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Poker photo

By Don Kilmer

Posted October 18, 2019 9:30 AM PT

A disagreement over President Trump caused me to lose a friend who’s a criminal defense lawyer of some renown. I came to admire my former friend for the fearless way he approached the constitutional litigation that every criminal defense lawyer undertakes in their daily work. He always referred to our national charter as “My Constitution” and he litigated as if it, rather than the defendant, was the client. There was no Fourth, Fifth, or Sixth Amendment issue too small to contest if it could rein in government power. And he won pretrial motions that many of his colleagues would be too timid to file. Respect.

My ex-friend describes himself as a Republican who left the party. He makes other “Never Trumpers” seem like MAGA hat enthusiasts when criticizing Donald J. Trump, president of these United States of America.

Prior to Trump’s election, I was a vocal Never Trumper too. I voted for Gary Johnson. My views evolved over the past three years from a grudging “wait and see” to neutrality. Eventually I moved to a tepid “maybe this won’t be so bad” to a more positive “no president is perfect.” Now I’m edging toward: “I’ll probably vote for Trump in 2020, if he can manage to keep from being impeached and removed.”

This last transition is an act of self-defense. The Democratic Party’s leap to the far left is an existential threat. They are no longer distinguishable from socialists. And a protest vote for the Libertarian candidate seems risky. I’m still no Trump cheerleader, but his affinity for tyranny—if he has any—seems remote. His coarse personality, thin skin, and authoritarian style are off-putting. On policy, I think The Donald is a mixed bag. His biggest policy mistake so far is interference with free trade. (A caveat: If Trump’s plan is to threaten a trade war to achieve actual free trade and removal of all trade barriers, all will be forgiven. I remain skeptical.)

I also think President Trump and his supporters are being treated unfairly by the socialist left (no surprise) and worse by the media-jackals (no surprise, but with less excuse.) After all, Trump and his supporters went out and won an election under the rules that existed at the time.

For those rules, we can thank the Founders for the Electoral College. How could they have known? Our nation is splitting into factions, mostly along the lines of densely populated coastal metropolitan centers against the suburban and agricultural heartland. How could the Founders have known that the best way to hold the country together, and insist on the territorial integrity of the nation, was to devise an electoral process for the chief executive that distributed the selection process across all the states. Brilliant!

The loss of a friendship with my former colleague arose over the current impeachment inquiry. He believed Trump is, was, and will always remain unfit for the office. He’s entitled to his opinion, of course. America is, or should be, a free country. My position was that fitness was beside the point. He had been elected by my fellow Americans and that only impeachable conduct that took place while in office should be held against Mr. Trump. I hadn’t seen any. Unfortunately, my former friend could see nothing but.

Two explanations

The puzzle for me is this: How did this disagreement turn personal? Why did a collegial relationship based on shared professional affinity for our Constitution turn sour? I can think of only two reasons.

First, there seems to be something deep in the human psyche that seeks to elevate political leaders to the status of national symbols or archetypes. How else can one explain why polar-opposite partisans on the subject of Trump can both claim to be patriots? Could it be because “wrong person for the job” is a different proposition from “villain has been elevated to hero?” Why must our President be either a hero or villain? And why has the choice become mutually exclusive?

I don’t see Mr. Trump in those terms, but my former friend did. His revulsion toward the President was visceral and earnest. My insistence that Trump was entitled to every procedural safeguard in the Constitution was met with an equal and opposite insistence that I was cynically invoking constitutional norms because I secretly admired him. I don’t, but I can see why having the “tools of the trade” invoked in a way that might frustrate an effort to remove Trump upset my friend.

This first reason is not a solvable problem. Differences of opinion and relationship transitions are inevitable in a free society. People often forget that a great advantage of a culture of liberty is that it is as important to have the liberty to disassociate from those we disagree with, as it is to form associations with the like-minded.

But the second reason for my falling out with a man I continue to respect is solvable. I call it the “Tragedy of the Poker Table Commons.” Yes, it’s a mashup of two concepts.

The “Tragedy of the Commons” is well known. It’s usually defined as “a situation in a shared-resource system where individual users, acting independently according to their own self-interest, behave contrary to the common good of all users, by depleting or spoiling that resource through their collective action.”

The “Poker Table” component of this hybrid social theory is my own creation. I owe a debt to Robert A. Heinlein’s Notebooks of Lazarus Long: “There is no such thing as ‘social gambling.’ Either you are there to cut the other bloke’s heart out and eat it—or you’re a sucker. If you don’t like this choice—don’t gamble.”

The taxes that governments now collect at the federal, state, and local levels is that shared resource of the commons. This common resource has probably been mostly mismanaged ever since it has been collected, with the politicians overseeing redistribution able to make their self-interest seem like the common good. Sometimes the two overlap to the benefit of “the people.” Our politicians now feel comfortable asking us to vote for them to go to Washington to bring home the bacon. Both in real terms, and as a percent of Gross Domestic Product, the prize money that gets allocated by the legislature has grown. In 1929, federal government spending was around 3 percent of GDP. It’s around 20 percent today.

Taxpayers effectively stake their politicians in national poker tournaments, where the winners take home progressively larger sums depending on their skills at the poker table—that is, legislating.

Politics today has transformed this process into an increasingly higher stakes poker game, and not only because of the amount of money in the pot. As Leviathan has grown, the people sitting at the table playing to redistribute the pot are playing for more than the locations where aircraft carriers, courthouses, and post offices will be built, and who benefits from their construction.

The house (the House) doesn’t merely control the allocation of winnings. It also controls through legislation: the pensions and medical care of our elders (translation: hostages), the education of our young, and the healthcare system for more of us every year. There are plans to legislate the weather, to regulate the Internet, and to pay reparations for past government wrongs.

The government controls transportation infrastructure, banking, pharmaceuticals, industrial policy, and sets rules for the marketing of goods and services. Permission from the government is required to build a house, remodel a kitchen, install a hot-water heater, or remove a tree. Licenses are required to practice law, to educate, to twist hair, to kill bugs, to fix plumbing, to drive a car, and to buy a gun. For a running inventory of ordinary conduct that can land you in jail, follow @CrimeADay on Twitter or pick up the book How to Become a Federal Criminal by Mike Chase.

This is no longer a friendly poker game, meaning the stakes and odds are known and your losses are limited to the money you put on the table. The contests in our national and state capitols are culture wars. The winners take all, because everything is at stake.

What happens when everything’s at stake? To go back to Heinlein: Today’s successful player-cum-politician is there to cut the other guy’s heart out and eat it. That’s why the game has turned so nasty. That’s why the discourse for allocation of the commons has become so rancorous. When you realize you’re playing for all of your wealth, for the future of your children, for the care of your parents, for liberty itself, is there anything you wouldn’t do to win?

The only way to resolve this is to limit the table stakes. Make government smaller, less intrusive, less threatening, and less able to alter your existence or affect your happiness.

I suspect that, if politics were not today’s zero-sum game, my former friend wouldn’t feel so threatened by a government headed by someone like Donald J. Trump. Maybe tyrants and persons perceived as tyrants by otherwise rational people would not be as interested in a game with less at stake. Maybe if we could tame Leviathan, I’d still have my friend.

Don Kilmer is a Second Amendment litigator and an editor of Talking.


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    Molly Hemingway read my mind. https://www.youtube.com/watch?v=e5rmMTS2elE

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      Thanks for the link. That was a good speech.

      If you don’t have time for the whole thing (about an hour), here’s:


      “I worry about the preservation of the republic…”

      And on how this is not a political divide, won’t be resolved in an election, gap between two cultures: https://www.youtube.com/watch?v=e5rmMTS2elE&feature=youtu.be&t=1510

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        I posted the following in response to discussion on Facebook about this essay.

        Dear Mr. X,

        Thanks for the feedback. As I said in my piece, reasonable minds can differ on whether Trump is fit for the office. He wasn’t my choice in 2016, and while I haven’t made up my mind for 2020, I would consider a defensive vote for Trump just to keep the current crop of socialists in the DEM party out of power.

        Consider this: Trump with a 2nd term, and the DEM party still gunning for him, will owe his continued occupancy in the WH to the GOP. Perhaps they can impose some discipline. It’s not a great plan, but the DEMs are advocating policies that lead to genocide in the 20th Century. So what’s the alternative?

        If you are upset that Trump is making some coin on being POTUS, then are you equally outraged that Obama entered office with a net worth less than $1M, but is now worth over $100M? I haven’t seen the evidence that Trump is personally profiting from being POTUS. Have you? Or are you surmising? What if the G7 summit results in him breaking even and the U.S. Govt actually saves money?

        But if you are correct and during his increasingly likely 2nd term, it is uncovered that he did personally profit, then impeach and remove him. Fine by me. I can live with a President Mike Pence.

        I don’t expect you to respect Trump. I’m not sure I respect him. But I can, and must respect the process that put him in power and I can’t agree to short-cuts to remove him. The rule book is the rule book for everyone. Why is the “impeachment inquiry” being conducted in secrecy? Since when does America condone Star Chambers?

        As for your claim that the environment, education system and international relations are ruined, let me take those one at a time.

        1.) Please cite the constitutional text that empowers COTUS or POTUS to regulate the environment? Shouldn’t that be an interior local matter regulated by state and local government? Instead of asking if Trump is mismanaging the environment, perhaps we should be asking why any POTUS is given that power.

        2.) Education? This is even more attenuated than the environment. The founders would categorically reject any and all tampering with such a sensitive subject by the national government. There is no constitutional mandate for involvement in this sphere. If the national government is one of limited and enumerated powers, where is this power to teach found in our national charter? Please cite article, section and clause, or amendment if one got passed that I overlooked.

        3.) International relations. You got me there. I haven’t approved of America’s foreign policy since approximately 1948. But I will concede I’m in the minority there. If the U.S. is to have client states like S. Korea, or the Philippines, or Taiwan, or Israel — then they should be offered statehood. Otherwise, they should fend for themselves.

        My politics are closest to Rand Paul and Mike Lee if you need currently elected politicians as an example.

        But I also respect your opinions and acknowledge that Trump is a polarizing figure. But given the growth in the size and scope of government documented in my piece, perhaps we need our politics shaken up a bit because we are headed for insolvency and a police state if we don’t change course.

        My two cents.