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Tuesday, December 20, 2022
NEW INC. MAGAZINE COLUMN BY HOWARD TULLMAN
It's Clear That Transparency is a Phony Issue
Lots of companies are fussing over the idea and promise transparency by the boatload--except when it really matters. For new businesses, transparency isn't always a virtue.
BY HOWARD
TULLMAN, GENERAL MANAGING PARTNER, G2T3V AND CHICAGO HIGH TECH
INVESTORS@TULLMAN
Transparency will be the most abused, overused, and unhelpful
word in 2023. Accountability will be a close second. You didn’t hear those
words here first, and, if you haven’t already heard pithy pronouncements with
these words as anchors at least a dozen times this week - in every conceivable
context - just give it a day or two. You can’t escape the unending media
barrage of self-serving pronouncements, pandering polemics, and pitiful
pronouncements - hair shirts, mea culpas, and tearful testimonials - flowing
through every channel of our digital universe.
Every petty politician, petulant publisher, grasping
government official, besieged college president, battered police
superintendent, suck-up social media maven, corrupt team president and clueless
sports authority is piling on the “tell all” campaign without the slightest
intention of making significant changes in the wretched ways they do business.
Nor are they disclosing any image-damaging information which - if and when
actually and honestly shared - could make material improvements in the lives
and livelihoods of millions of people, players, and professionals.
When the Washington Post announced surprise
sizable layoffs to take place in the first quarter of 2023,
practically the first words in response from the Post Guild, its union,
highlighted the hypocrisy of the Post’s oft-asserted
commitments to the twin virtues of transparency and accountability. These folks
are all happy to gore everyone else’s ox and hoist them all on their own
pathetic and hypocritical petards as long as none of those chickenshit comments
come home to roost.
In fact, for the worst of the bunch, like Elon Musk, all
this noise and performative nonsense isn’t a solution for anything. It’s just
an excuse for bad behavior, bullying and BS, all cheap talk and utterly free of
cost, commitment, or the slightest consequences for these two-faced jackals. A
recent ChatGPT demo spun out a six-point corporate mission statement in two
seconds, composed entirely of meaningless mush and clichés with core values
that included integrity and accountability, and a poignant testament to the
power of transparency and open communication. The bot regurgitated a comprehensive
crock of jargon and crap which would be at home in the handbooks of any Fortune
500 company-- and just as empty and useless as what they now display.
But the rest of us aren’t free from these lies or able to
ignore the problems such pretense presents, especially for startup
entrepreneurs and new business builders who are trying to create and nurture
their company’s culture. Because, like it or not, an entire generation of
current and prospective employees has been brought up by peacekeeping parents steeped
in conflict avoidance and ego inflation. The kids have been lectured by
academics interested in no opinions other than their own. And they've been led
to believe that brutal honesty, unfeeling frankness, and “constructive”
criticism are today’s be-alls and end-alls - demonstrably greater goods and
values than traditional company assertions - that are far more pressing and
important than any others. Their parents and school academics have set them up
for failure and the rudest of awakenings when they enter the real world and
start spouting their naïve opinions and truths.
The newbies feel and have been told by their folks that they
need to bring their own “truth” and their whole selves to work with them, speak
their minds and their unfiltered thoughts, and share it all unreservedly and
without regard for the consequences or the feelings of others with those around
them - like it or not. But aggressive transparency, random truthing, and
sharing whatever strikes their fancy is not the way the real world works -
never has been and never will be - and, in fact, it’s a prescription for
certain and consistent disappointment.
As a result, it falls upon each and every CEO who’s trying
to inform, excite, and educate team members about their own company and its culture
to figure out how to carefully, quickly and clearly separate the facts of life
and business from these persistent and sadly prevalent impressions and
misunderstandings. This task couldn’t be tougher than
today when half the country continues to live in a bubble of
lies and liars, and the very concepts of objective truth and accepted facts are
under constant attack. I’ve previously written about the issues around
“situational ethics” but primarily with an outward focus: the need to tell the whole truth all the time to clients and
customers. Half a lie is still a lie.
While the same general ideas apply - the truth doesn’t
vary based on circumstances - the way you handle internal discussions and
information sharing are considerably more complicated when your people have
radically different ideas about how things should go. While honesty is clearly
a virtue, complete candor is far more of a challenge. Especially in a new and
growing business - where the culture is still formative and malleable-- the
simple facts and the bottom line are that the truth needs to be wielded with
care. Not all truths are for all people and not everyone needs to know
everything.
This philosophy may be hard to swallow for your newer team
members but the ones worth keeping will recognize both the need and the
necessity of carefully navigating these very treacherous seas. Being open and
upfront at the outset may not get you a lot of friends, but it will ultimately
get you the right ones. It’s better to take the beatings and lectures upfront
and refuse to wobble than to live for the longer term with an insincere and
undeliverable promise. And, believe me, I appreciate how hard it is to hold
your tongue when a 25-year-old kid is telling you how to run your business.
Like having Ronald McDonald criticize your taste in clothes. But listening to
advice sometimes accomplishes a lot more than heeding it.
Still, for my money, there are a few ideas that you need
to set in stone from the get-go.
(1) The first matter is money. Money is what
people without talent use to keep score. No one has some God-given right to
know what everyone else in a privately-owned business earns. Public companies are
obviously different. In today’s complex and stressful hiring game, salaries,
bonuses, options, and every other kind of perk are part of the puzzle and built
into the most competitive packages. They’re nobody’s business but the boss’s.
End of story.
(2) Democracy is a great concept,
collaboration is terrific, consensus is a mixed blessing at best and everyone’s
entitled to their opinions and to provide constructive input into the
decision-making process. However, not every idea or suggestion is smart,
appropriate, or even useful. Once a decision is made by management, that’s the
end of the conversation and everyone gets on board and moves forward. All the
wood behind one arrowhead.
(3) Constructive criticism is much more than
simple fault-finding. Newbies need role models far more than they need critics.
Showing rather than telling is a helpful and instructive approach for both
parties. If you can’t offer a better way to proceed and a clearer path, it
makes the most sense to keep your eyes open and your mouth shut. Everything
looks easy if it’s someone else’s job.
(4) At some point, endless conversations
become a matter of “my way or the highway” because people need to get down to
business. Newbies need to be reminded that they may
eventually earn the right to do things “their” way. One clear sign of maturity
is when you realize that it takes less time to do as you’re told than it does
to complain incessantly about what you’re doing.
There are truths which are not for all people, nor for all
times.
Monday, December 19, 2022
The Jan. 6 committee just lowered the boom on Trump. Now the ball is in DOJ’s court.
The Jan. 6 committee just lowered the boom on Trump. Now the ball is in
DOJ’s court.
Columnist|
December 19, 2022 at 3:35 p.m. EST
Donald Trump cannot pass off the House Jan. 6 select committee’s final report as mere partisan opinion. His criminal liability is based on a mound of evidence, as the committee meticulously detailed.
Moreover, the committee’s “roadmap to justice” is not just a restatement of facts already made public by the committee. It is the foundation that the Justice Department could use to prosecute the former president and his underlings to the fullest extent of the law.
The report’s executive summary, which the committee released on Monday, includes four criminal referrals for Trump: insurrection, obstruction of an official proceeding, conspiracy to defraud the United States and conspiracy to make a false statement. Trump lawyer John Eastman is also slated to be referred for obstruction of a congressional proceeding and conspiracy to defraud the United States. The committee leaves open the possibility that others might be referred for participation in such crimes, leaving it to the Justice Department to investigate.
At its core, the
report lays out the evidence for critical facts:
· Trump attempted to stay in power despite the vote of the American people.
· He tried to concoct phony slates of electors to change the electoral vote.
· He tried to pressure former vice president Mike Pence to disregard the electoral count.
·
When that did not work, he summoned the mob to the capital on
Jan. 6, 2021, urged rally attendees (some of whom were armed) to march to the
Capitol and did nothing for 187 minutes to stop the violence that
ensued. In fact, while the insurrection was underway, he sent out a tweet
putting a target on Pence’s back.
Never in the history of the republic has Congress taken such a momentous step of issuing a criminal referral of a former president. Then again, never in our history has a president attempted to prevent the peaceful transfer of power.
While a referral has no legal significance, the roadmap puts great pressure on the Justice Department. If special counsel Jack Smith decides not to indict Trump, he will have to explain why his judgment differs from that of a congressional committee that painstakingly examined the evidence and presented it to the American people.
Let’s take a look at each of the potential charges against Trump:
Insurrection
In some sense, this referral should come as no surprise. The entire country saw Trump unleash the mob to stop Congress from counting the electoral votes. A majority of the House impeached Trump specifically for incitement of insurrection. And 57 senators voted to convict him on that charge.
The statute concerning such a criminal charge is fairly straightforward. Section 2383 of Title 18 of the U.S. Code states: “Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.” The committee argues that Trump “gave aid and comfort" to the Jan. 6 insurrectionists with his actions that day.
As several legal commentators have noted, prosecutors in an insurrection case would not need to prove that Trump agreed to overthrow the government, as would be required for a seditious conspiracy charge. They would only need prove he assisted in opposing the authority of the government.
Moreover, conviction under Section 2383 would bar Trump from holding federal office. In essence, a successful prosecution on these lines would accomplish what Republican senators refused to do in the impeachment trial: prevent Trump from ever regaining the presidency.
Yes, proving that Trump “gave aid or comfort” (as opposed to mere cheerleading) would be difficult. Prosecutors would likely have to overcome a First Amendment defense. But the committee’s job was not to make a final prosecutorial judgment about whether a conviction is possible; it was to confirm that the country collectively witnessed an unprecedented crime. In setting forth a voluminous record and encouraging criminal charges, it puts the onus on Smith to decide whether the totality of evidence would not be enough to persuade a jury to convict Trump of insurrection.
Obstructing a congressional proceeding and conspiracy to defraud the United States
These potential charges are nothing new. Legal scholars as well as federal District Judge David O. Carter (in adjudicating Eastman’s attempts to avoid complying with congressional subpoenas based on client-attorney privilege) have found it more likely than not that Trump committed such crimes. (The committee’s summary devotes substantial space to reviewing Carter’s analysis.)
In fact, multiple Jan. 6 insurrectionists have either pleaded guilty to or been convicted of obstructing a congressional proceeding under Section 1512(c) of Title 18. The executive summary released by the committee explains:
Sufficient evidence exists of one or more potential violations of 18 U.S.C. § 1512(c) for a criminal referral of President Trump based solely on his plan to get Vice President Pence to prevent certification of the election at the Joint Session of Congress. Those facts standing alone are sufficient. But such a charge under that statute can also be based on the plan to create and transmit to the Executive and Legislative branches fraudulent electoral slates, which were ultimately intended to facilitate an unlawful action by Vice President Pence – to refuse to count legitimate, certified electoral votes during Congress’s official January 6th proceeding.
Additionally, evidence
developed about the many other elements of President Trump’s plans to overturn
the election, including soliciting State legislatures, State officials, and
others to alter official electoral outcomes, provides further evidence that
President Trump was attempting through multiple means to corruptly obstruct,
impede or influence the counting of electoral votes on January 6th. This is
also true of President Trump’s personal directive to the Department of Justice
to “just say that the election was was [sic] corrupt + leave the rest to me and
the R[epublican] Congressmen.”
Trump’s plot to create alternative electors warrants a conspiracy to defraud charge for similar reasons. This is based on Section 371 of Title 18, which the Supreme Court has ruled makes it a crime to obstruct lawful governmental functions through "deceit, craft or trickery, [or] by means that are dishonest.”
As the committee’s executive summary points out, “The evidence of this element overlaps greatly with the evidence of the Section 1512(c)(2) violations. ... President Trump engaged in a multi-part plan described in this Report to obstruct a lawful certification of the election.”
Conspiracy to make a false statement
This is based on Section 1001 of Title 18, which applies to anyone who “makes any materially false, fictitious, or fraudulent statement or representation” to Congress or who “makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry.”
Trump’s attempt to compile phony alternate electors to submit to Congress could subject him to prosecution for this crime. The committee finds:
The Committee believes that
sufficient evidence exists for a criminal referral of President Trump for
illegally engaging in a conspiracy to violate Section 1001; the evidence
indicates that he entered into an agreement with Eastman and others to make the
false statement (the fake electoral certificates), by deceitful or dishonest
means, and at least one member of the conspiracy engaged in at least one overt
act in furtherance of the conspiracy (e.g. President Trump and Eastman’s call
to Ronna McDaniel).
Other potential avenues for accountability
The Justice Department is by no means limited to these pathways of prosecution. The committee holds out the possibility that the department might pursue other charges such as seditious conspiracy if it uncovers evidence that Trump conspired with the violent armed groups that stormed the Capitol.
The Justice Department might also prosecute him under another statute (Section 372) for conspiring “to prevent, by force, intimidation, or threat, any person from accepting or holding any office, trust, or place of confidence under the United States, or from discharging any duties thereof." As the committee noted, there were “potential efforts to obstruct its investigation, including by certain counsel (some paid by groups connected to the former President) who may have advised clients to provide false or misleading testimony to the Committee.”
The committee also included this stunning revelation: “The Select Committee is aware of multiple efforts by President Trump to contact Select Committee witnesses. The Department of Justice is aware of at least one of those circumstances.”
By leaving certain matters and certain potential defendants to the discretion of the Justice Department, the committee establishes its own credibility and underscores its own limits in accumulating evidence.
Beyond prosecution, the report cites members of Congress who failed to comply with subpoenas issued to them, which the committee will refer to the House Ethics Committee for further action. This includes House Minority Leader Kevin McCarthy (R-Calif.), Jim Jordan (R-Ohio) and Scott Perry (R-Pa.).
Many Americans have
rightly wondered whether Trump would ever be held accountable for his misdeeds.
Today marks a critical, unprecedented and justifiable step toward making that
happen. The ball is now in Jack Smith’s court to uphold the rule of law.
Thursday, December 15, 2022
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