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Monday, September 24, 2018


There is something that has puzzled me for quite some time, and perhaps a reader with genuine legal knowledge can help me out.  It is established that the Trump campaign was approached with the offer of material from the Russian government detrimental to Hillary Clinton and her campaign, and that senior members of the campaign, including the campaign chair, agreed to meet for the purpose of discussing this offer.

Leave aside everything else, including whether the Russians actually possessed such material.  Why are those facts, as they stand, not evidence of a conspiracy between the Russians and the Trump campaign to affect the election?


Unknown said...

They are direct evidence of violations of electoral law. Some people believe, erroneously, that there is no crime if there is no proven effect on the electoral outcome. Some also believe erroneously that prosecutors must bring charges quickly. Some believe correctly that this evidence does not inculpate Trump. For that, evidence that he participated in a conspiracy is needed, and i so far circumstantial. For more, look Lawfare posts and Election Blog.

MS said...

I believe there are two reasons. There has to be evidence of an overt act in furtherance of the conspiracy, and, in this case, in addition, an agreement for a quid pro quo. We know that Don Jr., Manafort and Kushner met with a female Russian lawyer who, it is claimed, was acting on behalf of the Russian government. But we do not know specifically what was discussed. Presumably, Mueller has, or is seeking, more information on what precisely was discussed. If, as you propose, putting aside whether the Russians actually possessed information helpful to the Trump campaign, then there would not thereafter be any overt act in furtherance of the conspiracy, just discussions. Let’s say it was discussed that the Russians would leak information that they actually obtained from DNC emails, damaging to Hillary Clinton, and nothing was offered in exchange. The Trump campaign could contend that the Russians just did that because Putin disliked Clinton and wanted to help her opponent. The quid pro quo would be if the Trump campaign offered, either at that meeting or later, to take measures to hamper NATO or lift sanctions on Russia.

An ancillary question might be if there was no offer of a quid pro quo, and the Russians just offered to release damaging information from DNC emails, which the Trump campaign knew were stolen, could they legally benefit from the release of such information without reporting the theft. This would be unlike Watergate, which was a break-in actually engineered by the Nixon campaign. Since Trump was not yet President, and had not yet taken the oath to “preserve, protect and defend the Constitution of the United States,” including the requirement that he “take Care that the Laws be faithfully executed,” I do not believe that failure to report that Russians had stolen DNC emails would be a crime. Let’s even assume that Trump learned after the meeting what was discussed, but there was no quid pro quo, can Trump be impeached for claiming, for example during the debates, “I don’t know the Russians, I have nothing to do with them.” I don’t believe so – he’s just lying, which we know he does continuously, even as President.

For an amusing SNL spoof on the Mueller investigation and the Bachelor see:

Unknown said...

Quid pro quo applies to bribery, which is not at issue here (yet). The relevant law prohibits accepting an offer of something of value from a foreign source. That was the meeting. Conspiracy act in furtherance was the meeting and any subsequent conversations (or preceding conversations). Actual effect on the election is not relevant, nor is the content of the information provided. MS seems to be thinking of a governmental official, prosecution of whom the Supreme Court has made considerably more difficult by requiring express qpq.

MS said...

Well, as anyone who has practiced law can attest, lawyers – and judges, obviously – often disagree about the legal repercussions of certain facts. That is why many S. Ct. decisions, for example, are not unanimous. I assume that Unknown is a lawyer. But I disagree with his analysis. I am not talking about bribery. I am talking about a criminal conspiracy, which is what, I believe, Mueller is investigating. For prosecution of a criminal conspiracy, at least one overt act in furtherance of the conspiracy is required. Discussions are not sufficient. For example, Terry McVeigh’s discussions with Terry Nichols to blow up the Oklahoma City Federal Building would, alone, not have been sufficient to prosecute for a criminal conspiracy. There had to be at least one overt act, for example, purchasing the fertilizer.

It would not matter how many discussions the Trump campaign had with Russian operatives in planning a conspiracy. There would, in addition, have to be an overt act to advance the objectives of the conspiracy. The Trump campaign had not been involved in hacking the DNC emails. At the time of the Trump Tower meeting, that had already been accomplished by the Russians, so the theft of the emails cannot be tied to the Trump campaign. They may have (“may” because we do not know what was said at the meeting) offered the information to the Trump campaign, hoping to get a quid pro quo in exchange. The Russians may have leaked the information to Wikileaks without the quid pro quo, in which case the Trump campaign would not be guilty of participating in a criminal conspiracy – they were just the beneficiaries of autonomous actions by the Russians. If the Trump campaign made promises equivalent to a quid pro quo, then the Russians’ release of the hacked emails to Wikileaks would have constituted an overt act in furtherance of a conspiracy in which the Trump campaign was a participant. I agree that evidence that the outcome of the election was actually affected is not required, just evidence that there was attempt to affect the election. If what you state were true, that discussions alone would have been sufficient, Mueller would have already indicted Don Jr., Manafort, and Kushner for engaging in a criminal conspiracy. Since he has already indicted and prosecuted Manafort, and a criminal conspiracy to affect the election was not among the charges, I believe that he did not yet have information sustaining such a charge. By turning Manafort, perhaps he will obtain it.

P.S.: Prof. Wolff, I finally realized the reference of your use of the word “puzzlement” – The King and I.

MS said...

I just had an experience today that I found quite discomfiting and depressing. I am offering it here in part as a means of ventilating. I brought my daughter’s car into a repair shop that I have patronized for many years. The owner, whom I will call Steve, is a very pleasant, affable man in his late 50s or early 60s. He knows that I am a liberal and we have never discussed politics. I have surmised he is a conservative, probably Republican. As I was waiting, I asked him if he had watched the previous night’s football game between the Lions and the Patriots (an upset – the Lions won). He indicated he no longer watches professional football because the NFL stands for the National Felons League. I asked if he was referring to the reports of domestic violence. He replied, no, that he had read somewhere that about 40% of professional football players have criminal records. In addition, he stated he did not care for the kneeling protests during the national anthem. He felt that was unfair to the patrons who pay money to watch a football game, not to be preached to about politics. I calmly indicated that I did not agree, but decided not to press the issue.

Then I decided to tread on more controversial territory. I asked him if, when Prof. Ford testifies on Thursday, she comes across as credible and rational, thereby making the accusation that Judge Kavanaugh attempted to rape her more likely true, would he regard this as sufficient to disqualify Kavanaugh as a S. Ct. Justice. Steve responded that we all have skeletons in our closets, which I acknowledged, but replied that I doubted that he had ever tried to rape anyone. He agreed that he had not, but he had his own peccadilloes. He then volunteered that he had voted for Trump. He said that Trump was a vast improvement over Obama and George W. Bush. He stated that he cold not vote for Hillary because she was the most corrupt, evil candidate he had ever seen – he mentioned Benghazi, the email server, etc. He indicated he could not support Bernie and asked me how I felt about socialism. I stated I had no problem with it, that it’s not the same as the tyrannical communism of Soviet Russia, and that part of the function of the government is to help its citizens. He stated that he does not want his government to be too friendly. (!) He then said that I probably thought Trump was the most evil candidate, and I responded that I did. I asked him how he felt about Trump’s talking about sexually assaulting women, and he sort of shrugged his shoulders. He indicated that he thought Trump was doing a great job. I did not get belligerent, did not argue with him, just calmly stated that I disagreed with him.

Now, Steve is not a redneck. I believe he has a college diploma. He is not an intellectual, but he is not stupid – he knows a lot about automobiles, more than I do, and they are complicated machines. I realized, however, that no matter how rational I was in responding to his opinions, there was no way I was going to change his mind. What bothered me was wondering how many people are there like that out there – for whom the use of rational arguments is futile and irrelevant. And I don’t think this is just a phenomenon of the Trump times. I believe it has always been this way. I am not naive – I practiced law for 37 years. I never took a plaintiff’s or criminal defendant’s case unless I was convinced that a rational analysis of the facts and law supported a favorable outcome. But I lost cases (I also won my share), both jury and non-jury, and always wondered why they did not get it – was the fault with my presentation? In Plato’s dialogues, Socrates’ rational arguments always carry the day – if recollection serves (Prof. Wolff, correct me if I am wrong), at the end of the dialogue Socrates always convinces his antagonist that Socrates’ rational argument is correct. Unfortunately, real life is not like that. Paraphrasing Wordsworth, “We lawyers (and philosophers) in our youth begin in gladness; but thereof come in the end despondency and madness.”

s. wallerstein said...


How many people are there like that out there--for whom the use of rational arguments is futile and irrelevant?

A whole lot.

If most people dealt with rational arguments, why would you and I, thousands of miles from each other, be talking (or debating) in this blog instead of conversing with the guy or girl hanging out on the next street corner? The answer which comes to me is because in this blog (and in some others) people who deal with rational arguments "meet" others who deal with rational arguments and our chances of running into someone who responds to and answers rational arguments rationally in society as a whole are very slim.

Howie said...

MS I can relate- there's a Trump lover in my gym named Joe- when it comes up we just joke about it.
It's hard because you think you're living in the same reality as people- but not really.
My guess for what it's worth is that it's a little bit of imagination but it's more a confidence that people have that they know how the world really works and how easy it is to see what you believe and read your biases into the world- plus people are emotionally motivated to see things as they do even with distortions- it's the same thing with racial prejudice- I'd put Trump supporting in that category- people have a sense of being violated or at least not respected and voila they have a set of deeply held false beliefs- Freud and Marx say a lot about it as do more mainstream analysts.
People are convinced they have the whole truth and nothing but the truth and that the whole world depends on it- I'm not sure how to deal with it myself all the time

MS said...

s. wallenstein and Howard Berman,

When I read or watch news reports about Trump’s supporters, I am reminded of a scene from one of my favorite movies, Serpico. Frank Serpico, brilliantly portrayed by Al Paciono, is an honest cop disgruntled with the corruption he is witnessing among his co-workers who are on the take, shaking down drug dealers for protection money. He has reported the corruption to his superiors, but nothing is being done to remedy the situation. He asks for transfers to different police precincts so that he can get away from the corruption, but wherever he transfer to, he sees the same corruption over and over again. He keeps reporting the corruption to his superiors, who keep telling him to be patient, that they are addressing the problem. In one scene, he is agonizing over his predicament. His girl friend asks him if he has heard the story about the wise king. Serpico responds, no, but I think I am about to hear it. She relates:

There was once a wise king who ruled over a vast city. He was feared for his might and loved for his wisdom. In the heart of the city, there was a well whose waters were pure and crystalline from which the king and all the inhabitants drank. When all were asleep, an enemy entered the city and poured drops of a strange liquid into the well. And he said that henceforth all who drink this water shall become mad.

All the people drank of the water, but not the king. And the people began to say, “The king is mad and has lost his reason. Look how strangely he behaves. We cannot be ruled by a madman, so he must be dethroned. The king grew very fearful, for his subjects were preparing to rise against him. So one evening, he ordered a goblet to be filled from the well, and he drank deeply. The next day, there was great rejoicing among the people, for their beloved king had finally regained his reason.

When I see videos of Trump’s rallies and his supporters wildly screaming his praises and responding enthusiastically to his lies, I wonder, where is the well that they have all drunk from?

David Palmeter said...


I think you've met up with tribalism in your repairman. It's a strange phenomenon, one that I don't really understand, but it boils down to a sense of belonging to something in a way that always requires an opponent. Thus, traditional conservative Republicans have opposed government debt and favored balanced budgets. Remember the the calls for a balanced budget amendment? But when "our" guy (Reagan, Bush II, Trump) runs a deficit the issue no longer is of any importance. They aren't moved by issues and analysis. Something more visceral is going on. Some kind of personal identification with a group that defines "us" and "them" is at work.

I have a friend who is a rabid Red Sox fan. I think he knows the shoe size of every player on the roster. I once asked him to imagine that the Red Sox and the Yankees had a complete trade--the owners, players, ticket takers, the whole ball of wax. Everybody associated with the Red Sox this year is a Yankee next year and vice versa. I asked him which team he would support. Without hesitation, and with complete seriousness, he said,"The Red Sox."

Look at the crowd at any sporting event. I think the underlying emotions that you see are related to your auto mechanic's political views as well as to my friend's love of the Red Sox.

MS said...



MS said...


You raise a valid point, comparing loyalty to political party to loyalty to sports teams. I have heard some commentators note that Trump has taken over control of the Republican Party and in the process has totally reversed their traditional policies – from opposition to Russia to rapprochement with Russia; from support of free trade to opposition to free trade. Many who support Trump regardless this reversal are expressing a habitual loyalty to the Republican Party – the substance of its policies are irrelevant. Their habitual loyalty to the Republican team gives them an identity and provides their lives stability – the details of the particular policies don’t matter.

When that loyalty is to a sports team, it is relatively innocuous. Rulers have frequently used sporting events to control and pacify their populace. Emperor Theodosius, for example, kept his citizens content, avoiding rebellion, by fostering loyalty among divergent religious factions to different chariot racing teams – the Blues and the Greens. Steve, my auto repairman, wants to enjoy his football without political distractions, as if he would prefer to deal with such issues when he is not watching football. The problem, of course, is that he does not want to confront these political issues even when he is not watching football. His annoyance with the kneeling protesters is a rationalization. The very point of the protests is to compel those who are complacent about the issue of police brutality to confront the issue, which they are avoiding in their daily lives, in the venue that they retreat to.

The innocuous loyalty to athletic teams is less innocuous, however, when it enters the political arena. We are taught to believe that education – its lessons in improving rational thinking – will yield dividends in improving society generally. John 8:32 teaches, “Then you will know the truth, and the truth will set you free.” The reason I referred to Plato’s dialogues in the earlier comment was that they foster a belief that, as with Socrates, rational argument, in the end, will always prevail. But in reality, even Socrates was forced to drink the hemlock. There are more educated people in the United States today who have college degrees than there ever have been - not just in gross numbers, but on a percentage basis. Yet many of them still voted for Trump, and continue to support him. In a comment to an earlier posting by Prof. Wolff, I Told You So, I mock Judge Kavanaugh’s fatuous defense against the accusations by Prof. Ford and Ms. Ramirez, that since he was a virgin when the events they accuse him of allegedly occurred, he could not have committed those acts. He is offering this defense because he is confident that a lot of people – even educated people – will think, “Yeah, that makes sense. He was a virgin, therefore his accusers are liars.”

Confronting these realities – the apparent futility of rational communication and debate – I despair for mankind. With nuclear weapons in the mix, the stakes are higher than ever. T.S. Eliot may have been only partially correct – it may all end with both a bang and a whimper.

Anonymous said...

"There are more educated people in the United States today who have college degrees than there ever have been - not just in gross numbers, but on a percentage basis. Yet many of them still voted for Trump, and continue to support him."

So what can be done about our education system?

Again, I think we go back to the problem of the context of a capitalist, consumption-based culture; everyone wants to study business and be a big shot.

decessero said...

As a point of basic civility, what do we think of individuals who feel compelled frequently to post comments (and this regardless of their merit, incidentally) which far far exceed the total length of their host's blog post? Would it not seem polite, perhaps, to invite to one's own blog site (even if that would mean setting up such a site) those interested in further discussion of a point rather removed from any made by the present host?

Anonymous said...

There could be an on going investigation into how the Russians acquired the material if counter intelligence officials believe the Russians had material outside of the known leaks. There could be something greater going on in which none of us will ever really know (possibly even President). The fact that Mueller can be used to reveal more information can also be beneficial.

s. wallerstein said...


If you've followed the comments threads over the past month of so, you'll see that I've argued with MS a lot, at times acrimoniously, with mutual insults. Our political positions are often quite different.

However, I see no problem with his lengthy comments. At times I just skim them, I confess. In general, I think that he tries to contribute to the discussion and debate in the blog and I note that as a debater, he plays by the rules, which is not always the case by any means online.

Anonymous said...

As some economist once said (at least the first time I heard it was from an economist: Ed Leemer? Ed Lazear?):

Believing is seeing

Jerry Brown said...

Decessero, in general, I would think it is not a good idea to post comments longer than the actual post being commented on. But there would exceptions to that. And, certainly in this case, Professor Wolff asked a question that he seemed to want an answer to or opinions on. Some answers are a lot longer than the question posed. But that's just my opinion, and the Professor knows how to deal with unwanted comments in any event.

MS said...

Thank you s. wallerstein and Jerry Brown for coming to my defense.

Correct, Jerry, my first two comments were in response to Prof. Wolff’s query about the legal requirements for proving a conspiracy. The subject is a bit complicated, and therefore required a lengthy response, one of which was in reply to another commenter’s view, which I believe was erroneous.

I believe that Decessero was annoyed by the number of my comments, particularly my off track comment about my disconcerting experience with the auto mechanic and his support of Trump, and my subsequent comments in response to others who commented on my comment. I acknowledged in the comment that I was disconcerted by the experience and was ventilating. but I wanted to get the perspectives of other readers regarding the Trump phenomenon and the limits of rational engagement. Decessero regards this as rude and he is certainly entitled to his opinion.

In a previous comment, s. wallerstein indicated that he regards the blog as a classroom, in which different students contribute some answers. Some of the students can act like know-it-all geeks.

I view the blog more like a cocktail party, where different interesting people remark on observations made by the host, and others contribute to the conversation by offering opinions on different subjects that may be only tangentially related to the host’s observation. .As at a cocktail party, if I am not interested in what the latter participants have to say, I walk away, i.e., skip over their comments. Unlike Decessero, I do not regard the latter as being rude. And some participants may be more loquacious, and perhaps louder, than others. That is part of the repartee. I would not recommend that the latter be kicked out of the party (unless, of course, they are attempting to rape one of the guests). In the case of a blog, moreover, all the previous posts and comments can be regarded as a long cocktail party. Sometimes, a current event may occur that is unrelated to the host’s immediate posting, but is related to previous posts and comments and a reader may feel it appropriate to submit a comment about that event to the current posting. Is my view in contravention of some blog protocol?

As I have indicated in a previous response to a critic, Prof. Wolff has my email address and can communicate to me if he thinks I have overstepped the proper boundaries. I would, of course, abide by anything he says.

RobinMcD said...

"Is my view in contravention of some blog protocol?"

Please clarify. Do you mean a [tacit, I suppose, for I don't recall ever seeing one stated] protocol on this particular blog? Or do you mean some sort of protocol respecting comments on blogs in general?

I doubt there is anything such as the latter. I guess this is both a conclusion arrived at from the empirical evidence drawn from reading too many comments in too many places, and a somewhat theoretical one since I cannot imagine how any such universal protocol could be arrived at.

Wrt this blog, having followed it for quite a number of years, I think it's true to say that long comments and long, multi-part comments have been unusual. I suppose one might refer to that as a protocol generated by customary usage? But perhaps RPW has a different view on all these matters, including whether he is comfortable with the notion that his blog is a kind of cocktail party, since [at least in my experience] nothing very serious is ever talked about at such parties?

MS said...


Since you asked what I meant by a “blog protocol,” I will address your question in a serious, unfacetious, manner. The definition of “protocol” on my online dictionary is: “the customs and regulations dealing with diplomatic formality, precedence, and etiquette.” So, a protocol consists in that combination of rules and customs that are expected to govern conduct in a particular context. The rules and customs can be either tacit, or written, or a combination thereof. The definition of “blog” is given as “a website containing a writer's or group of writers' own experiences, observations, opinions, etc., and often having images and links to other websites.”

This is Prof. Wolff’s blog, so he has a right to determine what rules and customs he expects to apply. On two occasions since I started regularly reading this blog in October of last year, Prof. Wolff, has, as far as I know, expressed two rules that he expects to be followed. First, that the comments not be rambunctious and remain civil. Second, that if one signs a comment as by “Anonymous” or “Unknown,” that the commenter not address the comment to another contributor by his/her specific name. In setting this rule, I did not understand Prof. Wolff to be equating the use of one’s initials, or a pseudonym, e.g., marcel proust, with signing as “Anonymous” or “Unknown.” The subjects that Prof. Wolff addresses in his postings set the tone of the blog, and, given his preeminence as a political philosopher of considerable note, they are generally of a serious nature and relate to issues of political philosophy, economic theory, and current political and social events. Occasionally he will make an observation of an amusing nature, but it usually, I believe, is intended to also make a serious point, for example, his observation regarding the condition of Donald Trump Jr.’s teeth, which, in a comment that I contributed, I interpreted as intended to be an observation about his father’s character/psychology.

Given the tone of the blog, I expect that Prof. Wolff contemplates that comments will be of a generally serious nature and intended to offer a substantive contribution to the conversation. Most of the contributors to this blog appear to be well educated, thoughtful individuals, among whom the blog is intended to facilitate an open exchange of ideas. Perhaps my use of a “cocktail party” as a metaphor was a bit too glib, but it was intended to convey an atmosphere wherein conversation is marked by uninhibited interactions among peers offering thoughtful, sometimes witty, points of view. The metaphor was also intended to convey the propensity of such conversations to sometimes go off into diverse directions. Moreover, frequently the same individual can make multiple substantive contributions to a conversation. I have attended both cocktail and other genre of parties in which such a meaningful exchange of ideas has occurred. I also believe that being civil does not rule out the use of sarcasm.

That being said, it seems to me that if one wants to encourage thoughtful, pensive contributions as comments, that a restriction on length is self-defeating. My experience is that the best analyses require lengthier exposition. That is not to say, surely, that length guarantees quality – nonsense can also take up a lot of space – but that, while brevity may be the soul of wit, it is not the soul of complex, persuasive analysis. I agree that the comment section of a blog is not the venue in which to advance a solution to the mind/body problem. But, as long as a comment restricts itself to the limits of the comment section (in the case of this blog, 4,096 characters), I believe that length should not be a disqualifying factor. In that regard, I have forsworn submitting multiple section essays as comments and have been making an earnest effort to confine my comments to the limitations of the comment section.

RobinMcD said...

Thank you for your clarifications. I'm relieved to see that my two suggestions concerning the nature of protocols are confirmed by your online dictionary. Other than that, I'd simply repeat that from my observations of this particular blog over the long term, comments have customarily been quite short.

I guess I'd also want to suggest that if we think of what goes on here as conversations initiated by RPW, conversation is usually encouraged when it seems to all concerned that everyone is allowing space to everyone else? That's to say, maybe for a good, mutually satisfying conversation interactions should be self-inhibited to some degree? As I understand it, though perhaps I err, listening to any one person's complex analysis isn't quite what conversation is about. [I'd excuse RPW's occasional lengthy initiating analyses here because he is inviting us to converse about some particular topic.] Isn't a complex analysis something one hopes will emerge out of a balanced conversation, a discovery that the participants to the conversation produce together and respecting which they can then claim some kind of common ownership?

MS said...


Boy oh boy, Robin, you’ve really got a bee in your bonnet.

The conversation that I allude to on the blog is not occurring in real time. If it were, and my speaking was so incessant that it prevented others from participating in the conversation, as you suggest, then, yes, I would agree that I was behaving like an egomaniacal, self-promoting cad.

But nothing I write prevents others from responding, as you have. Unlike a conversation in real time, the responses appear seriatim. As far as I am concerned, and I have not seen anything offered by Prof. Wolff that discourages this, the more readers who participate in the conversation by submitting comments the better – regardless whether they agree or disagree with my views. And, by the way, it is very gracious of you to “excuse RPW's occasional lengthy initiating analyses.” Since, after all, it his blog, it seems to me he does not have to obtain an excuse from you to do so – he can make his initiating analyses as long or as short as he pleases.

Have a good day.

Anonymous said...

Perhaps we have been shunted aside, or felt as though we were, by those presuming, entitled jocks, like Judge K, who now appears finished as a supreme court nominee. Having to wade past so much unnecessary argument reminds some of us of our forlorn former selves, waiting in vain for a chance to speak to whomever the jock was standing between and us--someone who in fact, would have nothing to do with us. Of course this is a blog. To express such an irritation is just as unnecessary as the volume of discursive digression that seems to have elicited it.

decessero said...

Get over yourselves, oh wordy ones, gain a sense of proportion and appropriateness, come home from the cocktail party, and let me assure you that the best writers (viz Professor Wolff) are the ones who manage brilliant clarity in fewer words.

David Palmeter said...

Why go on with this argument? If you aren't interested in a post, don't read it.

Jim said...

MS, et al:

Why is it that rational arguments in the real world (as opposed to Plato's world) hold no weight? For a partial answer to that question, I usually defer to Tolstoy:

"The most difficult subjects can be explained to the most slow-witted man if he has not formed any idea of them already; but the simplest thing cannot be made clear to the most intelligent man if he is firmly persuaded that he knows already, without a shadow of doubt, what is laid before him."
Leo Tolstoy, 1897

-- Jim

MS said...


Thank you for that quote.

It is somewhat similar to Mark Twain's observation, “It’s not what you don’t know that gets you into trouble. It’s what you do know that ain’t so.”

Another of my favorites: "The difference between stupidity and genius is that genius has its limits." Albert Einstein