To Make Companies More Diverse, Change Has to Come From the Board

By Alexandra Ossola, Quartz

26 March 19

 

-suite executives, employees, hiring directors—everyone seems to be clamoring for companies to become more diverse. And, yet, progress has been slow, especially in positions of power. For change to truly be effective, experts say it has to come from one group: a company’s board.

It makes sense that the board can wield this kind of power over a company. It is, after all, at the top of a company’s structure, says Keith Meyer, a consultant at Allegis Partners, which helps companies choose new board members, and the president of the Directors Academy, a nonprofit focused on increasing diversity on corporate boards. “The CEO reports to the board. If the tone at the top isn’t being set by the board, more likely than not it’s not being set further down, and you won’t have the same message or delivery of what the company is about. The board has to be engaged.”

Stewarding that culture is actually an important part of a board’s role. Officially, the board is tasked with directing strategies for the company to compete and thrive in both the short and long terms. They make key decisions like whether they should acquire another company or sell theirs. But they also have to think more holistically about what a company stands for, Meyer says. Board members should be considering how their business fits into large-scale environmental, social, and governance issues, and how to attract and keep qualified, diverse employees, Meyer says.

There’s no single recipe for who should sit on a board. On average, company boards have about 11 members each. At private companies, those members typically are appointed by the CEO; in publicly held companies, board members have to be elected (at least nominally) by shareholders. Ideally, each board member should have a particular kind of expertise that can help steer the company. If it’s a healthcare company, for example, it might be a good idea to have a few doctors on the board, as well as someone with experience in insurance and finance.

But the special sauce for the board of a progressive-leaning company? Someone who is able to speak truth to power. “You have to have people who are willing to raise things that are uncomfortable,” says Maryam Banikarim, the former chief marketing officer at Hyatt International who currently sits on the board for Reporters without Borders USA. “I think strong leaders hire people that aren’t going to just agree with them. You need people who are willing to speak the truth even if it’s uncomfortable.”

Being outspoken is actually pretty rare, Banikarim says—most people know that speaking up can cost them, so they don’t risk it. But because of their position of power, board members don’t have to worry about retribution from higher-ups, as others in a company might. That doesn’t mean they have to be confrontational about the policies they believe would be most effective for making a company more diverse. They should be articulate and diplomatic enough to get the CEO and other powerful decision-makers on board. This, Banikarim argues, is part of their basic job description.

According to a report from Deloitte, in 2018, women held 22.5% of board seats in Fortune 500 companies; people of color held 16.1%. Neither number represents a dramatic shift since 2010. But they have inched up, a sign that boards are at least starting to think differently about diversity.  “Almost every board today has a strong focus on becoming more diverse—on diversity of thought, on bringing all the right voices together around the table. That is a huge change, and it’s happening,” Meyer says.

For companies not making organic changes, governments may step in. Last year, California passed a law requiring that every public company with headquarters in the state have at least one woman on its board by the end of 2019; by the end of 2021, five-member boards must include at least two women, and board of six or more must have at least three women. The penalty for not meeting this requirement is a fine.

Meyer hopes that diverse boards will be the norm within the next decade. “If we’re not talking about it anymore, that means success, that means we’re there,” Meyer says. “I hope we make huge progress to get to that point in the next 10 years.” To do that, he says, we need boards with members who are mostly not white men. And once that happens, we can expect more diversification at companies overall.

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Bill Barr's Weasel Words

By William Saletan, Slate

25 March 19

All the ways the attorney general is spinning the Mueller report to protect Trump.

pecial counsel Robert Mueller has submitted his report on the Russia investigation, and Republicans are gloating. They claim a four-page letter from Attorney General William Barr, purporting to summarize the report, exonerates President Donald Trump. They’re wrong. The letter says the Justice Department won’t prosecute Trump, but it reaches that conclusion by tailoring legal standards to protect the president. Here’s a list of Barr’s weasel words and what they’re hiding.

“The Russian government.” The letter quotes a sentence from Mueller’s report. In that sentence, Mueller says his investigation didn’t prove that members of the Trump campaign “conspired or coordinated with the Russian government in its election interference activities.” The sentence specifies Russia’s government. It says nothing about coordination with other Russians. Trump’s campaign chairman, Paul Manafort, gave campaign polling data to Konstantin Kilimnik, a Russian associate who has been linked to Russian intelligence. Manafort, Donald Trump Jr., and Jared Kushner met secretly in Trump Tower with Natalia Veselnitskaya, a Kremlin-connected lawyer. But neither Kilimnik nor Veselnitskaya is part of the Russian government. They seem to be excluded from Barr’s analysis.

“In its election interference activities.” This phrase is included in the same excerpt.
It reflects the structure of the investigation. Mueller started with a counterintelligence probe of two specific Russian government operations: the production of online propaganda to influence the 2016 U.S. election, and the hacking of the Democratic National Committee and Hillary Clinton’s campaign. These are the two operations Mueller targeted in his indictments of Russians last year. If Barr’s letter is accurate, Mueller seems to have decided to confine his examination of American complicity to those two operations. In fact, Barr’s letter specifically cites those operations as the contexts in which Mueller didn’t find conspiracy or coordination. Other contacts between Trump associates and Russians, such as Trump’s Moscow tower project and Michael Flynn’s secret talks about easing sanctions, have been set aside.

“Agreement—tacit or express.” A footnote in Barr’s letter says the special counsel defined coordination as “agreement—tacit or express—between the Trump Campaign and the Russian government on election interference.” The letter doesn’t clarify whether this definition originally came from Mueller or from the Justice Department. This, too, limits the range of prosecutable collusion. We know, for example, that in June 2016, Donald Trump Jr. was told in an email that “the Crown prosecutor of Russia” had “offered to provide the Trump campaign with some official documents and information that would incriminate Hillary … and would be very useful to your father.” The email said the offer was “part of Russia and its government’s support for Mr. Trump.” Trump Jr. wrote back: “If it’s what you say I love it.” Apparently, by the standards asserted in the letter, this doesn’t count as even “tacit agreement … on election interference.”

“Rosenstein and I have concluded.” Barr’s letter mixes two different authors. On questions of conspiracy and coordination, Barr summarizes Mueller’s findings. But on the question of whether Trump obstructed justice, Barr draws his own conclusion: “Deputy Attorney General Rod Rosenstein and I have concluded that the evidence developed during the Special Counsel’s investigation is not sufficient to establish that the President committed an obstruction-of-justice offense.” That’s Barr’s opinion, not Mueller’s. As the letter concedes, Mueller “did not draw a conclusion one way or the other as to whether the examined conduct constituted obstruction.” That’s for the rest of us to decide.

“Absence of such evidence.” One reason to be suspicious of Barr’s conclusions is that in the course of the letter, he tweaks Mueller’s opinion to look more like his own. Mueller’s report, as excerpted by Barr, says “the evidence does not establish that the President was involved in an underlying crime related to Russian election interference.” Barr quotes that line and then, in the same sentence, concludes that “the absence of such evidence bears upon the President’s intent with respect to obstruction.” But the excerpt from Mueller’s report doesn’t refer to an absence of evidence. It refers to a presence of evidence, and it says this evidence isn’t enough to prove a crime. Throughout the investigation, this has been a standard Republican maneuver: misrepresenting an absence of proof as an absence of evidence. Barr’s use of this maneuver in his letter is a red flag that he’s writing partisan spin.

“Underlying crime.” When Barr concludes that Trump shouldn’t be charged with obstruction, he bases this on his prior decision not to charge Trump with conspiracy. Since “the evidence does not establish that the President was involved in an underlying crime related to Russian election interference,” Barr argues, there was no “pending or contemplated proceeding” that Trump’s behavior could have obstructed. This argument has many problems, but let’s start with the simplest one: It bypasses examination of Trump’s obstructive acts. Barr simply defines whatever Trump did as nonobstructive, as long as an underlying conspiracy with Russia isn’t proved. If Trump asked then–FBI Director James Comey to drop his investigation of Flynn, that’s fine.

“Related to Russian election interference.” Barr’s requirement of “an underlying crime related to Russian election interference,” as a predicate for prosecuting obstruction of justice, exempts Trump from obstruction charges even if Trump is shown to have committed crimes—as long as those crimes aren’t specifically connected to the Russian hacking and propaganda campaigns. Flynn, for example, conferred secretly with Russia’s ambassador about lifting sanctions, but not until weeks after the 2016 election. Even if this were proved to be a criminal conspiracy on Flynn’s part, Barr’s legal standard would insulate Trump from prosecution for anything he did to thwart the FBI’s investigation of Flynn.

“That the President was involved in.” In narrowing the permissible premises for an obstruction charge, Barr doesn’t just specify that the crime in question has to be related to the two Russian interference operations. He specifies that the crime has to involve Trump himself. This immunizes Trump against prosecution for anything he did to obstruct investigations, not only into Flynn, but also into the established crimes of Manafort and the alleged crimes of Roger Stone.

“Pending or contemplated proceeding.” Barr says none of Trump’s acts against Comey or other investigators can be prosecuted as obstruction of justice, since they lack “a nexus to a pending or contemplated proceeding.” For example (this is my example, not Barr’s), when Trump fired Comey, Trump wasn’t facing trial and wasn’t officially a target of the Russia investigation. By this standard, the president can bury an investigation as long as he does so before it gets to him. You can’t walk out on Fifth Avenue and shoot somebody, because that’s assault with a deadly weapon. But if somebody gets shot on Fifth Avenue, and your friend lies to police about it, you can order the cops to drop their investigation of your friend.

“Each of which … beyond a reasonable doubt.” Barr says Mueller found “no actions that, in our judgment,” can simultaneously meet three tests: (1) “obstructive conduct,” (2) “corrupt intent,” and (3) “nexus to a pending or contemplated proceeding.” The attorney general says prosecutors would have to prove “each” of these elements of the case “beyond a reasonable doubt.” Even if some of Trump’s acts are both obstructive and corrupt, Barr won’t bring charges unless the “nexus to a … proceeding” can also be proved by the highest legal standard. In a case like this one, that’s an almost impossible threshold for prosecution.

When we get our hands on Mueller’s report—and ultimately, Mueller’s evidence—we’ll have a fuller picture of what he found. We know from Barr’s letter that in the report, Mueller “sets out evidence on both sides” of the obstruction question—and that Mueller says his report “does not exonerate” Trump. For now, all we have is the letter. And it doesn’t show that Trump is innocent of collusion or obstruction. It shows that collusion and obstruction were defined to exclude what he did.