by Neil H. Buchanan
I have heard labor lawyers use a term, "retroactive incompetence," to describe the phenomenon in which an employee with a stellar work record (usually including glowing annual performance reviews, multiple commendations, and so on) finds herself under attack by her bosses after she does something that the bosses dislike (files a sexual harassment complaint, sues for being passed over for a promotion in favor of a less qualified beneficiary of nepotism or sexism, blows the whistle on financial misdeeds or environmental crimes, and so on).
The "disgruntled former employee" at that point becomes the worst worker the company had ever been forced to deal with. It becomes surprisingly easy to swat away all of those employee-of-the-year awards and letters of commendation by saying that the employee was so problematic that it was easier for everyone to tell her that she was (and to treat her like) a great employee than to tell her to stop being -- and in this context, it is easy to predict what is coming next -- "such a b-word."
This defense ought actually to be deeply embarrassing, because the bosses -- who, if their company is publicly traded (as most are in cases that make the news), are holding out their company to investors and regulators as a responsibly managed organization that is worthy of being given fiduciary responsibilities -- was in fact so scared of one Nasty Woman (yet one who, presumably, nevertheless persisted) that they damaged the company rather than get rid of a cancer on the corporate culture.
As self-negating as that defense is, however, we see it over and over. And it does contain a grain of believability in that people do know that some problematic people are tolerated nearly everywhere. (TV sitcoms could barely exist without them.) The real-world consequence is that we are left looking at matters of degree rather than categorical evidence. People who perhaps were once praised by a boss are different from those who receive promotion after promotion and all-but-poetic reviews from their supervisors. Even with the inevitable tough, borderline calls, there will still be clear cases where we can see that a person is being slimed ex post by people who have no better defense.
All of which brings us to Donald Trump and his many enablers.
We know that everyone who has ever had anything negative to say about Trump is, in Trump's telling, an awful person who should never have been trusted. Even -- especially -- the people whom Trump himself trusted are the absolute scummiest of the scum. Washington Post columnist Catherine Rampell notes the amusing irony that Trump's defenders are now saying that the man who promised that he would hire the Best People is actually a naif who is being victimized by cunning operators who only looked like loyal Trumpists.
Rampell's column is brilliant throughout, but this is an especially strong bit:
"These connivers have been astoundingly effective. Somehow they’ve tricked Trump into saying and doing racist and corrupt things, in public and on camera. They hoodwinked him into passing economic policies that punish his working-class base while rewarding wealthy donors. And, worst of all — in the case of Ukraine — these schemers suckered Trump into subordinating U.S. national security to his own selfish political interests.
"Either that or they cleverly framed him."
That is a nice take-down. Trump, of course, could rely on a different defense if he wanted to, because his version of the Retroactive Incompetence argument is simply that he is a carnival barker. Everything he likes is "the best," everyone who pleases him is to be praised with nothing but superlatives. (He "fell in love" with Kim Jong Un, for chrissakes!)
Trump thus can be seen not as the boss who honestly thought his employee was good at her job, resulting in a glowing performance evaluation, but as a person who never has an honest opinion about people's actual qualifications or abilities to perform the duties of their jobs. Why not? Because Trump believes that there are no qualifications, abilities, or skills that matter. There is only one duty for every jobholder: Praise Trump and do exactly what he wants at all times (even after she leaves).
There is, therefore, no such thing as a person who is "good at what was specified in her job description but didn't get on with Trump," because getting on with Trump simply is the job description. Retroactive incompetence, then, is easy enough to spot: "I thought she was being good to me and always would be, but I turned out to be wrong, so she's now dead to me and was always scum."
This, in turn, raises an interesting question about whether it is possible to defeat the time inconsistency problem that lies at the heart of the retroactive incompetence strategy. Is it possible to tie people down in advance to saying that a person is to be trusted?
Professor Dorf, in a column last week discussing the disgusting Trumpian attacks on the retroactively incompetent (and it seems, retroactively not-really-American) Lieutenant Colonel Alexander S. Vindman, briefly touched on one version of this idea. A proposal by Professors Daniel Epps and Ganesh Sitaraman to defuse political polarization on the Supreme Court, Dorf noted, "would have Congress enact legislation providing that the Court consist of five Republican appointees, five Democratic appointees, and five 'neutrals' chosen by the other ten."
Neat idea, right? No more possibility of attacking a Supreme Court opinion by saying it was supported by appointees of only one party. Every 8-7 opinion would have to have at least a 3-2 split among the "apolitical justices," giving everyone more confidence in the objectivity of the outcome.
But Professor Dorf immediately sees the problem:
"The attack on Vindman provides another window into why the Epps/Sitaraman proposal would likely fail: even assuming the ten political appointees could agree on five 'neutral' justices, as soon as the neutrals issued opinions, they would be perceived and denounced as partisans. An 8-7 ruling against Trump by, say, five Democrats plus three neutrals would quickly lead to Trump denouncing the majority as 'Eight angry Democrat so-called judges' or Never Trumpers. Mere disagreement would itself be taken and then offered as proof of partisan bias."
Sadly, what Professor Dorf describes is all too easy to picture. Lifelong Republican tough-on-crime guys like Robert Mueller are suddenly partisan Democrats in the eyes of Trump and his people. Hell, John McCain was not a real war hero in Trump's view! (My opinion of McCain as a politician deviates significantly from the usual what-a-guy paeans that one saw before and upon his death, but the man definitely was a war hero. That it is even necessary to say so is shocking.)
The problem, however, is that there are situations in which new information truly should change what we think about a person. Prior to a few years ago, Bill Cosby was not only beloved but was thought to be the kind of person who could not possibly do what it turns out that he had been doing for decades. More prosaically, most people who are horrified by Trump have had moments when they learn that a friend or family member has gone full MAGA, basically without warning. We then ask ourselves: What were we missing all these years?
A more pertinent example of this phenomenon is current not-really-acting-like-the-Attorney General William Barr. In a column earlier this year, I noted that Barr came into the Trump Administration with something of a bipartisan reputation for rectitude. Especially compared to Jefferson Beauregard Sessions III and toilet salesman Matthew Whitaker (the interim AG), there was a collective assumption that Barr was a huge step forward. How wrong we were.
This means that it would never be appropriate to say, "Here are people whom both sides deem to be above reproach, such that nothing they say or do can be attacked henceforth as inappropriate or partisan." And this is even setting aside Cosby-like situations where the person was a monster all along but had hidden it well. A person who has never done anything attackable is still capable of doing something attackable.
That is, I was picturing a situation in which Republicans and Democrats are told that some person has come forward and wants to testify about Trump's impeachment. Before anyone hears what she has to say, a reporter asks, will you -- Nancy Pelosi, Donald Trump, Adam Schiff, Devin Nunes, Chris Matthews, Sean Hannity -- stipulate that this person is per se to be believed or disbelieved?
I initially thought that the best strategy for at least Trump, but maybe for both sides, would be to answer "presumptively disbelieve" about everyone (unless we know something about them otherwise, in which case the two sides would likely disagree on the credibility assessment). Although that seems right, I now think that we neither can nor should even get to that step of the analysis, because it simply makes no sense even from a non-strategic perspective to deem certain people to be presumptively credible. Barr truly is the cautionary tale here.
Where does that leave us? As has become the common theme in the Trump era, it turns out that social and political norms matter much, MUCH more than we ever imagined. When one side is still playing more or less by the old rules in which witnesses are given a fair hearing and we make credibility assessments based on what we see and learn, but the other side says that even someone like Alexander Vindman is an unpatriotic NeverTrumper based solely on his recitation of unwelcome facts, we have a problem.
And that problem is not solvable through pre-commitment devices or other attempts to sidestep the requirement of good faith. If one side wants to ruin the game and simply grab everything it can grab, we are no longer looking at a system that can function in anything like the ways that we have always taken for granted. What comes next will not be pretty.