachod on the birth of their grandson Moses, my 5g-grandfather, in 1697. This Torah curtain is now part of the collection of the Jewish Museum in Prague.

I tried to stay focused on one genealogical line on this trip, but I couldn’t help making some other investigations.  My friend Fred Chvatal took me to Hresihlavy, a very small farming village about 90 minutes west of Prague, where the Jewish street looks pretty much the same as it did 220 years ago, when my Zeimer ancestors lived there before moving to Prague. The cemetery there has gravestones made from bright red sandstone that are unique to this area.  But the graves were from after my family left, so we went over to the next village about 10 km away Teresov, where we found some older graves that I photographed.

The success of this trip makes me eager to return for more.  I am so lucky to have found so many traces of my ancestors, who lived for many centuries in this part of the world.  Thinking of them walking the same streets made me feel almost like I was home there.

Randol Schoenberg at the grave of his 12g-grandfather Abba Maria Chalfan (d. 1586 Prague). Photo Daniel Polakovic.
Nachod family graves in the Prague Old Cemetery
Torah Curtain, gift of Manis ben Shalom Nachod and his wife Frumetl, daughter of Joseph Ausch, Rosh Medina, SeGal, on the birth of their grandson Moshe 1697.

 

Randol Schoenberg holding the Prague 1729 Jewish Census Book, Czech National Archives.

Citizenship, Nationalism and How to Solve Part of the Israel-Palestinian Problem

There are essentially three impediments to a peace agreement between Israelis and Palestinians: final borders, Jerusalem and the right of return.  The first two are of course related, and in my view, will never be amicably resolved because no Palestinian political leader will ever be able to agree to allow Jerusalem to belong to Israel, despite the fact that there has been a Jewish majority in that city for well over 100 years.  (Anti-Semitism is really the sole justification for the division of Jerusalem, and explains the views of the rest of the world which have been essentially unchanged since the terrible 1940s.) But I believe the right of return is a solvable problem, and should be tackled separately.

Palestinians are of course not the only people who fled their homes around 1948.  At the same time, millions of ethnic Germans were pushed out of Poland and Czechoslovakia, and many millions fled to either side of the still contested India-Pakistan border (the likely starting point for World War III).  And of course, many Jews had fled from Europe during  the previous decade.

When my maternal grandparents escaped from Nazi Germany after the Anschluss, the annexation of Austria in 1938, they were stripped of their citizenship and were stateless until they became U.S. citizens in 1946.  It might surprise people to learn that they, and others in their situation, were never offered back their Austrian citizenship after the war.  Jews who had fled could only recover their citizenship if they moved back to Austria, which my grandparents and most others did not want to do.

But many years later, in 1993, Austria amended its citizenship laws to permit its former Jewish citizens to recover Austrian citizenship from abroad.  At that time, my grandparents were already deceased but my mother, born in New York in 1940 shortly after her parents reached the United States (what we would call today an “anchor baby“), was able to persuade the Austrian authorities to permit her to recover the citizenship she should have had at birth, were it not for the Nazis.  As the son of a mother (rather than father) who had “recovered” her Austrian citizenship, I still could not obtain Austrian citizenship at that time.  But in 2013 Austria corrected that sexist rule and opened a brief window that allowed me to become an Austrian citizen in 2014.  I was then also allowed to obtain citizenship for my three minor children.

Last December I was in Vienna and met Wolfgang Sobotka, the president of the Austrian Parliament, at the Centropa Hannukah Party.  I took the opportunity to thank him for Austria’s laws that allowed me and my family to obtain Austrian citizenship.  I am not sure what exactly motivated the various laws that helped me, but the net result was very positive.  I felt good about recovering a piece of my family history, since my ancestors had lived in Austria for more than three hundred years before the Nazis arrived.  I noticed also that my children became suddenly more aware of their Austrian-Jewish heritage, wanting to visit the country and even learn German.  The law had cost Austria very little (we weren’t going to move there or take advantage of any social programs) and had garnered the country some good will from a family that had every reason to hold a grudge.  (Among others, my great-grandfather Siegmund Zeisl had been removed from Vienna in 1942 and murdered in Treblinka.)

Since recovering Austrian citizenship, I have wondered if Israel could also adopt the Austrian model with Palestinians who had fled the country in 1948 and were later denied citizenship under the Israeli citizenship law.  I’ve broached this idea with a number of people and have been met with puzzling reactions that I think demonstrate a misunderstanding of what could actually be accomplished.

The first misconception is that Israel would be flooded with returning Palestinians.  I am certain this isn’t true.  Most people like to stay put where they are, even when their lives might be better somewhere else.  (In German and Yiddish they call this Sitzfleisch, the ability to stay put and just persevere.) This explains why there are still Americans living in Mississippi and Louisiana (the two lowest-ranked states in the country by most measures), rather than moving to California.  More seriously, though, there would be lots of impediments to Palestinians moving to Israel.  The main one is that they don’t want to be Israelis.  Imagine if the citizenship process required a simple oath of allegiance to the State of Israel.  How many Palestinians outside Israel would sign that?  Even if economic opportunities are a draw, language and culture are huge impediments.

If you think it’s easy to apply for and obtain citizenship, like I did with Austria, then maybe I didn’t explain the process thoroughly.  I had to fill out endless forms in German, had to obtain not only certified copies of vital records like birth and marriage records, but also an apostille, a court record affirming that the signature on a vital record is valid.  I had to submit to FBI fingerprinting to confirm that I didn’t have a criminal record.  (My sister couldn’t complete her application because, despite several attempts, the FBI couldn’t read her fingerprints.)  I had to submit a financial statement and confirming bank documents and bills to prove I wouldn’t be a burden on the state.  I had to go to the consular office, which happened to be nearby, several times to execute documents.  And I had to pay.  Yes, that’s right, it cost me money to submit the application and to obtain the citizenship certificate and passport.  It wasn’t cheap.

My application was submitted in a very friendly process and I was helped by the consular officials, but I think you can imagine how bureaucratic and difficult it might be for the average person.  The truth is that most Palestinians wouldn’t be able to obtain the required documentation (proving descent from Palestinians living in what is now Israel) and wouldn’t have the stamina to complete the process, even if they could locate everything they needed.  If you assume, generously, that one in ten eligible Palestinians would want to apply, and of those probably only ten or twenty percent could succeed, we’re now talking about 50,000-100,000 people, not the 5 million estimated by UNRWA.  By way of contrast, Israel absorbed about one million Russian immigrants after 1989.

Of course, the process could take into account the potential for a flood of returning Palestinians by first asking for preliminary applications (like a declaration of intention) during a limited time period to gauge the interest of Palestinians in obtaining Israeli citizenship.  But my guess is that the flood would turn out to be just a trickle.  I don’t see the Palestinian leadership in the West Bank, Gaza or Lebanon encouraging their populations to apply for Israeli citizenship.  They are still committed to eliminating Israel, not joining it.  When offered a path to citizenship, the vast majority of Palestinians in East Jerusalem (95%) chose not to become citizens, and only a third of those who applied were successful.  So in the end you’ll have only the most eager and able Palestinians applying for and obtaining Israeli citizenship, mostly the ones with close family in Israel whom they wish to join.  Admitting them would make little difference to Israel, but it would likely make a big difference to the rest of the world by demonstrating that Israel is ready to move beyond the hostilities of the 1940s and invite back the former residents who fled.  One of the three major impediments to peace would be off the table.

I have another proposal for Israel that it should consider at the same time.  Last year, Israel passed a somewhat controversial new law defining Israel as the Nation-State of the Jewish People.  To that end, Israel should allow all Jews to apply for Israeli citizenship, not only Jews who decide to move to Israel.  The current Law of Return allows Jews (or those with at least one Jewish grandparent) to become Israeli citizens by moving to Israel.  Originally, Israel was eager to have new Jewish immigrants and afforded citizenship only to those who decided to live there.  But after 70 years, Israel doesn’t necessarily need more Jewish immigrants.  Land and housing are more scarce than they used to be.  The State of Israel is starting to get too crowded.  Of course, you don’t have to live in Israel to be a citizen.  Many Israelis have moved out of Israel and live elsewhere, lots of them in America.  They all retain their Israeli citizenship.  Why not allow diaspora Jews who are eligible to become Israeli citizens to gain citizenship without moving there?  Certainly not all Jews would do so, but many of those who are most committed to Israel would certainly do it to show their support.  It would be good pr for Israel, and a good way to maintain ties with the diaspora.  It could also offset any increase in the Palestinian population in Israel, the so-called demographic problem.

When I have made this suggestion to Israelis they are aghast.  There’s a tendency of Israelis to think of citizenship as a reward that can only be given to those who have somehow suffered for it.  I think that misunderstands the function of citizenship in today’s world.  Israel doesn’t require all of its citizens to serve in the military.  The children of Israelis living abroad are not required to serve, nor are Arabs or Yeshiva students.  So that is no argument.

Expanding the idea of citizenship would also help counter a disturbing nationalist trend in Israel.  Yoram Hazony, whom I knew pretty well back when we were students at Princeton, has written a new book called The Virtues of NationalismYoram has always been exceedingly intelligent and a good debater, and the book is, as expected, extremely well-written.  Yoram, like his conservative counterparts in Trump’s Republican Party, is simply in love with the idea of nationalism, especially as a counterweight to the oppressively utopian uniformity of “globalist” imperialistic international legal structures.  The flaw in his argument (there is always a flaw) is one of perspective.  Hazony sees great benefit in the idea of a nation-state as a way to avoid the anarchic competition of smaller clans and tribes.  Yet he has no real answer for when the benefits of combination into larger structures end and the dangers of imperial structures begin.  If it is good for families to form clans, and clans to form tribes, and tribes to form states, and states to form nations, then why is not good for nations to form multi-national  entities?  Why is it good for Italian states to become a nation, but not good for Italy to join the European Union?  Hazony really cannot answer that question, and he doesn’t want to.  His main goal is to support a theory that a certain form of ethnic nationalism is superior.

It is too bad Hazony isn’t more familiar with European history.  His main focus is on Anglo-American philosophy and history.  But it turns out that the island of Great Britain isn’t really a great model for understanding the difficulties of nation-states.  Because it is an island.  As Brexiters are learning this month as their plans stumble over the problem of the border between Northern Ireland and Ireland, things get more complicated with a land border.  National borders don’t change human nature and geography.  People who live in close proximity with each other are going to interact and form ties that cross the border, weakening the exclusive national characteristics the political border attempts to separate.  This is why divided cities, like Berlin, Nicosia and Jerusalem, simply don’t work.  Eventually, the borders have to fall.  And the same is true for larger national borders.  Ultimately, the states need to work together to avoid conflict.  They need to accept a dilution of their national sovereignty and ethnic purity.  National cooperation agreements, such as the European Union or NAFTA, allowing for free movement of people, labor, goods and capital, are more efficient, more productive and therefore superior.  Just as clans are superior to families, and tribes superior to clans, and states superior to tribes, and nations superior to states, so too are international organizations superior to nations.  As our legal and material technology improves, humans can organize in larger and larger structures for the benefit of all.

The irony of Hazony’s argument is that for Jews living as minorities in host countries, larger organizations have traditionally offered greater protection.  In Austria-Hungary prior to World War I, Jews were a substantial minority protected by the Habsburg emperor.  This led to great prosperity and unparalleled intellectual achievement.  The rise of nationalism and the breakup of the empire into a dozen smaller states substantially decreased those protections, and left Jews open to slaughter by the Nazis.  Hazony may be correct that Israel is more secure in a world where there are lots of similarly-sized smaller, independent ethnic national states.  But his mistake is thinking that such a world is stable.  The truth is that in order to survive, small nations need allies; they need to combine with larger nations and multi-national entities (or be protected by them).  “No man is an island,” as John Donne wrote, and most nations aren’t either.

In the modern era, citizenship is a tool that nations can use for various purposes.  One is to define the nation by means of inclusion and exclusion.  But smaller countries are discovering that citizenship can also be used to obtain allies abroad.  My experience receiving Austrian citizenship I think provides a good model for what Israel could do for Palestinians, diaspora Jews, and the State of Israel.

The New Jewish Genealogy

I’ve loved genealogy since I was a little boy, and in the past ten years have become something of an addict and expert in the field.  It is no secret why so many people, especially Jews, love genealogy.  What often starts as a very narcissistic all-about-me exercise can quickly turn into an obsession.  The Freudian psychoanalyst Sallyann Amdur Sack-Pikus, editor of Avotaynu, The International Review of Jewish Genealogy, recently opined that “the basic human needs for belongingness and for some sort of immortality are what lie at the root of the compelling intensity of the genealogical pursuit that so many of us feel—simply because this activity guarantees the fulfillment of those needs.”  (Avotaynu, Vol. XXIV, Number 4, Winter 2018, p. 7.)  Of course, Jews have been doing genealogy a long time.  We may not pay such close attention in synagogue, but large portions of the Bible are devoted solely to genealogies describing the ancestors and descendants of various biblical figures.  Still, new technology has opened the door to genealogical treasures that our ancestors could only have dreamed of.  We have entered the golden age of Jewish genealogy.

An Explosion of Resources

Whether you are just starting out, or still trying to break through a brick wall that has been blocking your path for decades, the absolute explosion of new resources available to you will make your life much easier.  The main internet hub for Jewish genealogy is JewishGen, which provides access to almost 30 million records ranging from vital records (births, deaths and marriages) to census, cemetery and Holocaust records.  Genealogy is all local, meaning that what is available for you depends on what geographic location you are searching.  Research in Alsace or Prussia is different from research in Rumania or Belarus.  And even within a particular region, the availability of records may vary widely.  But no matter where you are searching, JewishGen should be your first stop.  New records are being added all the time.  One of my favorites, the JewishGen Online Worldwide Burial Registry, has 3.3 million burial records from more than 7,700 cemeteries in 128 countries. JewishGen also has a searchable index for Aufbau 1944-1946 with 33,557 names of people being sought by loved ones at the end of World War II.  Readers of Aufbau should also be interested in JewishGen’s German Special Interest Group (GerSIG), which includes separate web pages for hundreds of towns with descriptions of available records and where to find them.  Beyond JewishGen there are at least three large data aggregators that provide access to databases and records, including vital records, census and immigration documents: Ancestry, MyHeritage and FamilySearch.  Each of these sources has its strengths and weaknesses.  FamilySearch is free, while Ancestry and MyHeritage are subscription based.  There are also specialized databases worth visiting.  GenTeam covers Austrian genealogy (but also Jewish records for Nürnberg, Prague, Budapest and some towns in Moravia). Akevoth has an excellent database for Jews from the Netherlands.  Of course, Yad Vashem has a searchable database for 4.7 million victims of the Holocaust.  BillionGraves just teamed up with MyHeritage to create a database of over 1.5 million graves in Israel.  The Goethe University in Frankfurt am Main also has an extensive collection of German Jewish periodicals including many on genealogy, a goldmine for researchers.

Collaboration

Although interviewing family members is one of the great joys of genealogy, most people don’t start working on the trees until everyone older is already gone.  As a result, genealogy can be a lonely exercise.  But not anymore.  The advent of the Internet has not only made records available, but has made it possible to collaborate with other genealogists from all over the world.  In short, it is no longer necessary to do everything by yourself.  Teamwork is now the name of the game.

You can build your tree using all sorts of computer programs, but in my view, the best place to build your tree is on Geni, a tree-building website owned by MyHeritage.  Geni’s World Family Tree is like a giant jigsaw puzzle where everyone works together on the same tree.  You start by building out your own tree until Geni’s matching algorithm tells you that you have duplicated a person who is already on the tree.  At that point you can merge the duplicates and then join the rest of the tree, taking advantage of all the work that has already been done and adding to it.  The World Family Tree currently has over 130 million connected profiles created by over 4 million connected genealogists.  For Jewish genealogy, this method has been a real bonanza.  Giving new life to the old Jewish geography game, it is now possible to find a relationship path between any two Jews merely by linking them up to the big tree.  If there is not yet a direct, blood relationship, Geni will find a different path, from cousin to cousin to cousin.  It turns out that there really aren’t so many Jews in the world and all of us are rather closely connected in this fashion.

One of Geni’s many advantages is a large contingent of volunteer curators (I am one of over forty Jewish genealogy curators).  The curators are there to assist people with problems in the tree, help correct errors, clean up messes and resolve disputes.  You no longer have to worry about not understanding how the program works, or how to find what you are looking for.  The curators, and many other users, are there to assist you.  Geni also provides for public discussions and projects that allow us to organize our genealogies in different ways.  For example, the Theresienstadt Ghetto project has over 27,000 profiles attached to it, meaning that we already have family trees for almost twenty percent of the inmates of that camp. The main directory for Jewish projects on Geni is the Jewish Genealogy Portal which will lead you to hundreds of projects that have been set up for German communities.

You can also seek help on Facebook where there are two large Jewish genealogy groups — Jewish Genealogy Portal and Tracing the Tribe — filled with tens of thousands of people who are happy to assist with translations or provide assistance.  Asking for help is easy, and it is the best way to learn.

DNA

The genealogical buzzword of the past few years is DNA.  A number of companies provide tests that can be used for genealogical research.  Perhaps the largest Jewish database is held by FamilyTreeDNA.  Researchers can purchase kits or transfer tests obtained elsewhere.  There are three main ways to use your DNA results.  Y-DNA, which is passed down form father to son, can help find matches along the paternal line.  Mitochondrial or mtDNA, comes from the mother and helps find matches along the maternal line.  All of the rest, called Autosomal, is a mix of what you inherited from your father or mother, but can be analyzed to find large matching segments with a common source.  For Ashkenazi Jews, unfortunately the autosomal DNA is so uniform, that most of us look like we are very close cousins.  You’ll find thousands of matches that are suggested to be connected within a few generations, but more likely the connections are much farther back.  This is a result of a small founder population and centuries of endogamy (Jews marrying only other Jews who are also their cousins).  So, while you will get many suggested matches, you will likely have to sort through a lot of them to find someone you could connect with on your family tree.  Still, DNA research is still in its early stages, and it is smart to get tested now.  You may not find someone when you test, but years from now, someone may find you.

Why Genealogy?

For me, genealogy is an exciting and endless pursuit.  In no sense will I ever be finished, but along the way I have discovered and learned an enormous amount about not only my own family history, but the history of Jews and the world.  Just this past year, my friend Nancy High and I have been working through some old notebooks that catalogue the old cemetery in Prague.  I had long hoped that I would be able to use the cemetery and other genealogical resources to push back the family tree of my great-grandmother Pauline Schönberg geb. Nachod, who was born in Prague in 1848.  The old genealogy for my grandfather the composer Arnold Schönberg that was completed by Heinz Schöny for the Schönberg centennial in 1974 had taken her family as far back as the mid 18th century.

Using the cemetery records, I am now able to document her family all the way back to the 16th century and beyond.  As I had hoped, my great-grandmother is indeed a descendant (several different ways) of the famous Rabbi Yehuda ben Bezalel Loew (MaHaRaL) (d. 1609).  But that’s not all.  I’ve also found a direct connection to Rabbi Eliyahu Menachem Chalfan of Venice (d. 1560), an Italian physician and talmudic scholar known for providing an opinion (in 1544) that a Jew may instruct a Christian in Hebrew.  Rabbi Chalfan also provided an opinion (in 1530) regarding the divorce of King Henry VIII, which the King’s emissary Richard Croke used to try to persuade the Pope to annul the marriage.  Chalfan’s maternal grandfather, Rabbi Joseph ben Solomon Trabotto Colon (d. 1480 Pavia) (MaHaRIK), originally from Chambéry, Savoy, was the foremost Talmudist of Italy in the second half of the fifteenth century, whose opinions were enormously important for the development of Jewish law.  In one, he ordered the neighboring communities to contribute to a ransom for the release of Jews who had been falsely accused in Regensburg.  Rabbi Colon decided that the communities could not refuse to pay their share, because the same accusations might befall them, and if the accused in Regensburg were ransomed and proved innocent, this would also benefit the surrounding communities.

Another ancestor, Moshe ben Hanok Altschul, was the author of the “Brantspiegel” (1602), perhaps the first popular book written in Yiddish, directed at a female audience with instructions on the ethical manner of keeping house and raising a family.  His son Chanoch Sofer Altschul (1564-1632) is famous for the Purim of the Curtains, recounting his miraculous escape from death after stolen curtains were given to him, as the Shammesh (servant) of the community, to return to the authorities.  Although Chanoch had commanded his descendants to recount his story every year on the 22nd of Tevet, probably no one had done so for over a century before our family revived the tradition this past year.  These and other stories I most certainly never would have come across had it not been for my passion for genealogy.

If I could give one piece of advice, it is this.  Don’t wait.  Go to Geni.com and start building your tree (for free).  As Rabbit Tarfon stated in Pirke Avot 2:21: “You are not obligated to complete the task, but neither are you free to desist from it.”

E. Randol Schoenberg is an attorney known for the recovery of Nazi-looted Klimt paintings, as recounted in the film Woman in Gold (2015).  He is a board member of JewishGen, and the author of the Beginner’s Guide to Austrian-Jewish Genealogy and Getting Started with Czech-Jewish Genealogy. To contact him, find him on Geni at https://www.geni.com/people/Randy-Schoenberg/6000000002764082210 or on the Jewish Genealogy Portal on Facebook.

 

 

 

 

 

 

Purim of the Curtains

One of the things I most like about genealogy is the ability to discover the often forgotten history of our ancestors and their Jewish communities. This year, a breakthrough on a branch of my family tree in Prague led me to an amazing discovery of a long-forgotten family tradition that we’ll be celebrating again this year on December 30 (22 Tevet).

The Altschul family is one of the oldest families from Prague. They derive their name from the Old Synagogue, which was torn down in 1867 and replaced with the new Spanish Synagogue. The Old Synagogue in Prague was even older than the still-existing Altneuschul that was completed in 1270. In 1546, a list of Jews with letters of permission for residence in Prague includes my 10g-grandfather Enoch “von der alten Schule,” his wife Fredl and their five children Moses, Judka, Ryle, Sendl and Lida. Enoch’s son Moses became the author of Der Brandspiegel (The Burning/Magnifying Mirror), printed in 1602, which has been called “the first original comprehensive book of ethics in Yiddish.” Aimed primarily at instructing women who could not read Hebrew, the book included chapters on “how a woman should behave at home” and “how a woman should treat her domestic help.” Der Brandspiegel was an early Yiddish best-seller, going through numerous printings through 1706.

Moses Altschul’s son Chanoch Altschul (1564-1632), my 8g-grandfather, served for thirty years as a shammesh or servant of the Jewish community in Prague. In the winter of 1623, while the Court Jew Jacob Bassevi was away from Prague on business in Vienna, some fine damask curtains were stolen from the palace of Prince Charles of Lichtenstein. The capricious mayor of Prague Rudolf von Waldstein ordered an investigation and notified the public that the curtains were missing. In accordance with his official duties, Chanoch went to all of the synagogues in the Jewish quarter and made an announcement that anyone having information about the stolen curtains should inform him immediately.

No sooner had Chanoch returned home and settled down in his chair to study than the stolen curtains were dropped off at Chanoch’s home by Joseph Thein, who said he had purchased them unwittingly from two soldiers. Chanoch dutifully brought the curtains to the parnas or leader of the community Jacob Teomim, who turned them over to the mayor.

Waldstein was not satisfied merely to recover the curtains from Teomim. He wanted to know who had stolen them, so that he could mete out a severe punishment. Teomim said that he had received the curtains from Chanoch, but that Chanoch had promised not to reveal the name of the person who had brought them in. Waldstein ordered Chanoch arrested and brought before him with Teomim. Still, Chanoch refused to disclose who had delivered the curtains to him, saying that he could not violate his oath. Enraged, Waldstein ordered that Chanoch and Teomim should both be executed the following morning.

Chanoch saw that he had no choice, not for his own sake, but for Teomim he had to now disclose the name of Joseph Thein. He told Teomim the name of the man who had dropped off the curtains and freed him to disclose the name to Waldstein. This Teomim did, but Waldstein was not yet satisfied. He released Teomim but ordered him to bring Joseph Thein in by morning or else Chanoch would be executed and the community would be fined. Teomim consulted with Rabbi Isaiah Horowitz, known as the Sheloh, author of Shnei Luchot Habrit. Since there was no time to seek help from the Court Jew Bassevi, who was out of town, Horowitz advised Teomim to bring Joseph to Waldstein and hope for a miracle. When Teomim returned with Joseph, Waldstein ordered Josef arrested and put in jail with Chanoch. The next morning, Chanoch and Joseph were brought to Waldstein, who angrily released the elderly Chanoch but sentenced Joseph to be executed forthwith.

Chanoch returned back alone through the snowy streets to the community and told them what had happened. Hearing the news, Joseph Thein’s sister Mirl secretly approached her old friend Gadl Emmerich who had left the community, converted and become a priest. Gadl agreed to help by convincing Waldstein’s wife to implore her husband to commute Joseph’s sentence. Finally Waldstein relented and agreed to release Joseph Thein in exchanged for a large payment from the Jewish community.  To add insult to the injury, Waldstein ordered his soldiers to escort ten leaders of the Jewish community dragging the payment of silver coins in bags through the wintery streets of Prague to the city hall.

In the end the convert Gadl approached Rabbi Horowitz, repented and returned to Judaism.  To avoid capture, for converting back to Judaism was a capital offense, he faked his own death by dropping his coat in the river, and snuck off to Amsterdam, where he was later joined by Mirl.  Jacob Teomim’s daughter Zipora married Ascher, the son of the Court Jew Bassevi.  Rabbi Horowitz left for the holy land and died in Tiberias in 1630.

Before he died, the elderly Chanoch recorded this entire story in a megillah scroll that he commanded his descendants to read every year on 22 Tevet.  The story was translated into German by Mathias Kisch in the late 19th century and was well known enough to be included under the title Purim Fürhang (Curtain Purim) in the Jewish Encyclopedia in 1906.  Having re-discovered this old story, and the direct connection of my own family, I will be celebrating the Purim of the Curtains for the first time this year on December 30.

Purim of the Curtains (English)

Vorhang Purim (German/Deutsch)

Hebrew/Yiddish

Interior of the Altschul in Prague

Letter to Inspector General Horowitz

Dear Inspector General Michael Horowitz:           

I have written to you previously [a] [b] regarding your investigation of the actions of the FBI with respect to the search warrant obtained against Hillary Clinton on October 30, 2016.  In the course of my FOIA case before the U.S. District Court of the Central District of California to remove redactions from the search warrant affidavit, I came across several issues that I believe were not fully or properly addressed in your otherwise excellent report on the matter from June of this year.  I am writing you again today to share with you my observations.

The IG Report includes a full chapter on the drafting of the search warrant but unfortunately does not address the very problematic pretextual nature of the affidavit used to obtain the warrant.  IG Report, pp. 379-84.  You will recall that the stated purpose of the renewed investigation was to search for three months of e-mails from an earlier period that Director Comey believed might contain evidence of Clinton’s criminal intent[1] to violate the law with regard to classified information. IG Report, p. 373.[2] 

However, nowhere in the search warrant application executed by the Supervisory Special Agent is the true design of the warrant – the missing three months of e-mails from early in Clinton’s tenure – disclosed.  IG Report, p. 325, n. 178 (“Although Comey identified this fact as critical to his assessment of the potential significance of the emails on the Weiner laptop, the information was not included in the October search warrant application for the Weiner laptop.”). The brief probable cause portion of the search warrant affidavit is noticeably directed at something completely different, a “spill” of classified information to unauthorized devices.[3]  But, as you will recall from the IG Report, the FBI had already determined that it was not interested in conducting a “spill” investigation.[4]

The IG Report is conspicuously silent on the importance of the discrepancy between the alleged purpose of the renewed investigation and the affidavit in support of the search warrant.  As a result, the Report misses perhaps the most glaring problem with what transpired in the weeks before the 2016 election – the lack of probable cause for conducting the actual search authorized by Director Comey.  James Comey, A Higher Loyalty, p. 193 (“They told me those might well the missing emails from the start of Clinton’s time at the Department of State. The team said there was no prospect of getting Weiner’s consent to search the rest of the laptop, given the deep legal trouble he was in. ‘We would like your permission to seek a search warrant.’ Of course, I replied quickly. Go get a warrant.”).[5]

Nearly everyone quoted in the IG Report, with the possible exception of the Supervisory Special Agent who executed the affidavit for the search warrant, stated that they did not believe the laptop would contain evidence of any criminal activity.  See IG Report, pp.352-55.[6]  Nevertheless, it appears that not one of the individuals dared to inform Director Comey that they lacked probable cause for the search he had authorized.[7]

Inexplicably, rather than address the lack of probable cause for the search warrant, the Report actually criticizes the FBI for not moving ahead sooner: “We found the belief that the Weiner laptop was unlikely to contain significant evidence to be an insufficient justification for neglecting to take action on the Weiner laptop immediately after September 29.” IG Report, p. 327.  This makes absolutely no sense.  Since when is it “unjustified” to decide not to obtain a search warrant to look for non-existent evidence that no one believes is there? The IG’s criticism of the FBI’s inaction assumes that there was probable cause for the search, but it is clear from all of the evidence that there was insufficient probable cause. In the end, the search warrant could only be obtained under the false and misleading pretext that the FBI was conducting a spill operation.

Further, the IG Report briefly describes the ultimate review of the emails on the Weiner laptop, but fails to mention that absolutely no emails were found from the early three-month time period that Comey and the others believed might be important. Compare IG Report, pp. 388-89; Comey, Higher Loyalty, p. 202 (“There were indeed thousands of new Clinton emails from the BlackBerry domain, but none from the relevant time period.”). In fact, as anyone with even a limited knowledge of the case would expect, all 13 of the classified email chains that were found on the laptop were duplicates of those already reviewed previously. IG Report, p. 389.

Perhaps the drafters of the IG Report were not technically proficient enough to ask the crucial question — when did the FBI agents and technicians reviewing the emails learn that absolutely no emails from the sought-after three-month time frame were on the laptop? No doubt that fact could have been discovered almost immediately, and if it was, then what exactly was the FBI looking for over the course of the ensuing week, while the upcoming election hung in the balance? Or were they simply stalling to cover for the fact that they had made a huge blunder? The IG Report is silent on these very significant questions.

                                                                        Very truly yours,

                                                                        E. RANDOL SCHOENBERG


[1] We feel compelled to add here that no one has ever explained what exactly such a hypothetical e-mail would say, why anyone would believe that Secretary Clinton would ever draft such an e-mail, or, most importantly, why the presence of such an e-mail would help prove a violation of 18 U.S.C. § 793(e) or (f), given all of the other facts developed in this investigation (notably the absence of any transmission or delivery of classified information to unauthorized recipients or the removal of such classified information by third parties). Note that the term “mishandling” appears nowhere in the criminal statutes, and that communicating by e-mail does not “remove” anything.

[2] IG Report, p. 373.   “Comey told us that the potentially great evidentiary significance of the newly discovered emails would have made it particularly misleading to stay silent. But we found that the FBI’s basis for believing, as of October 28, that the contents of the Weiner laptop would be significant to the Clinton email investigation was overestimated. Comey and others stated that they believed the Weiner laptop might contain the ‘missing three months’ of Clinton’s e-mails from the beginning of her tenure when she used a BlackBerry domain, and that these ‘golden emails’ would be particularly probative of intent, because they were close in time to when she set up her server. However, at the time of the October 28 letter, the FBI had limited information about the Blackberry data that was on the laptop. The case agent assigned to the Weiner investigation stated only that he saw at least one BlackBerry PIN message between Clinton and Abedin. As of October 28, no one with any knowledge of the Midyear investigation had viewed a single email message, and the Midyear team was uncertain they would even be able to establish sufficient probable cause to obtain a search warrant.”

[3]  26. Given the information indicating that there are thousands of Abedin’s emails located on the Subject Laptop — including emails, during and around Abedin’s tenure at the State Department, from Abedin’s @clintonemail.com account as well as a Yahoo! Account appearing to belong to Abedin — and the regular email correspondence between Abedin and Clinton, there is probable cause to believe that the Subject Laptop contains correspondence between Abedin and Clinton during their time at the State Department. Because it has been determined by relevant original classification authorities that many emails were exchanged between Abedin, using her @clintonemail.com and/or Yahoo! Accounts, and Clinton that contain classified information, there is also probable cause to believe that the correspondence between them located on the Subject Laptop contains classified information which was produced by and is owned by the U.S. Government. The Subject Laptop was never authorized for the storage or transmission of classified or national defense information.

27. A complete forensic analysis and review of the Subject Laptop will also allow the FBI to determine if there is any evidence of computer intrusions into the Subject Laptop, and to determine if classified information was accessed by unauthorized users or transferred to any other unauthorized systems.

[4] IG Report, p. 55 (“the Midyear team did not seek to obtain every device or the contents of every email account that it had reason to believe a classified email traversed.”); p. 93 (“Strzok further stated that the FBI’s ‘purpose and mission’ was not to pursue ‘spilled [classified] information to the ends of the earth’ and that the task of cleaning up classified spills by State Department employees was referred back to the State Department. He told us that the FBI’s focus was whether there was a ‘violation of federal law. Prosecutors 1 and 2 similarly told us that the Department was not conducting a spill investigation, and that the State Department was the better entity for that role. ‘At a certain point, you have to decide what’s your criminal investigation, and what is like a spill investigation…. [W]e could spend like a decade tracking emails…wherever they went.’ The SSA told us that the Midyear team engaged in several conversations, and the State Department officials expressed concern about the problem and were receptive to resolving it. Generally the witnesses told us that they could not remember anyone within the team arguing that more should have been done to obtain the senior aides’ devices.”); p. 167 (“[T]he picture that was fairly clear at that point [was] that Hillary Clinton had used a private email…to conduct her State Department business. And in the course of conduct [of] her State Department business, she discussed classified topics on eight occasions, dozens of occasions, and there was no indication that we had found that she knew that was improper, unlawful, that someone had said don’t do that, that will violate 18 U.S.C. [the federal criminal code], but that there was no evidence of intent and it’s looking, despite the fact of the prominence of it, like an unusual, but in a way fairly typical spill and that there was no fricking way that the Department of Justice in a million years was going to prosecute that.”); p. 374, n. 187 (“In his book, Comey stated, with respect to the July declination, that ‘[n]o fair-minded person with any experience in the counterespionage world (where “spills” of classified information are investigated and prosecuted) could think this was a case the career prosecutors at the Department of Justice might pursue. There was literally zero chance of that.’”).

[5] At this fateful meeting, there appears to have been absolutely no discussion of whether there was probable cause to seek a warrant. Most likely this critical omission was because, at the outset of the meeting, Andrew McCabe and his counsel Lisa Page were excluded and removed from the meeting as fall-out from an October 24, 2016 Wall Street Journal article raising spurious claims of a conflict of interest because McCabe’s wife had once run for state office and received support from the governor of Virginia Terry McAuliffe, a friend of Hillary Clinton.

[6] IG Report, p. 352-54, report of interviews with lead DOJ prosecutor David Laufman, Prosecutor 1 and Prosecutor 2:

We asked Laufman what he meant when he said there was a ‘low expectation’ that this evidence would alter the outcome of the Midyear investigation. Laufman stated:

“[W]e had seen through our investigation, the types of emails that Huma Abedin had been party to. And they were just not the kinds of emails that really went to the core issues that were under legal analysis, meaning they had to do with sort of scheduling, and…I mean, as important as she is in a personal, confidential assistant manner to the former Secretary, she wasn’t as substantively engaged in, in some matters that would have occasioned access to classified information or dealing with classified issues. So…we had seen quite a bit up to that point. And with respect to her, we hadn’t seen her engaged via email with anybody on the types of things that were material to our legal analysis. So, assuming that what was going to be reviewed from this new dataset was consistent with that, it seemed improbable to us that it was going to, to change anything. And of course as we know now, it was a giant nothing-burger.”

Prosecutor 1 stated that the notification to Congress “didn’t make any sense.” Prosecutor 1 told us that given Abedin’s role and the evidence they had previously reviewed there was little “likelihood of finding anything of import in there.” Instead of doing a public announcement, Prosecutor 1 stated, “We should just investigate it and do it as quickly as we could.” We asked Prosecutor 1 about the potential presence of BlackBerry emails from early in Clinton’s tenure.

Prosecutor 1 stated that the FBI mentioned that “there could be information that covered that BlackBerry period from the period at the front end of the tenure,” but added:

“I felt like a lot of the analysis was based upon what, what could be in there and the opportunity cost of sort of missing out on that. Of course, to me that’s a different analysis than making an announcement about it. We didn’t want to be seen to be in favor of forgoing the effort entirely.”

Prosecutor 1 stated that the FBI seemed “very concerned about transparency with the public” and “had already kind of decided what they were going to do” prior to consulting with the Department.

Prosecutor 2 told us that the Department was “shocked” that the FBI was even considering notifying Congress about this development. Prosecutor 2 said that she did not necessarily view the Weiner laptop as a significant development in the Midyear investigation. Prosecutor 2 stated:

“Because over the course of this investigation, we haven’t sought out personal devices of anybody other than Hillary Clinton. So we haven’t asked, for example, for like Huma’s personal laptops, her personal BlackBerries. We have her state.gov stuff, but that’s like, that of Huma’s is all we’ve searched.

So, there’s a threshold question in my mind of whether, like, this is even something that needs to be searched. And based on the, the iffyness on that threshold question, and then the likely significance of this device, it seems totally nuts to me that they would make an announcement having no idea what is on this device, having not looked at it. And in, and in terms of like the impact that this announcement could have.

And I remember being on the phone call like, how are you, asking like how on earth are you going to word this announcement so it’s accurate and doesn’t, doesn’t like, you know, open a much bigger can of worms than is really the significance of this recent finding. I mean at this point…we have no idea…. We just know that like some of Huma’s emails are in FBI’s custody. Like, of course Huma has other emails. Like, how is this a game changer?”

Prosecutor 2 also told us that she believed the FBI would not listen to any of the arguments they put forth. She stated, “[T]here’s a defeated feeling at this point that like [Strzok] was given the task of like pretend to DOJ that you’re hearing them out. And he was going to, you know, humor us by having this conference call, but like that nothing we said mattered on that call.”

[7] If there is one as-yet unnoticed undercurrent or subtext in all of the released information concerning the FBI’s investigation of Secretary Clinton, it is the apparent unwillingness of the male FBI leadership and agents to heed the warnings of their female colleagues, and the apparent understanding of these female colleagues that their views would not be followed by the men. See, e.g, IG Report, p. 377, (Attorney General Loretta Lynch and Deputy Attorney General Sally Yates were afraid to speak directly to Comey because he didn’t consult with them) (“We acknowledge that Comey, Lynch, and Yates faced difficult choices in late October 2016. However, we found it extraordinary that Comey assessed that it was best that the FBI Director not speak directly with the Attorney General and Deputy Attorney General about how to best navigate this most important decision and mitigate the resulting harms, and that Comey’s decision resulted in the Attorney General and Deputy Attorney General concluding that it would be counterproductive to speak directly with the FBI Director.”); IG Report, p. 340-42 (FBI Deputy Counsel Trisha Anderson and FBI Attorney 1 try unsuccessfully to remind Comey and FBI General Counsel Jim Baker that they were about to interfere in the election) (“I gather he [Baker] thought she [Anderson] might not raise it. So at our next family discussion that evening, he said let me ask you a contrarian question. You know how do you think about this? And then I think she spoke herself and said, how do you think about the fact that you might be helping elect Donald Trump? And I said, I cannot consider that at all.”) (“Baker told us that he asked Anderson if she wanted to bring this up with Comey, but Baker stated that ‘she was reticent’ to do so.”); text message from FBI attorney Lisa Page to FBI agent Peter Strzok on October 27, 2016 (FBI Attorney Lisa Page tries to remind FBI Agent Lead Peter Strzok that they cannot search the laptop without probable cause) (“completely INFURIATED [ ] with [FBI general counsel] Jim [Baker]…. Please, let’s figure out what it is we HAVE first. What if we can’t make out PC [probable cause]? Then we have no further investigate step.”).

Vespertine

Vespertine is a restaurant in Culver City, CA. It has only been open for about two years. Known as one of the best restaurants in Los Angeles, I expected nothing less than perfection. That is exactly what I got. Vespertine isn’t a normal restaurant, it’s an experience. From the moment you drive up, it will amaze you. The architect Eric Owen Moss created a beautiful work of art to house one of the best restaurants in Los Angeles. The building is four stories. After you drive up, the valet takes your car, and you are brought to the garden for some birch juice until your table is ready. When they are ready for you, a waiter will escort you directly up to the second floor where executive chef, Jordan Kahn, is waiting. He greets you and asks if there are any dietary restrictions that he should know about. If there are any restrictions, he will quickly take that into account and prepare something you can eat. After meeting Kahn someone will take you up to the roof to enjoy your first four courses. If you are cold, there is a blanket right next to you on the couch. The roof has a remarkable view of the Hollywood sign and all of Culver City. The first four courses are finger food (snacks), one after the other. Kahn takes dishes that could be considered simple and adds his own unique flair to the dish, for example the “chips and dip”. Using kelp as a different type of chip is their way of elevating the dish. At Vespertine you will find yourself eating more flowers than you could imagine. Kahn uses ingredients that are supposed to be sweet or savory then flips the flavors, and it tastes better than before. For example, sunchokes are normally supposed to be savory, but by caramelizing them it adds a new depth of flavor. This is not an easy task, but they do a really good job. When you are finished with your finger food someone will take you to floor one (the dining room), where you will finish most of your meal. I had wished the dishes were spaced out a little bit more, but the food was like nothing I’ve ever seen before. Kahn uses ingredients that are rarely used in a restaurant. He combines them with a simple ingredient that when put together tastes so different from the food you usually eat. He plays with different flavors and textures. Vespertine isn’t all about the food. They incorporate their environment into everything they do. The entire structure is surrounded by glass so you can always see outside. Vespertine adds mystery into some of their dishes, making it so you don’t know what you are eating until you start eating. Sometimes you may need a flashlight to see inside the bowl. For the last part of the meal a waiter will take you to the lobby for a digestive snack and tea on what appears to be a table hung by wires in the air. This was the perfect ending to a perfect night. HIGHLY RECOMMEND!!

First Course: (Chips and Dip) Giant Kelp and Chickpea 
Second Course: Burnt onion and Black Currant cookie

Third Course: Artichoke, Poppy Seeds and Chamomile (No picture) 

Fourth Course: Milk bread and Abalone Mushrooms
Fifth Course: Concord grapes, Horseradish and Tradescantia
Sixth Course: Trout Roe, Almond and Radish
Seventh Course: Puffed Quinoa, Amberjack, Salted Plum and Burnt Onion
Eighth Course: Sweetbreads, Rose and Begonia 
Ninth Course: Young Potatoes, Wheatgrass 
Tenth Course: Sunchokes, Lovage and Brown Butter
Eleventh Course: Roasted Beets, Black Bantam, Black Trumpet, Quince Vinegar and Snap Peas
 Twelfth Course: Kiwi, Spruce, Black Raspberries, Meadowsweet and Black Carrots 
Thirteenth Course: Almond, Cucumber and Redwood
Fourteenth Course: Caramelized Sunchokes and Candy Cap
Fifteenth Course: Organic Sweet Pears

Wishful Thinking and Reasonable Doubt

In German, the phrase used for wishful thinking is Der Wunsch ist Vater des Gedankens, which translates as “the wish is father of the idea.”  I like that construction because I think it says a lot about how we decide what we believe.

This week’s testimony by Dr. Christine Blasey-Ford and Judge Brett Kavanaugh before the U.S. Senate Judiciary Committee has the entire country talking about sexual assault and alcohol use, but also about more abstract issues of memory and evidence and proof.  Understandably, given the political setting, the debate has divided cleanly along partisan lines, but in doing so, it has sometimes placed people in unfamiliar territory on some of the more broad themes.  I include myself.

I am generally very defense-oriented, and a firm believer in giving accused defendants the benefit of reasonable doubt. Forcing the state to overcome a high burden of proof undoubtedly leaves many crimes un-prosecuted and allows many guilty defendants to avoid conviction, but it also feels to me a necessary barrier to avoid wrongful prosecution of the innocent.  It is the fair price we agree to pay when we give the state the authority to punish the guilty.

This willingness to entertain the possibility of reasonable doubt has led me to some unpopular decisions.  When I was a juror in a gang murder case back in 1994, we deliberated for less than an hour before taking our first vote, 11-1 for guilty.  Guess who the holdout was?  After three days, about half the jurors ended up agreeing with me but the jury was hung.  The defendant was retried and convicted and twenty-four years later he is still in prison.  It bothers me to this day, especially because I am convinced not only that the state had not met its burden of proof, but that the defendant was actually innocent of the charges against him.  As I wrote a few years ago when referring the case to the Innocence Project:

He should have been found not guilty, but we hung.  Instead he was re-tried and sentenced to 35 years to life.  The prosecution used all of the exculpatory evidence against him by ridiculous “expert” testimony.  So, for example, the fact that just minutes after the murder he was apprehended separate and apart from the group of kids carrying the murder weapon was “proof” that he was guilty because gang members “always” hand off the gun to someone else to evade prosecution.  The fact that he had no gunshot residue on him was proof of his guilt, because gang members know how to wipe off residue to make it seem like they are innocent.  The fact that his prints were not on the gun was proof that he was guilty because gang members know to wipe off the gun to avoid fingerprinting. The fact that the main eyewitness at first did not identify him as the shooter, and only changed his testimony upon re-questioning a day later, was proof that he was guilty, because the witness was obviously too intimidated and scared to identify him the first time.  Etc. Etc.  The truth almost certainly is the guy didn’t do it.  They later found the guys who had been running away with the murder weapon, but by that time the police (Rampart division, I think) had pinned the murder on [the defendant] and persuaded the witnesses to identify him, and so they just left it at that.  His girlfriend (mother of his 1 year old child) testified for him in the first trial, but didn’t the second time because in the meantime they had prosecuted her for jury tampering for supposedly approaching a juror on my panel and telling her that he was innocent and they knew who did it.

Do I know for sure that the defendant wasn’t the one who shot the victim in his stomach with a shotgun when he refused to hand over his wallet?  No, I don’t.  But it didn’t seem very likely to me.  Could he have been another one of the kids who surrounded the victim and therefore been guilty of aiding and abetting the crime?  Absolutely yes, and I might have even convicted him of that had the prosecutors bothered even to charge him with aiding and abetting, which they did not, probably because the detectives had gotten the main eye-witness, who had been robbed by the gang a minute earlier, to change his story and say that the defendant was the one with the shotgun.

So I am a bleeding heart liberal.  Ok then, here’s another one.  I was never convinced that George Zimmerman was guilty of murdering Treyvon Martin.  Martin was the poor kid just returning from a convenience store, who got killed by Zimmerman, a vigilante patrolling his neighborhood.  Why did I have reasonable doubts that Zimmerman was guilty?  Because there was good evidence that Martin had been beating up Zimmerman before he was shot.  Quoting from the summary on Wikipedia, which comports with what I recall. “The police officers observed that Zimmerman’s back was wet and covered with grass, and he was bleeding from the nose and the back of his head. . . . The only eyewitness to the end of the confrontation stated that Martin was on top of Zimmerman and punching him, while Zimmerman was yelling for help. This witness stated that “the guy on the bottom, who had a red sweater on, was yelling to me, ‘Help! Help!’ and I told him to stop, and I was calling 911.”  Zimmerman may have provoked the altercation, but Martin’s friend, who was on the phone with him at the time it began, stated that it was Martin who first  said to Zimmerman “What are you following me for?”  The witness testimony and the observed injuries makes it hard for me to conclude beyond any reasonable doubt that Zimmerman could not use the defense of self-defense.

Ok, so my bleeding heart always goes in favor of the defendant no matter who he is.  So, what do I think about Judge Kavanaugh?  Here was my initial response on Facebook:

I believe Kavanaugh is lying. He is lying to himself and to us about who he was and is. It is 100% believable that Dr. Ford attended one of those small gatherings with his beer-drinking buddies that Kavanaugh recorded on his calendar (July 1 and August 7 seem the most likely candidates). It is perfectly believable that she was there and left early after an incident. It is absolutely believable that Kavanaugh and Judge might have rough-housed and acted out an attempted rape with her while she was at the party. (I can remain agnostic on whether they intended to go through with it if they had not been interrupted.) And it is certainly believable that for Kavanaugh and Judge the party went on and no part of the evening was memorable to him. Finally, it is absolutely believable that Ford would have remembered the event and been traumatized as she was.

What is also 100% certain is that Kavanaugh is purposely lying about the state of the evidence, which he as a judge knows perfectly well how to assess. It is absolutely NOT true, as Kavanaugh claimed over and over again, that “all four of the witnesses said it did not happen.” Saying they have no recollection is NOT the same, as Kavanaugh certainly knows, as saying that something did not happen.

Asking if Kavanaugh remembers not remembering something after drinking, as so many Senators tried to do, is stupid. What they should have asked is what he remembers of those parties and if it is possible — possible! — that he might not today remember something that happened that was absolutely untraumatic for him.

Kavanaugh is most likely purposely lying about the meaning of his yearbook page (Boof, Renate Alumnius, Devil’s Triangle, FFFF, etc.), and it was notable that he would not readily admit that his calendar note about “skis” meant beers (as in the slang term brewskis).

It is Kavanaugh’s CURRENT lying, to himself and to us, that should bother people about his nomination (beyond all of the rest of the political implications of his judicial views).

If I were a Senator, I would very easily vote no on his confirmation. This is not what we want in a Supreme Court Justice (nor in a President).

[For a more thorough discussion of Kavanaugh’s lies and dissembling during his testimony see this excellent article by Nathan J. Robinson in Current Affairs.]  As I began reading the comments of others, I noticed that many Kavanaugh supporters were arguing that he was innocent or should be presumed innocent, or that the evidence was insufficient to find that he had assaulted Dr. Blasey-Ford.  I hadn’t focused so much on the issue of innocence or guilt because, after all, this is not a criminal trial but rather a confirmation proceeding.  What matters is not his past, but his present character.  Guilt beyond a reasonable doubt really shouldn’t be an issue at all.  But of course it is.  And then I started thinking about whether the evidence so far would be sufficient to convict Judge Kavanaugh of a sexual assault against Dr. Blasey-Ford.  I think it would.

I have heard people say there is “no evidence” to prove that she was assaulted.  That is simply false, because of course testimonial evidence is evidence.  Here is the California jury instruction on direct and indirect evidence:

Evidence can come in many forms. It can be testimony about what someone saw or heard or smelled. It can be an exhibit admitted into evidence. It can be someone’s opinion. Direct evidence can prove a fact by itself. For example, if a witness testifies she saw a jet plane flying across the sky, that testimony is direct evidence that a plane few across the sky. Some evidence proves a fact indirectly. For example, a witness testifies that he saw only the white trail that jet planes often leave. This indirect evidence is sometimes referred to as “circumstantial evidence.” In either instance, the witness’s testimony is evidence that a jet plane few across the sky. As far as the law is concerned, it makes no difference whether evidence is direct or indirect. You may choose to believe or disbelieve either kind. Whether it is direct or indirect, you should give every piece of evidence whatever weight you think it deserves.

Dr. Blasey-Ford gave testimony that would clearly be sufficient to prove a sexual assault.

In the summer of 1982, like most summers, I spent most every day at the Columbia Country Club in Chevy Chase, Maryland, swimming and practicing diving.  One evening that summer, after a day of diving at the club, I attended a small gathering at a house in the Bethesda area. There were four boys I remember specifically being there: Brett Kavanaugh, Mark Judge, a boy named P.J., and one other boy whose name I cannot recall. I also remember my friend Leland attending.  I do not remember all of the details of how that gathering came together, but like many that summer, it was almost surely a spur-of-the-moment gathering.  I truly wish I could be more helpful with more detailed answers to all of the questions that have and will be asked about how I got to the party and where it took place and so forth. I don’t have all the answers, and I don’t remember as much as I would like to.  But the details that — about that night that bring me here today are the ones I will never forget. They have been seared into my memory, and have haunted me episodically as an adult.

When I got to the small gathering, people were drinking beer in a small living room/family room-type area on the first floor of the house. I drank one beer. Brett and Mark were visibly drunk.  Early in the evening, I went up a very narrow set of stairs leading from the living room to a second floor to use the restroom. When I got to the top of the stairs, I was pushed from behind into a bedroom across from the bathroom. I couldn’t see who pushed me. Brett and Mark came into the bedroom and locked the door behind them.  There was music playing in the bedroom. It was turned up louder by either Brett or Mark once we were in the room.

I was pushed onto the bed, and Brett got on top of me. He began running his hands over my body and grinding into me. I yelled, hoping that someone downstairs might hear me, and I tried to get away from him, but his weight was heavy.  Brett groped me and tried to take off my clothes. He had a hard time, because he was very inebriated, and because I was wearing a one-piece bathing suit underneath my clothing.  I believed he was going to rape me.

I tried to yell for help. When I did, Brett put his hand over my mouth to stop me from yelling. This is what terrified me the most, and has had the most lasting impact on my life. It was hard for me to breathe, and I thought that Brett was accidentally going to kill me.  Both Brett and Mark were drunkenly laughing during the attack. They seemed to be having a very good time.  Mark seemed ambivalent, at times urging Brett on and at times telling him to stop. A couple of times, I made eye contact with Mark and thought he might try to help me, but he did not.

During this assault, Mark came over and jumped on the bed twice while Brett was on top of me. And the last time that he did this, we toppled over and Brett was no longer on top of me. I was able to get up and run out of the room.  Directly across from the bedroom was a small bathroom. I ran inside the bathroom and locked the door. I waited until I heard Brett and Mark leave the bedroom, laughing and loudly walk down the narrow stairway, pinballing off the walls on the way down.  I waited, and when I did not hear them come back up the stairs, I left the bathroom, went down the same stairwell through the living room, and left the house.  I remember being on the street and feeling this enormous sense of relief that I had escaped that house and that Brett and Mark were not coming outside after me.

A conviction based on this testimony alone would never be reversed for insufficiency of the evidence.  There are thousands, perhaps millions of people in jail today based on no more convincing evidence than this.  So, the first question to ask yourself is, if you knew nothing more than this one statement, would you find that Judge Kavanaugh is guilty beyond a reasonable doubt?  If you find yourself saying no, you aren’t following the instructions.  How do I know?  Because I told you to assume you knew nothing other than her testimony.  In order to cast doubt, you need to look outside her testimony, to your own experience and to other things you know about the matter.  And here is where we get back to the original theme of this blog — wishful thinking.  Where your mind wanders, how hard it looks for a basis for doubting her testimony, is all about you.

This type of purposeful intentionality is inherent whenever we weigh evidence, and it is why I was very disappointed with Judge Kavanaugh’s initial Senate testimony before the present controversy.  Perhaps he was the only student at Yale Law School who didn’t receive the notoriously theoretical training that Yale was best known for at that time, or perhaps he had a few too many beers along the way, but as a person who has been a judge for twelve years on the U.S. Circuit Court for the District of Columbia, he certainly must know that judges do more than just “call balls and strikes,” as Chief Justice John Roberts famously said at his 2005 confirmation hearing.  (Kavanaugh said: “A good judge must be an umpire, a neutral and impartial arbiter who favors no litigant or policy.”)  Investigating, assembling, arguing and deciding legal and factual issues all require creativity and ideas, and, as the German saying goes, the father of those ideas is the wish, the result you want to achieve.  When you have no real desire for one or the other side to win, it is easy to think of judging as just calling balls and strikes (although also baseball umpiring is more complicated than it may seem). But when you are deciding issues where you really do care about the result, it is not so easy to make sure that your wish is not controlling the way your mind is working.  You have to try to sublimate that wish to another wish (for example, a commitment to stare decisis).

Back now to the evidence against Judge Kavanaugh.  We started with her testimony, which by itself is sufficient for a conviction.  The next question is whether there is any contrary evidence, or any other reason to doubt her testimony.  In a criminal case, the proof standard is explained as follows in a California jury instruction:

Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt.

Many arguments have been made against Dr. Blasey-Ford’s allegation, but they all can be judged by this reasonable doubt standard.  Reasonable doubt is not just any possible doubt.  Anyone can come up with possible scenarios.  You have to have a reason to believe the scenario is true.

Having already dispensed with the “no evidence” argument, here are a  few of the others.  Whether or not you even consider these arguments is already an example of “wishful thinking,” and I admit that some of them did not occur to me, notwithstanding my defense-oriented bias, perhaps because my dislike of Kavanaugh’s political and judicial views made me less inclined to want to find them.

  • Judge Kavanaugh has a “sterling record of public service.”  It is true that Judge Kavanaugh is incredibly accomplished. An excellent student at top schools, clerkship, government service, over a decade on the court of appeals.  On paper, he is absolutely a good candidate for the Supreme Court.  Of course, he has not avoided all controversy, whether as a member of the Kenneth Starr Special Counsel investigating President Clinton or as a member of the Bush Administration.  At his initial conformation hearing, there were already allegations that he had lied previously about receiving stolen democratic strategy memos. But leaving those aside, his record is strong.  Does this make it less likely that the allegations are true?  That is a different question.  Kavanaugh certainly wouldn’t be the first person in a prominent position to be brought down by a shocking revelation of past improprieties.  It would be hard to say that this factor alone would raise reasonable doubts about the veracity of Dr. Blasey-Ford’s allegation.
  • No one else has ever accused him.  While perhaps true before Dr. Blasey-Ford’s accusation was public, it is no longer true.  At least two others have now accused Judge Kavanaugh of sexual assault.  I can agree that the number of accusations against a person does have an impact on how we view an accusation.  I don’t have any scientific evidence, but it does feel right that people who do wrong things continue to do them.  But this argument isn’t as helpful as it seems.  Someone has to be the first to make a public accusation.  Then you need to wait to see how many others come forward.  There needs to be more time to investigate.  That process has hardly begun and it is unclear if the FBI or journalists will be looking to interview others who might have had similar experiences. Time will tell, but it is still very early. I would say it is far too early to say that there is reasonable doubt about Dr. Blasey-Ford’s accusation merely because she is the first to go public.
  • She waited too long to tell anyone.  This argument is an interesting one, but I think it may be a bit too early to judge it.  Dr. Blasey-Ford hasn’t said that she told no one about the event.  She said she did tell a few friend and her husband.  Her friend at the time Leland Ingham Keyser had her lawyer submit a statement saying “Simply put, Ms. Keyser does not know Mr. Kavanaugh and she has no recollection of ever being at a party or gathering where he was present, with, or without, Dr. Ford.”  We’ll have to see if anyone else remembers Blasey-Ford talking about the attack or identifying her attacker.  Apparently she did tell her therapist about the attack six years ago, at least that is what has been alleged.  But does the length of time before speaking out make her allegation less reliable? It is quite common, perhaps even more common, for people to keep secret an incident of sexual assault.  As a result, one could even make the argument that Dr. Blasey-Ford’s allegation is more reliable because she waited so long.  The fact that the length of time argument can cut both ways makes it a poor one to rely on in deciding whether there is reasonable doubt.  Certainly there are a number of examples of belated accusations being believed despite the delay.  Bill Cosby was recently sent to prison as a result of previously unreported assaults from 2004. The timing factor alone cannot answer whether the accusations can be believed beyond a reasonable doubt.  You might ask yourself, having initially kept the attack from her parents for fear of being punished for going to the party in the first place, what incentive would Dr. Blasey-Ford have had to later tell the story or identify her attacker?  It may not help her accusation that there are no more contemporaneous reports of the attack, but acting in a normal and reasonable way should not make her later revelation unreasonable.
  • No one else can confirm her story.  Again this is something that is true with many sexual assault allegations.  Based on her story, what type of confirmation would you expect to have?  From whom did you want confirmation?  Her attackers?  Really, this is a variation on the “she didn’t tell anyone soon enough” argument.
  • There is no corroborating evidence.  This one is really not true.  Amazingly, Judge Kavanaugh produced a calendar from 1982.  Actually it is more of a diary.  Kavanaugh recorded events, even parties, often after the fact.  At least one of the parties, on Thursday, July 1, 1982, is memorialized with the note: “Go to Timmy’s for skis w/ Judge, Tom, PJ, Bernie, Squi.”  This note appears to refer to a small beer (ski = “brewski”) party with a few of Kavanaugh’s friends, two of whom (Mark Judge and PJ) were also identified by Blasey-Ford as potential witnesses before Kavanaugh’s diary became public.  Another party on Saturday August 7 says “Go to Becky’s, Matt, Denise, Laurie, Jenny Hail.”  So it is obviously true that Kavanaugh and his friends occasionally got together that summer in smaller parties like the one Blasey-Ford described.  Kavanaugh himself has admitted that he often drank beer with his friends. (“Yes, we drank beer. My friends and I, the boys and girls. Yes, we drank beer. I liked beer. Still like beer. We drank beer.”)  The calendar certainly does corroborate certain aspects of the story, and may even document the party in question.
  • The other witnesses deny that it happened. Again, this one is not true.  Yes, the two accused assaulters, Kavanaugh and Mark Judge have both denied attacking Blasey-Ford, which is certainly not at all unusual.  But Kavanaugh mischaracterized the evidence from the other witnesses during his testimony.  Leland Keyser’s attorney’s statement simply said she did not remember and does not know Kavanaugh.  That she did not remember anything is hardly remarkable.  Blasey-Ford did not say Keyser had witnessed the attack, only that she had been at the party.  (“Oh no, she didn’t know about the event. She was downstairs during the event and I did not share it with her.”) The statement that she does not know Kavanaugh means only that she doesn’t know him now, not that she never attended a party with him when she was a teenager.  Kavanaugh himself admitted as much. (“I — I know of her. And it — it’s possible I, you know, saw — met her in high school at some point at some event. Yes, I know — I know of her and, again, I don’t want to rule out having crossed paths with her in high school.”)  PJ Smyth’s response was similarly non-committal.  (“I am issuing this statement today to make it clear to all involved that I have no knowledge of the party in question; nor do I have any knowledge of the allegations of improper conduct she has leveled against Brett Kavanaugh.”)  The truth is that it would be absolutely remarkable if any of the other attendees, including Kavanaugh and Judge, remembered that party or the attack on Blasey-Ford.  The incident Blasey-Ford described was a very brief encounter.  It was likely not at all memorable to Kavanaugh and Judge, who were allegedly inebriated at the time.  None of the other attendees at the party were even made aware of the attack. There is no reason to believe any of the other attendees would have any recollection at all of a small high school party thirty-six years ago.  Given the circumstances, I would view with great suspicion any witness who would do anything other than say they don’t recall.
  • She doesn’t remember when and where it happened.  True, she cannot remember where exactly the attack occurred, nor on what date it occurred.  That she cannot remember the date seems unremarkable.  I can remember a few infamous parties from high school, but could not begin to remember the date.  On the other hand, I do remember the location of some of those parties, the ones where I knew the person who lived in the home.  (For example, the infamous party at the Familian house on Stone Canyon in Bel Air, or a party at Ben Peck’s house in Pasadena or San Marino with an enormous dance hall.)  I cannot remember the location of the parties where I did not know the person whose home it was.  (For example, the afterparty for the Marlborough prom, the first time I became drunk and the first time I kissed a girl.)  That she cannot remember the location might mean only that she did not know the person whose house it was.  This is consistent with the contention of Judge Kavanaugh that Blasey-Ford was not part of his immediate social circle, and would explain why they never ran into each other again afterwards.
  • People make up allegations, especially against famous people.  This seems to be true.  The issue is whether the mere fact that an allegation is made against a famous person is a reason to harbor reasonable doubt.  In that sense, the argument is similar to the first argument about Kavanaugh’s “sterling record.”  There are also numerous instances of allegations against famous people that are found to be true.  One key fact here is when Blasey-Ford first complained.  If it is true, as the notes from her therapist and the statement of her husband suggest, that she first made the allegations six years ago, when Kavanaugh was just a Circuit Court judge, that certainly bolsters her credibility.  Further, if it is true that she first reached out to the Senate and the Washington Post when Kavanaugh was mentioned as a possible nominee, but before the actual nomination, that also would be inconsistent with someone who simply made up a story about a famous person.  Prior to the actual nomination, Kavanaugh was hardly a household name.
  • The Democrats are out to get him.  This is certainly true, but not necessarily relevant to assessing the credibility of Blasey-Ford’s allegation, which seems to have been made independent of any organized opposition to Donald Trump and the Republican party.  Senator Lindsay Graham’s finger-pointing fulminations against Democrats at the hearing were an obvious case of projecting from his own self-loathing. Does he really feel so virtuous for voting in favor of Justice Sotomayor in 2009 when the Republicans held just 40 seats in the Senate and had no way to stop her?  Or Justice Kagan in 2010 when they had just 41?  Were either of them accused of sexual assault or any other improprieties?  Yes, Democrats do not want Kavanaugh on the Supreme Court.  But Republicans didn’t want Merrick Garland on the Supreme Court.  If anything broke the famed collegiality of the Senate, it was the unprecedented decision of the entire Republican majority to stand by and support Mitch McConnell’s decision to block Garland’s nomination by refusing to even entertain it.  If Senator Graham wants to blame someone for a lack of bipartisanship, he should look in the mirror.  But in my view partisanship is merely honesty.  What is dishonest is pretending that you are non-partisan, for denying that the wish is the father of the idea.  As for this case, the facts are that  Blasey-Ford repeatedly contacted and then spoke with her congresswoman Anna Eshoo before sending a letter to Senator Dianne Feinstein on July 30, 2018.  Absent some evidence that the allegations were not her own, or that Eshoo or her staff encouraged Blasey-Ford to embellish them, this argument seems to be more of a paranoid fantasy than an argument about reasonable doubt.  There would have to be some more evidence of collusion before this argument could be considered.  Blasey-Ford’s testimony gave no indication that it was manufactured by any third party. 
  • Someone leaked her allegation just to stop his confirmation.  This may be true, but it is not an argument against the veracity of her claim, especially since there is no indication that Blasey-Ford, who had requested confidentiality, was the one who leaked them.  If the allegations had been leaked only after the Senate approved Kavanaugh, would that make a difference?  I don’t think so.  I find it interesting that those who are so ready to believe Kavanaugh’s denials have such a hard time believing Senator Feinstein’s statement that she and her staff did not leak the information.  (The Intercept reporter who broke the story, Ryan Glim, confirmed that Feinstein and her staff did not leak to him.)  It makes perfect sense to me that Senator Feinstein would keep the woman’s allegations a secret after being told that Blasey-Ford did not want to come forward publicly.  If she had done otherwise, she could have been correctly criticized for breaking confidentiality.  She could not have known in advance that Blasey-Ford would agree to come forward after the story broke, or that she would be such an excellent witness in her testimony.  Whoever is responsible, it seems likely that the leak was motivated by a desire to keep Kavanaugh off the court, but there again the timing makes sense because the leaker would have wanted to wait to see if perhaps something else first derailed the nomination.  In any case, don’t kill the messenger.  It’s the message we are assessing, not who first told us about it.
  • Senator Feinstein recommended her lawyer.  Apparently one of the lawyers, Debra Katz, was recommended by Feinstein’s office.  She is clearly an opponent of President Trump and the Republican party.  I suppose some people might find the allegations less credible because they don’t like Blasey-Ford’s attorney, but that would only reflect their own bias, not an objective evaluation of the evidence.
  • Dr. Blasey-Ford behaved badly in high school and college.  Again this may be true, but it is not clear to me how this is relevant to her allegations.  In fact, it seems to me more consistent with her admission that she attended a party with boys and drank beer at age 15 without her parents knowing.  She also testified that the incident left her with emotional problems, which is also consistent with later poor choices.  But besides the slut-shaming aspects of this argument, I don’t see how it makes her allegations any less convincing.  If demeanor at the Senate hearing is any indication, she has matured, arguably more than Kavanaugh has.
  • She flies on airplanes but says she is afraid of flying.  Faced with Kavanaugh’s numerous lies and half-truths, his supporters have grasped at straws to try to show that Blasey-Ford is untruthful.  She said she is afraid of  flying, yet she has flown on airplanes.  Ok.  That doesn’t seem too remarkable, nor does it seem to reflect poorly on her credibility.

I would characterize all of the arguments above as wishful thinking, an attempt to raise reasonable doubt from mere possible doubt.  Most of the points are equivocal at best.  If a witness said he saw a red mustang, would you find him less credible if I told you that most mustangs are black, not red?  If a fact or argument could be at the same time either consistent or inconsistent with the allegation, it really doesn’t have any bearing on credibility.

I might feel differently about the evidence produced so far if I were looking at it as a partisan for Judge Kavanaugh.  My mind would be actively searching for reasons to doubt Blasey-Ford’s account.  Otherwise unremarkable facts or potential discrepancies might loom large.  That is natural, I think.  It is how we all judge and make decisions.  But it doesn’t make those decisions correct.  I am having trouble finding any of the purported reasons to doubt her testimony to be at all relevant or persuasive.

Part of the discomfort with Blasey-Ford’s allegation is the fear that anyone could be falsely accused after a long period and be unable to disprove the allegations.  This is certainly true.  For this reason, we have statutes of limitations, which are the result of policy decisions that it is better to encourage people to come forward with claims in a timely fashion, even if it means that some truthful claims that are brought too late might go unheard.  Sometimes there is good reason not to have a limitations period or to extend it.  I don’t think I would have a problem if the law were to say that Blasey-Ford’s allegations are too late to be actionable, either in a criminal or civil case.  For me, it is not so much the truth of the allegations, but Kavanaugh’s response that is so unnerving.

I’ve seen Senator Jeff Flake say that Kavanaugh’s angry, rude and dissembling testimony is understandable, and that if he were unjustly accused, he might act the same way.  The problem with that argument is that the bad behavior also fits if the accusations are true.  As others have pointed out, there are numerous instances of famous people first issuing angry, convincing denials of allegations that later turned out to be true.  Indeed, Kavanaugh spent a good deal of his early career prosecuting President Clinton for just that type of offense.

Really there are only a few scenarios that are possible here: (1) It happened and Kavanaugh doesn’t remember; (2) it happened and Kavanaugh does remember; (3) it didn’t happen and Kavanaugh doesn’t remember; and (4) it didn’t happen and Kavanaugh does remember.

It happened and Kavanaugh doesn’t remember.  The first scenario seems to me the most likely scenario given the evidence so far.  She remembers because it was traumatic for her.  He doesn’t because it didn’t mean anything to him.  I can give a parallel example from my own experience.  When I was seventeen years old I qualified for the National Forensic League tournament in San Antonio, Texas.  Because my partner and I lost in the district semifinals in oxford two-man debate (another outrage story for another day) I had to try student congress, which I was able to win at the district level to qualify for nationals.  The  national tournament consisted of three days of student congress, held in a small classroom with about thirty other students.  To win an award, you had to do well all three days, which meant speaking as much as possible and impressing the judges.  One of the other contestants in my room was Neal Gorsuch from Georgetown Prep.  He was just sixteen but already an insufferable blow-hard, eager to impress with meaningless interjections of “points of personal privilege” and bragging references to his beltway connections.  I and the other ex-debaters in the event, some of whom I had known from tournaments and the summer Georgetown Debate Institute, saw him as ridiculous.  But the less worldly competitors, from smaller rural districts, thought he was just the cat’s meow.  On the second day of the competition, Gorsuch was elected the speaker, a position that did not allow him to make speeches, but gave him the gavel and the ability to choose who would speak.  I raised my hand the entire day, every time, and he never called on me to speak.  It was clearly on purpose.  I vaguely remember complaining near the end of the day, but the judges were inexperienced, and did not realize that what Gorsuch was doing was not permitted.  I ended the day without getting a chance to speak, meaning that I received zero points and was out of competition for an award, which was obviously what Gorsuch intended.  I returned to our hotel on the river walk and sulked.  I remember sitting at a table with my friend Brian Lee by the pool.  Up walked another boy who asked me if I was going to Princeton in the fall because he was too. I said yes and asked how he knew? “My friend Neal told me,” he said, pointing to Neal swimming in the pool.  My instant response: “Neal is the biggest asshole I have ever met.  If you are his friend, you must be one too and I don’t want to talk to you.”  The boy walked away and rejoined Neal in the pool, letting him know what just happened.  Can you guess how the story ends?  Well first, Neal won the tournament, rubbing salt into my wounds.  I remember only having the satisfaction of giving a scathing attack on Ronald Reagan’s “Star Wars” Strategic Defense Initiative on the third day where I pointed out that the other students didn’t even know where the word laser came from.  Two months later I got a call from one of my new roommates, Robert Glucksman. We talked for a while and I learned he was from Bethesda, and also had been at the nationals in San Antonio (in Lincoln-Douglas debate).  After I hung up I had a bad feeling in my stomach.  Could he have been the one?  Sure enough, I arrived at Princeton at the end of the summer (the day of the 1984 US Open finals — McEnroe over Lendl, which my dad  stayed in New York to see while my mom dropped me off) and there he was, my new bunkmate Rob, the one guy in the whole world I had told off without any good reason on the day that Neal Gorsuch cheated me out of the national tournament.  It turned out that Rob and I in fact did not get along well at all (having nothing to do with what happened at Nationals). But the story is one I have often retold. Thirty-four years later, I’d be happy to testify about it.  But I bet Neal Gorsuch, now sitting on the Supreme Court thanks to an eerily similar act of dishonesty by Senator Mitch McConnell, wouldn’t remember at all how he cheated against me to win.  As a coda, I can very well imagine how Blasey-Ford felt when she heard the name of her tormentor being discussed as a possible Supreme court pick.  When I heard on the radio that Gorsuch was the nominee, I was driving on the freeway on my way down to USC to teach my Art Law class.  I screamed at the top of my lungs.  At the very least, I know exactly what it feels like to learn that the Georgetown Prep teenager who wronged you in high school has been nominated to sit on the highest court in the land.  Blasey-Ford and I have that much in common.

I have to say that I also feel I have a lot in common with Judge Kavanaugh, or at least am very familiar with his type.  I also went to a small all-boys college prep high school (Harvard School) where football was a big deal.  (Luckily my debate partner was also an offensive lineman, so I was a bit protected.) Kavanaugh’s parents were a lawyer and judge.  Mine were a judge and a college professor.  Like Kavanaugh, I went to a top Ivy League (Princeton) school and then on to law school.  I’ve gone to school with more than my share of people like Kavanaugh.  I remember an incident at Princeton, the morning after the first Reagan-Mondale debates, which was objectively a disaster for Reagan.  I sat down with a couple of other students of the more, shall we say “athletic” persuasion, and began disparaging Reagan.  After a few exchanges one of them said “If you say another word, I am going to beat you up.”  That type of physical intimidation is a pretty typical experience for any boy who doesn’t have the build of a football player.  You learn to sit somewhere else.  Not to say that we intellectual types can’t also be cruel.  I remember joking that the hockey team wasn’t just on average the dumbest people at Princeton, they were in fact the twelve dumbest.  That’s not nice, and not  completely true. (Although I do believe, as Malcolm Gladwell has written, that Ivy league schools tend to make sure to populate each class with a good contingent of less academic and more athletic students, so that they don’t end up with a class where the bottom 20% are suicidal former valedictorians.  It’s nice for the psychology of the class to have people who can excel at other things besides academics, and not feel bad if their grades aren’t as good.)  But of course I never said that to anyone’s face.

Ok, back to Kavanaugh.  I hope people won’t take this the wrong way, but I consider myself to have come from a very privileged background, and at least to me, Kavanaugh doesn’t appear to be overly “privileged.”  It wouldn’t surprise me to learn that he was economically in the lower half of the students at Georgetown Prep and Yale.  To me, with his defensive “but I went to Yale” outbursts, he seems more like a sort of Gatsby type, a striver who is trying to fit in, a football player a bit too smart for his teammates, a prep school frat boy, not quite of the same class as his colleagues.  He doesn’t have the same cock-sure demeanor that comes with the type of over-privileged prep school kids who know that no matter how badly they fail, they will always succeed. This might explain his need to pretend he remembers everything he did in high school, even when he was drunk, and to lie about other smaller things like his yearbook page at the hearing.  He’s trying very hard to fit into a different crowd now.

It happened and Kavanaugh does remember. The second scenario is a worst case for Kavanaugh, but it seems highly unlikely to me that Kavanaugh would remember this episode.  I met a friend recently and was surprised when at first he said he didn’t remember the time he almost swallowed a beer cap playing the eponymous drinking game, and had to be taken to the hospital.  I had left the party early and did not witness it myself, but all of my friends were involved, and I am reminded of it every time I see him.  When I mentioned it recently, he at first had no recollection at all.  Obviously it was not something he had wanted to remember and so he had not revisited the episode as often as I did.  By the time I brought it up to him, he had pretty much forgotten it.  If someone can forget going to the hospital with a beer cap stuck in his throat, it seems unlikely that an aborted inebriated sexual assault would be remembered at all after thirty-six years.  There has obviously been a lot of water under the bridge for Kavanaugh since that time, and without any reason to remember the incident, the memory would have disappeared.

It didn’t happen and Kavanaugh doesn’t remember.  The third scenario is the one I might be more inclined to believe if Kavanaugh had behaved differently.  Unlike Senator Flake, I don’t think that Kavanaugh’s belligerent demeanor during the hearing was at all consistent with what I would expect of an innocent person wrongly accused who recognizes that he cannot possibly remember anything that might disprove the allegation.  Such a person might even feel sorry for the accuser, as Judge Kavanaugh’s daughter, believing he was innocent, obviously thought when she asked to pray for Blasey-Ford.  An honest person would say that he understandably remembers no such event, nor much of anything about the high school hangout parties he attended, and would be a bit bewildered by the accusation.  He wouldn’t be defensive, which is how Kavanaugh behaved most of the time, especially in his exchange with Senator Klobuchar. (“You’re asking about blackout. I don’t know, have you?”)

It didn’t happen and Kavanaugh does remember.  The fourth scenario is implausible.  Does anyone really believe that Kavanaugh has a photographic memory and can remember every single interaction in his youth so he can be 100% certain that the attack did not happen (because he remembers it not happening)?  And yet this was Kavanaugh’s defense at the hearing.  He is 100% certain he did not attack Blasey-Ford at a party thirty-six years ago. Why?  Because he thinks he would remember it?  A brief, drunken, fumbling, aborted attempt to wrestle a girl onto a bed and remove her clothes?  After thirty-six years?

I was obviously more of a goody-two-shoes that Kavanaugh (I didn’t have my first sip of alcohol until the middle of my senior year, after I had been admitted early to Princeton), and I have been trying to remember all of the times that I had too much to drink.  (By the way, it was remarkable to me that Kavanaugh simply could not answer a simple question about what he considered to be too many beers.  “I don’t know. You know, we — whatever the chart says, a blood-alcohol chart.” Really? What non-alcoholic adult cannot answer that question? Moderate drinkers learn to know their limits when it comes to alcohol.)  Anyway, I can remember five times I drank too much and threw up: Marlborough prom 1984; party in my dorm room sophomore year 1985-6; party at Terrace Club with the subway singer 1986; end of the bar exam July 1991; and KMZ 20th anniversary party in Chicago 1994.  I have vivid memories of certain parts of all of these episodes.  For example, at the Marlborough prom, where I very willingly let my date get me drunk, I remember asking a junior to drive my Buick station wagon because I was drunk and I tried to test him on calculus to make sure he was sober.  I even remember asking him to pull the car over when it was time for me to throw up.  At the Terrace Club party, I ended up in the infirmary because, brilliantly, I got hungry after consuming a bottle of red wine and decided to chase it down with a bowl of fruit loops and milk. The folks at the infirmary were convinced I was an alcoholic and made me go through all sorts of questionnaires in the morning about my drinking habits.  The Chicago night was great; dressed in a tuxedo, we went from a formal party at the Natural History Museum to a rave-type club called the CroBar.  That was fun, but the room was spinning the next morning and I had to really work hard to make my flight back to LA.  Maybe I didn’t throw up that time.  In any case, I still have a pretty good memory of these things, perhaps because I didn’t actually drink too much very often, and haven’t done that in over twenty years.

One of my concerns with Brett Kavanaugh is that I get the feeling from his testimony that he is still a heavy drinker.  I can imagine that even during his several background checks no one bothered to volunteer that he occasionally drinks too much.  After all, would you want to be the one to step up and try to torpedo a friend or colleague who sometimes has one too many?  It would not surprise me at all if now, after these allegations have come out, we find more people stepping forward to speak about Kavanaugh’s drinking, and not just while he was in school.  Drinking problems are notorious among lawyers, and Kavanaugh has been known to make light of these issues, even while speaking to law students.  To me, Kavanaugh appears likely to be a high-functioning alcoholic (see “get angry when confronted about drinking.”)  Current drinking allegations might even make President Trump more likely to withdraw the nomination, as the tee-totaling president is very sensitive on the subject.  (His older brother died of alcoholism at age 43.)

But all that may be just my own wishful thinking.  You see, the wish is really the father of the idea.  And that is important for one further reason.  Trump and his Republican allies bash the FBI all the time for what they feel is an unfair, biased approach taken in the Russia investigation.  But as with anything else, there is really only one type of investigating and that is the wishful type.  The evidence doesn’t just fall in your lap; you have to find it.  And you won’t find it unless you actively go out and look for it.  You look for things you want to find.  You have to want to find it, or nothing happens.  So of course the investigators getting a FISA warrant on Carter Page thought that they would find evidence of wrongdoing.  That’s why they sought the warrant.  And it sure looks like they had probable cause to do so.  The same goes for the new investigation of Judge Kavanaugh.  The FBI won’t find anything unless they really want to find something.  Which witnesses to interview, which leads to follow, it all comes down to the desire of the prosecutor.  Does he want to do a perfunctory investigation, just enough to say he did something?  Or does he want to really find something incriminating or exculpatory.  That will determine how far he goes.  If I were investigating this case, the first stop after Blasey-Ford would be Kavanaugh himself.  But have you heard any reports of a real Kavanaugh interview?  The Senate questioning of him was superficial at best.  Take the July 1 party at his friend Timmy’s house.  What does he remember about that party?  Who was there?  What did they do?  How much did they drink?  Did anything memorable happen?  Chances are he remembers very little, but maybe there are still some details worth pursing.  And what about all of those whopping lies about the meaning of his yearbook page (Renate Alumnius, Boof, Devil’s Triangle, etc)?  Will he repeat those to the FBI?  In any case, if you don’t hear that the FBI talked to Kavanaugh, you’ll know that this wasn’t an investigation where they were trying to find anything.  Because the wish is the father of the idea.

Martyrology

As the family genealogist, I spend more time than most thinking about my ancestors and relatives, but it wasn’t until 1999 that I submitted 41 Pages of Testimony to Yad Vashem for the ones I then knew had perished.  I’ve discovered many more since them. In my family, the Holocaust was never a story of survival.  Sure, we learned of the escape of my grandparents – the Schoenbergs fleeing suddenly in the middle of the night from Berlin in 1933; the Zeisl narrowly escaping from Vienna on November 10, 1938, the day after Kristallnacht.  But when I thought of the Holocaust, it was not about them, the survivors, it was about all the ones who didn’t make it out alive.

My mother’s parents made it to New York and in 1940 my mother was born there – an anchor baby.  Her father’s parents Siegmund and Kamilla Zeisl had remained in Vienna, perhaps because Kamilla was not well.  She died of cancer a month before my mother was born.  Kamilla’s sister Malvine, a widow, took care of my great-grandfather Siegmund, a retired coffeehouse owner whose café was taken away by the Nazis, and the two eventually married so that they could try to emigrate together.  I’ve read the letters they sent from Vienna during that time and they are full of love and encouragement for their children who had managed to escape, and hope that they would soon be able to join them.  Innumerable obstacles were put in their way, both by the Nazis and by the American immigration authorities.  In the final letter, Siegmund says he could get a ticket to sail from Lisbon on December 5, 1941, but that Malvine could not leave until January.  He was hoping to sort it out.  He must have delayed his escape to remain with Malvine.  The December 5 boat from Lisbon turned out to be the very last before war broke out on December 7.  The two of them were deported to Theresienstadt on July 14, 1942, survived two terrible months there, and were then put on a train on September 21, 1942 to Treblinka, where they were murdered on arrival.

We in America like to hear stories of survival and escape, and we lionize resistance fighters, but for me, those stories don’t represent the Holocaust.  My great-grandfather Siegmund didn’t have a daring escape, he didn’t survive the camps, he stayed behind to take care of his loved ones, and he was murdered.  For that, I remember him today.