If I were to engage in a critique of this theory, this would be my main argument:
Two of the main textual characteristics, the heavy use of hyphens and em dashes, are common in legal writing. So, by pointing out that the op-ed is written like that, and that Rosen's writing is like that, you've accomplished nothing. All you've shown is that the NYT op-ed author writes like a lawyer and so does Rosen.
I completely agree with this critique! Rosen is an extremely experienced and polished legal writer. His writing is clear and organized and effective. It follows the norms and conventions of legal writing, as it should for a senior partner at a major law firm.
The hyphens and em dashes are a major clue to authorship. They certainly don't prove it is Rosen, but Rosen's writings are definitely consistent with the op-ed. Rosen also has the history of writing op-eds, he is connected closely with a cabinet officer (25th amendment discussions), and his political beliefs line up perfectly with those expressed in the op-ed.
Today or tomorrow I will make a post about how the tone and attitude of the op-ed lines up with several sharp letters Rosen has written in the past and leaked to the press. This op-ed follows a pattern of using the press to indirectly push his viewpoint.
Friday, September 21, 2018
Thursday, September 20, 2018
What if it is Rosen? What if it's not Rosen?
This post is going to veer off into speculation a bit, but I'm also going to tackle the issue of how we can prove it's NOT Rosen.
If it IS Rosen, Coral Davenport of the New York Times may know it is Rosen. In fact, my completely off-the-wall pure speculation is that Davenport was Rosen's contact that the opinion page staff "trusted". So Rosen, who obviously was in touch with Davenport for this article, probably contacted her privately about potentially writing the op-ed. He gave her the op-ed, and then she passed it anonymously to the opinion page editors. Then after they decided they wanted to publish it, they communicated with Rosen directly to confirm his identity.
Rosen already had established a confidential relationship with Davenport, so it would make sense that he would contact her -- someone he trusted -- first
Proving It's NOT Rosen
One huge issue is whether someone involved with national security wrote the op-ed. I have assumed, from the first time I read it, that this wasn't the case. It just seems implausible to me that someone dealing with top secret information on a daily basis would open themselves up to potential blackmail like this. If it IS someone involved with national security, that person should resign immediately to remove the threat of being compromised.
The other huge issue is whether it was written by the administration official. There is no doubt it is written by someone who is an experienced and outstanding writer; the NYT editors made that point and it is clear from the text itself. That is one of the biggest clues that it might be Rosen, since he has a history of writing op-eds and is an excellent and clear writer.
However, it could easily be ghost-written by someone for an administration official. In fact, it's not impossible that Rosen is the ghost writer! Or it's possible that Rosen's writings were ghost written and that person actually wrote the op-ed. The most likely candidate there would be Brian Callanan, who co-authored a lengthy piece with Rosen, and who is currently Deputy General Counsel at U.S. Department of the Treasury. Callanan and Rosen are connected via Senator Rob Portman.
Analyzing Callanan's writings would be a good way to test the Rosen theory. Does Callanan, who was a co-author with Rosen, have stylistic things in common with the op-ed? Here is an example article he wrote recently. I don't see strong similarities, but I would be interested in other people's opinions.
The other way of looking at it is that the stylistic tendencies I have noted are just tendencies of people who do a lot of legal writing. The em dash and hyphenation may be examples of this. I do think that is partly the case. So if Rosen is not the correct candidate, it may be that looking for someone with a long history of legal writing would be a good starting point in any search.
Anyway, easy to speculate, but the above is just speculation. Intrepid reporters need to pick up the ball and follow these leads. Or, for all I know, they may have already ruled out Rosen and have leads in other directions.
Serious Research to Prove or Disprove the Rosen Case
I don't have the time or energy to do the research, but there are a few studies that would be helpful in nailing down things in a more scientific manner.
The first would be to collect 50 or 100 of the most recent NYT op-eds from outside contributors and to analyze those for stylistic cues. This might help determine which stylistic tendencies are due more to NYT copy editors and which to the original authors. It might also help elucidate how truly unique or common are the stylistic tendencies I have noted below.
Another test would be to examine the backgrounds of all of the Deputy Secretaries and similar officials to see which ones have a history of writing op-eds for themselves. The seemingly unique thing about Rosen is that he wrote op-eds by himself for no reason other than to express his opinion. They weren't done in an official capacity or directly related to his work. How many other officials have done that?
A third test would be to compare Rosen's writing in other contexts with other writing in similar publications. How unique is his writing style? Or is it just the style of someone who has been a law partner for decades?
I don't have the time or energy to do the research, but there are a few studies that would be helpful in nailing down things in a more scientific manner.
The first would be to collect 50 or 100 of the most recent NYT op-eds from outside contributors and to analyze those for stylistic cues. This might help determine which stylistic tendencies are due more to NYT copy editors and which to the original authors. It might also help elucidate how truly unique or common are the stylistic tendencies I have noted below.
Another test would be to examine the backgrounds of all of the Deputy Secretaries and similar officials to see which ones have a history of writing op-eds for themselves. The seemingly unique thing about Rosen is that he wrote op-eds by himself for no reason other than to express his opinion. They weren't done in an official capacity or directly related to his work. How many other officials have done that?
A third test would be to compare Rosen's writing in other contexts with other writing in similar publications. How unique is his writing style? Or is it just the style of someone who has been a law partner for decades?
Paragraphs that begin with a colon
Looking at punctuation is difficult because copy editors freely change punctuation, adding or removing it to obscure the author's original intent.
There are many uses of the colon in the op-ed that parallel uses in Rosen's writings, but they are not particularly distinctive. However, there is one use of a colon in the op-ed I think is worth paying attention to. In this usage, a paragraph begins with a short phrase followed by a colon:
Take foreign policy: In public and in private, President Trump shows a preference for autocrats and dictators
The National Affairs article has a paragraph with a very similar beginning:
Here is how it would work: A regulatory-budgeting process would involve multiple steps, analogous to the fiscal-budget process.
As does a blog post:
Another interesting wrinkle: As with the earlier NLRB rule, the EPA rules that are the subject of the resolutions of disapproval
As does Rosen's prepared remarks for the Transportation Committee:
Amtrak, however, presents all of us with a problem: Amtrak’s revenues from ticket sales this year will not cover even 50%
Another sentence in National Affairs article is noteworthy:
The answer is nothing: No such budget exists.
Because it parallels so closely a sentence in the op-ed:
I would know. I am one of them.
There are many uses of the colon in the op-ed that parallel uses in Rosen's writings, but they are not particularly distinctive. However, there is one use of a colon in the op-ed I think is worth paying attention to. In this usage, a paragraph begins with a short phrase followed by a colon:
Take foreign policy: In public and in private, President Trump shows a preference for autocrats and dictators
The National Affairs article has a paragraph with a very similar beginning:
Here is how it would work: A regulatory-budgeting process would involve multiple steps, analogous to the fiscal-budget process.
As does a blog post:
Another interesting wrinkle: As with the earlier NLRB rule, the EPA rules that are the subject of the resolutions of disapproval
As does Rosen's prepared remarks for the Transportation Committee:
Amtrak, however, presents all of us with a problem: Amtrak’s revenues from ticket sales this year will not cover even 50%
Another sentence in National Affairs article is noteworthy:
The answer is nothing: No such budget exists.
Because it parallels so closely a sentence in the op-ed:
I would know. I am one of them.
Thursday, September 13, 2018
Em Dashes
The NYT Op-Ed includes many examples of em dashes. This is not unusual in editorials and could also be a reflection of New York Times style as much as the author's original intent.
However, there are strong similarities between the use of em dashes in the editorial and in Rosen's other writings. Rosen frequently and liberally uses em dashes, both in his legal and popular writing. I don't think there is any point in trying to make an exhaustive catalog of examples. I could produce dozens here. But I will provide some illustrative examples below, of ones that are similar to the examples in the NYT Op-Ed. First, all of the uses in the Op-Ed:
The dilemma — which he does not fully grasp — is that many of the senior officials
But these successes have come despite — not because of — the president’s leadership style
But his national security team knew better — such actions had to be taken, to hold Moscow accountable.
So we will do what we can to steer the administration in the right direction until — one way or another — it’s over.
But we will always have his example — a lodestar for restoring honor to public life and our national dialogue.
Here are a few of many examples from the National Affairs article:
it is important that the budget caps apply to costs — not to benefits — just as with the fiscal budget.
The second key challenge is ensuring the reliability and integrity of the costs — and enforcing the application of the budget caps to them.
The enormous volume of existing rules — and the costs they already impose — will also need to be considered.
Here are some examples from his prepared testimony for the Department of Transportation
If one looks only at NEC train operations -- separate from the heavily subsidized NEC infrastructure -- this is the one area
Amtrak’s fifteen long-distance trains have seen declining revenues and ridership -- and increasing costs -- over the last ten years.
we provide intercity passenger rail service in this country -- a single, nationwide monopoly called Amtrak -- is unworkable and is not adequately positioned
better off with Amtrak able to focus on one thing -- operating trains -- and doing it well.
Here are some examples from his amicus brief:
a threat to First Amendment rights in another vital context -- our Nation's public universities.
the cost of self-censorship -- particularly in the university context -- simply cannot be overstated
the first amendment protections applies to campus speech -- irrespective of the identity or cause of the speaker
In reality, requiring -- as the Sixth Circuit did below -- that plaintiffs must prove
and from another amicus brief:
Ordinary meaning is therefore informed by — but different from — a pure dictionary definition.
retain not only its records but its entire inventory — not just samples for testing — for the duration
However, there are strong similarities between the use of em dashes in the editorial and in Rosen's other writings. Rosen frequently and liberally uses em dashes, both in his legal and popular writing. I don't think there is any point in trying to make an exhaustive catalog of examples. I could produce dozens here. But I will provide some illustrative examples below, of ones that are similar to the examples in the NYT Op-Ed. First, all of the uses in the Op-Ed:
The dilemma — which he does not fully grasp — is that many of the senior officials
But these successes have come despite — not because of — the president’s leadership style
But his national security team knew better — such actions had to be taken, to hold Moscow accountable.
So we will do what we can to steer the administration in the right direction until — one way or another — it’s over.
But we will always have his example — a lodestar for restoring honor to public life and our national dialogue.
Here are a few of many examples from the National Affairs article:
it is important that the budget caps apply to costs — not to benefits — just as with the fiscal budget.
The second key challenge is ensuring the reliability and integrity of the costs — and enforcing the application of the budget caps to them.
The enormous volume of existing rules — and the costs they already impose — will also need to be considered.
Here are some examples from his prepared testimony for the Department of Transportation
If one looks only at NEC train operations -- separate from the heavily subsidized NEC infrastructure -- this is the one area
Amtrak’s fifteen long-distance trains have seen declining revenues and ridership -- and increasing costs -- over the last ten years.
we provide intercity passenger rail service in this country -- a single, nationwide monopoly called Amtrak -- is unworkable and is not adequately positioned
better off with Amtrak able to focus on one thing -- operating trains -- and doing it well.
Here are some examples from his amicus brief:
a threat to First Amendment rights in another vital context -- our Nation's public universities.
the cost of self-censorship -- particularly in the university context -- simply cannot be overstated
the first amendment protections applies to campus speech -- irrespective of the identity or cause of the speaker
In reality, requiring -- as the Sixth Circuit did below -- that plaintiffs must prove
and from another amicus brief:
Ordinary meaning is therefore informed by — but different from — a pure dictionary definition.
retain not only its records but its entire inventory — not just samples for testing — for the duration
Creative Use of Hyphenation
There are several hyphenated phrases in the New York Times op-ed. Here is a list, with their frequency as judged by the Corpus of Contemporary American English. Many are common hyphenated phrases, but others are unusual.
near-ceaseless 0
mass-marketing 20
anti-trade 35
two-track 132
ill-informed 178
anti-democratic 229
half-baked 242
like-minded 1079
so-called 19081
This list, in and of itself, does not prove authorship. The number of hyphenated phrases isn't that unusual and their uniqueness isn't either. However, it does suggest a certain stylistic tendency not found in most writers. In many cases, Rosen will use a hyphen where another writer would simply put a space.
I want to highlight the use of "so-called" from the op-ed which also appears extremely regularly in Rosen's writing. It is a very common phrase, as the table above shows, but it is still noteworthy since he uses it so often. Here is the example from the op-ed:
This isn’t the work of the so-called deep state.
Two other uses of hyphens, "near-ceaseless" and "mass-marketing" strike me as noteworthy. Most people would not use hyphens in these cases, and I also don't believe that a copy editor would insert them. So it seems likely that the author wrote them this way initially and they were published as-is.
There are bright spots that the near-ceaseless negative coverage of the administration fails to capture
In addition to his mass-marketing of the notion that the press is the “enemy of the people,”
Jeffrey A. Rosen does tend to make very creative use of hyphens in his other writing, often in a playful manner. It is a strong stylistic tendency as I will demonstrate below.
In this article, Rosen makes creative, almost-humorous use of hyphens. The Hill - Fishing for a reason to regulate
Respondents were also asked how much they might imagine paying to improve the “condition of aquatic ecosystems” from “48 percent pristine” to “50 percent pristine” — for those who know what a 2 percent increase in pristine-ness looks like.
These sponsor-a-fish questions suggested that a couple bucks could save millions of tiny fish
so-called “fiscal cliff”
Democrat-controlled Senate
first-term level
first-term spending hike
This op-ed, written in support of Rosen's patron Senator Rob Portman, has some novel hyphenated usages as well. Cincinnati Enquirer - Rein on Federal Regulations will only benefit economy
building economic reality-checks into the process
consistent use of a cost-benefit standard
Portman-Pryor plan
a billion-dollar impact
This article has fewer hyphens, but it has another use of so-called followed by a scare quote, as shown above. The Hill - Obama's spending ideas unbalanced:
so-called “grand bargain”
trillion-dollar spending increases
In his amicus brief to the supreme court, Rosen uses some aggressive hyphens (a Google search doesn't show these as commonly hyphenated phrases) as well as "so-called" in the same manner as it was used in the op-ed:
so-called "false" political speech
protection of the very free-expression rights
this erroneous threat-of-future-injury standard
also a cramped "threat-of-harm" analysis
In Rosen's article for National Affairs there are many examples of exuberant hyphenation, including another two examples of "so-called" and an example of "like-minded" which also appears in the op-ed:
Perhaps that is because so-called "command and control" requirements
spending programs, taxes, and so-called "tax expenditures"
presumably like-minded appointees
changes to federal-agency rulemaking
issue once-unthinkable new rules
impacts of regulatory-policy decisions
each regulatory-agency head
two EPA greenhouse-gas regulations
joint legislative-executive budget process
It's also interesting to note that Rosen used the phrase "so-called [SCARE QUOTE TERM]" in his spoken response to a question at his confirmation hearing:
The administration campaigned on a reordering of priorities, and at least the way I perceive it, the so-called ``skinny budget'' that was released is sending the message about some reordered priorities
This prepared statement to a House committee by Rosen uses hyphens extensively, often in common legal usage, but also often in cases where many writers would not include a hyphen. Note the "so-called":
the so-called Bumpers Amendment
now-Justice Elena Kagan
now-revoked Executive Order
well-settled within the Executive Branch
all-too-real concern
little effect on the decision-making process
Rosen's amicus brief for the Chamber of Commerce is especially hyphen-heavy. Note "three-element list" which is similar to "two-track presidency" from the op-ed and "first-term spending hike" referenced above:
The legislative history of Sarbanes-Oxley confirms that Congress’s evidence-preservation objective was always confined to financial records.
Section 1519’s penalty-enhancing purpose
the interpretation of “tangible objects” as a reference to the ever-expanding universe of devices that store electronic records.
interpretation of the statute have used Section 1519 to reach an array of evidence-destroying
The government’s inability to identify courts outside the Eleventh Circuit that construe Section 1519 to reach non-record-keeping contraband is telling. conduct
Sarbanes-Oxley can accomplish its investor-protection purpose without becoming another all-purpose anti-spoliation statute.
“tangible object” — is the final item in a three-element list
near-ceaseless 0
mass-marketing 20
anti-trade 35
two-track 132
ill-informed 178
anti-democratic 229
half-baked 242
like-minded 1079
so-called 19081
This list, in and of itself, does not prove authorship. The number of hyphenated phrases isn't that unusual and their uniqueness isn't either. However, it does suggest a certain stylistic tendency not found in most writers. In many cases, Rosen will use a hyphen where another writer would simply put a space.
I want to highlight the use of "so-called" from the op-ed which also appears extremely regularly in Rosen's writing. It is a very common phrase, as the table above shows, but it is still noteworthy since he uses it so often. Here is the example from the op-ed:
This isn’t the work of the so-called deep state.
Two other uses of hyphens, "near-ceaseless" and "mass-marketing" strike me as noteworthy. Most people would not use hyphens in these cases, and I also don't believe that a copy editor would insert them. So it seems likely that the author wrote them this way initially and they were published as-is.
There are bright spots that the near-ceaseless negative coverage of the administration fails to capture
In addition to his mass-marketing of the notion that the press is the “enemy of the people,”
Jeffrey A. Rosen does tend to make very creative use of hyphens in his other writing, often in a playful manner. It is a strong stylistic tendency as I will demonstrate below.
In this article, Rosen makes creative, almost-humorous use of hyphens. The Hill - Fishing for a reason to regulate
Respondents were also asked how much they might imagine paying to improve the “condition of aquatic ecosystems” from “48 percent pristine” to “50 percent pristine” — for those who know what a 2 percent increase in pristine-ness looks like.
These sponsor-a-fish questions suggested that a couple bucks could save millions of tiny fish
so-called “fiscal cliff”
Democrat-controlled Senate
first-term level
first-term spending hike
This op-ed, written in support of Rosen's patron Senator Rob Portman, has some novel hyphenated usages as well. Cincinnati Enquirer - Rein on Federal Regulations will only benefit economy
building economic reality-checks into the process
consistent use of a cost-benefit standard
Portman-Pryor plan
a billion-dollar impact
This article has fewer hyphens, but it has another use of so-called followed by a scare quote, as shown above. The Hill - Obama's spending ideas unbalanced:
so-called “grand bargain”
trillion-dollar spending increases
In his amicus brief to the supreme court, Rosen uses some aggressive hyphens (a Google search doesn't show these as commonly hyphenated phrases) as well as "so-called" in the same manner as it was used in the op-ed:
so-called "false" political speech
protection of the very free-expression rights
this erroneous threat-of-future-injury standard
also a cramped "threat-of-harm" analysis
In Rosen's article for National Affairs there are many examples of exuberant hyphenation, including another two examples of "so-called" and an example of "like-minded" which also appears in the op-ed:
Perhaps that is because so-called "command and control" requirements
spending programs, taxes, and so-called "tax expenditures"
presumably like-minded appointees
changes to federal-agency rulemaking
issue once-unthinkable new rules
impacts of regulatory-policy decisions
each regulatory-agency head
two EPA greenhouse-gas regulations
joint legislative-executive budget process
It's also interesting to note that Rosen used the phrase "so-called [SCARE QUOTE TERM]" in his spoken response to a question at his confirmation hearing:
The administration campaigned on a reordering of priorities, and at least the way I perceive it, the so-called ``skinny budget'' that was released is sending the message about some reordered priorities
This prepared statement to a House committee by Rosen uses hyphens extensively, often in common legal usage, but also often in cases where many writers would not include a hyphen. Note the "so-called":
the so-called Bumpers Amendment
now-Justice Elena Kagan
now-revoked Executive Order
well-settled within the Executive Branch
all-too-real concern
little effect on the decision-making process
Rosen's amicus brief for the Chamber of Commerce is especially hyphen-heavy. Note "three-element list" which is similar to "two-track presidency" from the op-ed and "first-term spending hike" referenced above:
The legislative history of Sarbanes-Oxley confirms that Congress’s evidence-preservation objective was always confined to financial records.
Section 1519’s penalty-enhancing purpose
the interpretation of “tangible objects” as a reference to the ever-expanding universe of devices that store electronic records.
interpretation of the statute have used Section 1519 to reach an array of evidence-destroying
The government’s inability to identify courts outside the Eleventh Circuit that construe Section 1519 to reach non-record-keeping contraband is telling. conduct
Sarbanes-Oxley can accomplish its investor-protection purpose without becoming another all-purpose anti-spoliation statute.
“tangible object” — is the final item in a three-element list
Wednesday, September 12, 2018
De-regulation and the Brett Kavanaugh Connection
In the Op-Ed, the author cites some of Trump's successes:
"Don’t get me wrong. There are bright spots that the near-ceaseless negative coverage of the administration fails to capture: effective deregulation, historic tax reform, a more robust military and more."
The first on the list is deregulation. That, quite literally, the main passion of Jeffrey A. Rosen's life. He has essentially devoted his life, personally and professionally, to deregulation. It's how he made his fortune, representing companies in regulatory issues. So it's only fitting that he would list this first.
However, there is something conspicuously absent from this list. Judicial appointments. For mainstream conservatives, as the NYT Op-Ed writer obviously is, that's the #1 success story of the administration. Why is it left out?
Brett Kavanaugh and Jeffrey A. Rosen were both partners at Kirkland & Ellis at the same time!
So, Rosen and Kavanaugh must know each other extremely well. Rosen was also appointed, though not confirmed, for a federal judgeship himself. He also is a contributor of the Federalist Society.
My theory? Rosen felt that mentioning the courts would call attention to him, giving a hint to his background. He also might have felt that it would be inappropriate for him to comment about it in the op-ed with the Kavanaugh confirmation pending, since he has such a close connection to Kavanaugh.
"Don’t get me wrong. There are bright spots that the near-ceaseless negative coverage of the administration fails to capture: effective deregulation, historic tax reform, a more robust military and more."
The first on the list is deregulation. That, quite literally, the main passion of Jeffrey A. Rosen's life. He has essentially devoted his life, personally and professionally, to deregulation. It's how he made his fortune, representing companies in regulatory issues. So it's only fitting that he would list this first.
However, there is something conspicuously absent from this list. Judicial appointments. For mainstream conservatives, as the NYT Op-Ed writer obviously is, that's the #1 success story of the administration. Why is it left out?
Brett Kavanaugh and Jeffrey A. Rosen were both partners at Kirkland & Ellis at the same time!
So, Rosen and Kavanaugh must know each other extremely well. Rosen was also appointed, though not confirmed, for a federal judgeship himself. He also is a contributor of the Federalist Society.
My theory? Rosen felt that mentioning the courts would call attention to him, giving a hint to his background. He also might have felt that it would be inappropriate for him to comment about it in the op-ed with the Kavanaugh confirmation pending, since he has such a close connection to Kavanaugh.
Parallels Between Rosen's Confirmation Statement and NYT Op-Ed
There is an interesting similarity between the final paragraph of the statement Rosen gave at his confirmation hearing [emphasis added]:
So having traveled this road heightens how much I
appreciate our unique country, and it makes me care deeply
about our future, and that's why I want to do this. If I'm
confirmed, I see this nomination as an opportunity to make a
meaningful contribution to something that impacts the daily
lives of every single American. And, indeed, if I am confirmed,
I would welcome the chance to work with all of you to help
rebuild, refurbish, and revitalize America's transportation
system to enable the mobility and the connectivity that
Americans need so that our economy can continue to grow and
enhance the quality of life for all Americans.
and the final paragraphs of the NYT op-ed:
Senator John McCain put it best in his farewell letter. All Americans should heed his words and break free of the tribalism trap, with the high aim of uniting through our shared values and love of this great nation...
There is a quiet resistance within the administration of people choosing to put country first. But the real difference will be made by everyday citizens rising above politics, reaching across the aisle and resolving to shed the labels in favor of a single one: Americans.
Updated 9/13/2018
In Rosen's prepared statement before the house judiciary committee, he expresses a similar sentiment at the end of his statement. This seems to be a standard way he wraps up things:
The RAA would represent an important advance for administrative law and regulatory practice, and would therefore benefit Americans from all walks of life, as well as our overall national economy
So having traveled this road heightens how much I
appreciate our unique country, and it makes me care deeply
about our future, and that's why I want to do this. If I'm
confirmed, I see this nomination as an opportunity to make a
meaningful contribution to something that impacts the daily
lives of every single American. And, indeed, if I am confirmed,
I would welcome the chance to work with all of you to help
rebuild, refurbish, and revitalize America's transportation
system to enable the mobility and the connectivity that
Americans need so that our economy can continue to grow and
enhance the quality of life for all Americans.
and the final paragraphs of the NYT op-ed:
Senator John McCain put it best in his farewell letter. All Americans should heed his words and break free of the tribalism trap, with the high aim of uniting through our shared values and love of this great nation...
There is a quiet resistance within the administration of people choosing to put country first. But the real difference will be made by everyday citizens rising above politics, reaching across the aisle and resolving to shed the labels in favor of a single one: Americans.
Updated 9/13/2018
In Rosen's prepared statement before the house judiciary committee, he expresses a similar sentiment at the end of his statement. This seems to be a standard way he wraps up things:
The RAA would represent an important advance for administrative law and regulatory practice, and would therefore benefit Americans from all walks of life, as well as our overall national economy
NYT Article that LITERALLY IDENTIFIES ROSEN AS A SENIOR ADMINISTRATION OFFICIAL
The New York Times described the author of the anonymous op-ed as a "senior official in the Trump administration".
This July 27, 2018 article by Coral Davenport literally characterizes Jeffrey A. Rosen as a "senior administration official":
"Senior administration officials are clashing over President Trump’s plan to roll back a major environmental rule and let cars emit more tailpipe pollution"
The article goes on to talk about Rosen's involvement in the dispute and its delays:
"The proposal, which is to be jointly released by the E.P.A. and the Transportation Department, was largely completed in May. It was sent by both agencies to the White House for review, after which it was expected to be published in June or early July in the Federal Register, a major step in formalizing a new regulation."
It is interesting to compare this article to this passage in the anonymous op-ed, which talks about a recently exasperated administration official. Perhaps this is a reference to the dispute:
“There is literally no telling whether he might change his mind from one minute to the next,” a top official complained to me recently, exasperated by an Oval Office meeting at which the president flip-flopped on a major policy decision he’d made only a week earlier.
This July 27, 2018 article by Coral Davenport literally characterizes Jeffrey A. Rosen as a "senior administration official":
"Senior administration officials are clashing over President Trump’s plan to roll back a major environmental rule and let cars emit more tailpipe pollution"
The article goes on to talk about Rosen's involvement in the dispute and its delays:
"The proposal, which is to be jointly released by the E.P.A. and the Transportation Department, was largely completed in May. It was sent by both agencies to the White House for review, after which it was expected to be published in June or early July in the Federal Register, a major step in formalizing a new regulation."
It is interesting to compare this article to this passage in the anonymous op-ed, which talks about a recently exasperated administration official. Perhaps this is a reference to the dispute:
“There is literally no telling whether he might change his mind from one minute to the next,” a top official complained to me recently, exasperated by an Oval Office meeting at which the president flip-flopped on a major policy decision he’d made only a week earlier.
"First Principles"
Many people have commented on the op-ed's use of the phrase "first principles." This is a common phrase in conservative and libertarian writing. Its use, in and of itself, doesn't suggest authorship.
However, an amicus brief to the Supreme Court, apparently written by Rosen, does include the phrase twice:
"Indeed, it is these very values that often lead to court decisions quashing exercises of censorial power that violate the first principles undergirding our constitutional republic."
"Such a rule would reaffirm this Court's robust protection of the very free-expression rights that in many ways can be said to be the first principle underlying our constitutional experiment in democracy."
[Note, the second quote includes an odd hyphenation, "free-expression rights", a stylistic feature I noted in the NYT op-ed.]
UPDATE 9/13/2018:
Jeffrey A. Rosen uses the term "first principles" in his column from the Summer 2016 issue of Administrative & Regulatory Law News:
And that, perhaps, is a reminder that the Section usefully takes us back to first principles on occasion.
However, an amicus brief to the Supreme Court, apparently written by Rosen, does include the phrase twice:
"Indeed, it is these very values that often lead to court decisions quashing exercises of censorial power that violate the first principles undergirding our constitutional republic."
"Such a rule would reaffirm this Court's robust protection of the very free-expression rights that in many ways can be said to be the first principle underlying our constitutional experiment in democracy."
[Note, the second quote includes an odd hyphenation, "free-expression rights", a stylistic feature I noted in the NYT op-ed.]
UPDATE 9/13/2018:
Jeffrey A. Rosen uses the term "first principles" in his column from the Summer 2016 issue of Administrative & Regulatory Law News:
And that, perhaps, is a reminder that the Section usefully takes us back to first principles on occasion.
The Train Connection
The op-ed has two completely separate metaphors about train tracks that are in-line with Rosen's background and recent experience:
“Meetings with him veer off topic and off the rails” (minor metaphor)
“The result is a two-track presidency.” (a major metaphor of the op-ed)
Rosen was on the board of directors of Amtrak and currently and previously worked for the Department of Transportation.
Interestingly, in February 2018, Rosen criticized Chuck Schumer in reference to a train derailment (Daily Caller) (The Hill):
"Rosen specifically criticized Schumer’s December objection to Batory’s confirmation, which occurred in the immediate aftermath of the tragic Washington State Amtrak derailment that resulted in three dead, 70 injured, and cost over $40 million in repairs."
In the letter he also made some interesting comments about leadership which could be read as a dig at Trump:
“Any organization that has a strong leader at the top benefits from the leadership. I don’t think anybody can point to any organization that doesn’t benefit from a knowledgeable expert leading the organization in a capable way,” Rosen said.
Stylistic Similarities Between Rosen's Recent Article and the Op-Ed
It is an extreme challenge to analyze the style of the op-ed to determine its author. For one thing, we have no idea if the op-ed was ghost-written or heavily edited by someone else before submission to the New York Times. We also have no idea how much the author tried to disguise his identity by altering his normal style.
I will argue here that a clean reading of the op-ed, with no assumptions, shows a few stylistic tendencies. I will then take Rosen's most recent article, Putting Regulators on a Budget (2016) and show how those same tendencies are demonstrated. In some cases I will also pull examples from Rosen's other writings.
This by no means proves the authorship of the op-ed. I am not a forensic linguist, and forensic linguistics isn't a developed science in any case. But some of the similarities are striking.
Use of Unusual Hyphenated Phrases
NA=National Affairs and NYT=New York Times
NA: "macroeconomic impacts of regulatory-policy decisions"
NA: "at a regulatory-budget process "
NA: "it would improve priority-setting "
NA: “and agency-by-agency limits”
NA: “current administration has discerned novel ways to issue once-unthinkable new rules”
NYT: "two-track presidency"
NYT: "near-ceaseless negative coverage"
NYT: “his mass-marketing of the notion”
Another example from a court filing:
"reaffirm this Court's robust protection of the very free-expression rights"
Curt Sentences with a Chatty Style
NA: "The answer is nothing: No such budget exists."
NA: “So what is to be done? How can government agencies”
NYT: "I would know. I am one of them."
NYT: "Don’t get me wrong. There are bright spots that the near-ceaseless "
Liberal Use of Em Dashes
NA: “The enormous volume of existing rules — and the costs they
already impose — will also need to be considered.”
NA: “it is important that the budget caps apply to costs — not to benefits — just as with the fiscal budget.”
NYT: “But these successes have come despite — not because of — the president’s leadership style”
NYT: The dilemma — which he does not fully grasp — is that many of the senior officials in his own administration”
NYT: "So we will do what we can to steer the administration in the right direction until — one way or another — it’s over."
Beginning a Paragraph with a Short Phrase Followed by a Colon
NA: "Here is how it would work: A regulatory-budgeting process would involve multiple steps, analogous to the fiscal-budget process."
NYT: "Take foreign policy: In public and in private, President Trump shows a preference for autocrats and dictators"
Another example from a blog post:
“Another interesting wrinkle: As with the earlier NLRB rule,”
Note, the National Affairs article uses an unusual number of scare quotes, as does most of Rosen’s other writing. This is not shown in the NYT article much, except in this case: “To be clear, ours is not the popular “resistance” of the left.”
I will argue here that a clean reading of the op-ed, with no assumptions, shows a few stylistic tendencies. I will then take Rosen's most recent article, Putting Regulators on a Budget (2016) and show how those same tendencies are demonstrated. In some cases I will also pull examples from Rosen's other writings.
This by no means proves the authorship of the op-ed. I am not a forensic linguist, and forensic linguistics isn't a developed science in any case. But some of the similarities are striking.
Use of Unusual Hyphenated Phrases
NA=National Affairs and NYT=New York Times
NA: "macroeconomic impacts of regulatory-policy decisions"
NA: "at a regulatory-budget process "
NA: "it would improve priority-setting "
NA: “and agency-by-agency limits”
NA: “current administration has discerned novel ways to issue once-unthinkable new rules”
NYT: "two-track presidency"
NYT: "near-ceaseless negative coverage"
NYT: “his mass-marketing of the notion”
Another example from a court filing:
"reaffirm this Court's robust protection of the very free-expression rights"
Curt Sentences with a Chatty Style
NA: "The answer is nothing: No such budget exists."
NA: “So what is to be done? How can government agencies”
NYT: "I would know. I am one of them."
NYT: "Don’t get me wrong. There are bright spots that the near-ceaseless "
Liberal Use of Em Dashes
NA: “The enormous volume of existing rules — and the costs they
already impose — will also need to be considered.”
NA: “it is important that the budget caps apply to costs — not to benefits — just as with the fiscal budget.”
NYT: “But these successes have come despite — not because of — the president’s leadership style”
NYT: The dilemma — which he does not fully grasp — is that many of the senior officials in his own administration”
NYT: "So we will do what we can to steer the administration in the right direction until — one way or another — it’s over."
Beginning a Paragraph with a Short Phrase Followed by a Colon
NA: "Here is how it would work: A regulatory-budgeting process would involve multiple steps, analogous to the fiscal-budget process."
NYT: "Take foreign policy: In public and in private, President Trump shows a preference for autocrats and dictators"
Another example from a blog post:
“Another interesting wrinkle: As with the earlier NLRB rule,”
Note, the National Affairs article uses an unusual number of scare quotes, as does most of Rosen’s other writing. This is not shown in the NYT article much, except in this case: “To be clear, ours is not the popular “resistance” of the left.”
Rosen's History of Writing Op-Eds
From 2009-2013, Rosen wrote over a dozen op-eds for both print and online publications. (Source: [Senate Hearing 115-217]). It makes sense that he would choose the form of the op-ed, something he has a lot of experience writing, through which to express himself.
On the New York Times podcast, they mention how surprised they were to receive his op-ed to see how well it was written.
1. Fishing for a Reason to Regulate, The Hill online (April 10, 2013)
2. President Needs to Get Serious About Spending Cuts; The Hill (December 20, 2012)
3. 2008 Obama Would Like Ryan Budget,' Des Moines Register p.13A (August 30, 2012)
4. The 2012 Budget Surplus That Disappeared, National Review Online (December 14, 2011)
5. Rein on Federal Regulations Will Only Benefit Economy, Cincinnati Enquirer (November 9, 2011)
6. Obama's Spending Ideas Unbalanced, The Hill Op-Ed p. 20 (September 28, 2011)''
7. Who Checks the Fact Checker? National Review Online (September 16, 2011)
8. Costly Federal Regulations Escape Congressional Approval, Atlanta Journal Constitution (September 1, 2010)
9. Major Rules Deserve a Vote, Baltimore Sun Op-Ed, p. 13 (August 10, 2010)
10. Obama vs. the Regulators, The Washington Post Op-Ed (August 6, 2009)
11. Watch for Hidden Taxes, Boston Globe Op-Ed (June 12, 2009)
12. Obama Regulations are Taxing Consumers, Washington Business Journal (June 12, 2009)
During that period, he was also a contributor to "National Journal's online experts' blog series for transportation topics, with eight postings."
It is interesting to note that even though he wrote an op-ed for the Washington Post and several other newspapers, he never wrote one for The New York Times. It would make sense, in an effort to hide his identity, to write for a publication he'd never written for before.
For comparison, Deputy Secretary of State John J, Sullivan, another proposed author for the anonymous op-ed, is also a distinguished attorney. However, this are his limited writings all before 2000 (no op-eds):
"Federal Preemption: Two Renditions of Fundamental Theme,'' Inside Litigation (Oct. 1998)
"Appeals to the Supreme Court,'' Business and Commercial Litigation in Federal Courts (West 1998)
"Supreme Court Bypasses Airbag Preemption Case,''
Legal Opinion Letter, Washington Legal Foundation (1996)
"The Equal Access to Justice Act in the Federal Courts,'' 84 Colum. L. Rev. 1089 (1984)
Speech at the 2007 Ambassador's IPR Roundtable: IPR Protection, Beijing, China (Oct. 23, 2007)
On the New York Times podcast, they mention how surprised they were to receive his op-ed to see how well it was written.
1. Fishing for a Reason to Regulate, The Hill online (April 10, 2013)
2. President Needs to Get Serious About Spending Cuts; The Hill (December 20, 2012)
3. 2008 Obama Would Like Ryan Budget,' Des Moines Register p.13A (August 30, 2012)
4. The 2012 Budget Surplus That Disappeared, National Review Online (December 14, 2011)
5. Rein on Federal Regulations Will Only Benefit Economy, Cincinnati Enquirer (November 9, 2011)
6. Obama's Spending Ideas Unbalanced, The Hill Op-Ed p. 20 (September 28, 2011)''
7. Who Checks the Fact Checker? National Review Online (September 16, 2011)
8. Costly Federal Regulations Escape Congressional Approval, Atlanta Journal Constitution (September 1, 2010)
9. Major Rules Deserve a Vote, Baltimore Sun Op-Ed, p. 13 (August 10, 2010)
10. Obama vs. the Regulators, The Washington Post Op-Ed (August 6, 2009)
11. Watch for Hidden Taxes, Boston Globe Op-Ed (June 12, 2009)
12. Obama Regulations are Taxing Consumers, Washington Business Journal (June 12, 2009)
During that period, he was also a contributor to "National Journal's online experts' blog series for transportation topics, with eight postings."
It is interesting to note that even though he wrote an op-ed for the Washington Post and several other newspapers, he never wrote one for The New York Times. It would make sense, in an effort to hide his identity, to write for a publication he'd never written for before.
For comparison, Deputy Secretary of State John J, Sullivan, another proposed author for the anonymous op-ed, is also a distinguished attorney. However, this are his limited writings all before 2000 (no op-eds):
"Federal Preemption: Two Renditions of Fundamental Theme,'' Inside Litigation (Oct. 1998)
"Appeals to the Supreme Court,'' Business and Commercial Litigation in Federal Courts (West 1998)
"Supreme Court Bypasses Airbag Preemption Case,''
Legal Opinion Letter, Washington Legal Foundation (1996)
"The Equal Access to Justice Act in the Federal Courts,'' 84 Colum. L. Rev. 1089 (1984)
Speech at the 2007 Ambassador's IPR Roundtable: IPR Protection, Beijing, China (Oct. 23, 2007)
Jeffrey A. Rosen, Deputy Secretary of Transportation, Fits All of the Criteria
The blog offers a theory that current Deputy Secretary of Transportation, Jeffrey A. Rosen, may have written the op-ed. However, nothing written on this blog should be taken as PROOF. I have no idea who wrote the op-ed. I am just pointing out publicly available information that suggests Rosen as a POSSIBLE CANDIDATE. [Note, there is a law professor at George Washington University also named Jeffrey Rosen who is a completely different person.]
There is plenty of stylistic evidence to suggest it is Rosen. I recommend reading through the entire blog from the beginning to see all of the evidence. Specifically, Rosen has a history of writing op-eds; the hyphenation and em dashes and colon usage and other stylistic clues are strikingly similar with previous writings; the train metaphor and use of "first principles" suggest it might be him; and he has a previous very recent connection with the New York Times which already identified him as a Senior Administration Official.
Here are some general clues that it might be Rosen:
Strong libertarian tendencies
Rosen was a board member of the Free State Foundation, a “free market think tank” focused on “free market, limited government, and rule of law principles.” In his National Affairs article he writes “how can government agencies be allowed to accomplish the necessary elements of their missions, without generating a cumulative and aggregate level of regulation that is harmful to economic prosperity and individual liberty?”
Worked closely with a cabinet secretary from the early days of the administration
He is the Deputy Secretary of the Department of Transportation, the position immediately below the cabinet secretary, and was confirmed May 18, 2017.
Not involved in national security
Nothing in the article points directly to his work in the Department of Transportation, serving to hide his identity. If the author worked in a highly sensitive position, he might be accused of divulging confidential or classified material. His work at the Department of Transportation doesn't involve much of that, and nothing in the op-ed relates to the sensitive work he may do there.
Well-connected mainstream DC Republican, not an outsider
Rosen worked in the Bush administration in both the Department of Transportation and OMB and also served on the board of directors of Amtrak. He is a litigation Partner in the Washington, D.C. office of Kirkland & Ellis and he donated to Jeb Bush’s PAC and other mainstream Republican candidates. He is closely connected with Senator Rob Portman.
He has nothing to lose if his identity is divulged
Rosen is a wealthy man with reported net worth of over $10 million. He was a partner at a major DC law firm; he could easily return to that job if he left the administration.
There is plenty of stylistic evidence to suggest it is Rosen. I recommend reading through the entire blog from the beginning to see all of the evidence. Specifically, Rosen has a history of writing op-eds; the hyphenation and em dashes and colon usage and other stylistic clues are strikingly similar with previous writings; the train metaphor and use of "first principles" suggest it might be him; and he has a previous very recent connection with the New York Times which already identified him as a Senior Administration Official.
Here are some general clues that it might be Rosen:
Strong libertarian tendencies
Rosen was a board member of the Free State Foundation, a “free market think tank” focused on “free market, limited government, and rule of law principles.” In his National Affairs article he writes “how can government agencies be allowed to accomplish the necessary elements of their missions, without generating a cumulative and aggregate level of regulation that is harmful to economic prosperity and individual liberty?”
Worked closely with a cabinet secretary from the early days of the administration
He is the Deputy Secretary of the Department of Transportation, the position immediately below the cabinet secretary, and was confirmed May 18, 2017.
Not involved in national security
Nothing in the article points directly to his work in the Department of Transportation, serving to hide his identity. If the author worked in a highly sensitive position, he might be accused of divulging confidential or classified material. His work at the Department of Transportation doesn't involve much of that, and nothing in the op-ed relates to the sensitive work he may do there.
Well-connected mainstream DC Republican, not an outsider
Rosen worked in the Bush administration in both the Department of Transportation and OMB and also served on the board of directors of Amtrak. He is a litigation Partner in the Washington, D.C. office of Kirkland & Ellis and he donated to Jeb Bush’s PAC and other mainstream Republican candidates. He is closely connected with Senator Rob Portman.
He has nothing to lose if his identity is divulged
Rosen is a wealthy man with reported net worth of over $10 million. He was a partner at a major DC law firm; he could easily return to that job if he left the administration.
Initial Hints from the Op-Ed
The first step in determining authorship is to read the op-ed carefully for what it actually says and doesn't say. The op-ed itself offers several clear clues as to the author’s position in the administration and his (or her) political viewpoint.
Many commentators have carelessly misread the op-ed or not taken the actual text into account when suggesting possible authorship candidates.
Strong libertarian tendencies
He criticizes Trump for not holding “ideals long espoused by conservatives: free
minds, free markets and free people.” “Free minds and free markets” is the
motto of the libertarian Reason
magazine.
He criticizes Trump’s moral lacking in terms commonly used by libertarians and movement conservatives: “The root of the problem is the president’s amorality… he
is not moored to any discernible first principles.” “first principles” is a common term used in conservative circles including members of the Federalist Society.
Worked closely with a cabinet secretary from the early days of the administration
“There
were early whispers within the cabinet of invoking the 25th Amendment” suggests
that the author heard those whispers at the time and was in a position to hear
them.
“No
one wanted to precipitate a constitutional crisis. So we [emphasis added] will do what we can to steer the administration
in the right direction until — one way or another — it’s over” implies that the
author is working with a cabinet secretary who has the power to invoke the 25th
amendment but has chosen not to.
Not involved in national security.
“His
national security team knew better” implies that the author is not part of the
national security team.
Someone
who was involved in national security would not write this anonymous op-ed. It
would put that person in a compromised position, having a secret that could be used against them.
Well-connected mainstream DC Republican, not an outsider
He quotes other officials and suggests he is in contact with people across the administration: “the White House to executive branch departments and agencies, senior officials will privately admit their daily disbelief at the commander in chief’s comments and actions”. A longtime Washington insider would have that kind of access and connections.
He praises Trump’s nemesis and mainstream Republican hero John McCain as the parting shot of the op-ed.
He praises Trump’s nemesis and mainstream Republican hero John McCain as the parting shot of the op-ed.
Has nothing to lose if his identity is divulged
Whoever wrote the op-ed is obviously a very meticulous and careful individual. He must have known that his identity could easily be revealed. This person must have a secure livelihood that doesn't depend on his success in this job or the support or the approval of the Trump administration. He must be someone who can "take or leave" his job in the administration.
Whoever wrote the op-ed is obviously a very meticulous and careful individual. He must have known that his identity could easily be revealed. This person must have a secure livelihood that doesn't depend on his success in this job or the support or the approval of the Trump administration. He must be someone who can "take or leave" his job in the administration.
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