Monthly Archives: June 2021

A Tree(s) Grows in DC

When I first noticed this tree, near where I live, I failed to grasp its unusual nature. On first look, it’s another large member of the pine family (don’t hold me to that – maybe a fir?).

On closer examination, something extraordinary is revealed.

You see the stump that has apparently been cut off:

Then notice that the trunk turns to parallel the ground and then rises vertically again.

And on closer inspection, you see the second trunk rising out of the first one half the distance from the center trunk to the point where the horizontal trunk turns vertical again on the right. This gives the appearance of two separate trees when you first see the high tops as in the first photo above.

I have no idea what event(s) led to this tree taking this conformation but it seems remarkable, especially for such a large tree adjacent to a busy city intersection. In any case, I have never seen anything quite like it after many years of tree hugging, so I decided to share it.

What Do You Call a Collection of Traitors & Cowards?

There is a gaggle of geese (also a press gaggle and, generically, any group)… a coven of witches, pride of lions (definitely not lions), herd of giraffes (also cattle) … getting warmer.

Not that important, I suppose, to have a name for the mob of people who attacked the Capitol on January 6, 2021, in an attempt to stop the election of Joe Biden and replace him with the dictator Donald Trump. I was inspired to think about this when I found this site https://bit.ly/3xRc2QA which the FBI’s display of 1,175 photos of people they are still seeking to arrest for their role in the January 6 insurrection (a very few since arrested). The list bears this note:

If you have any information on the individuals pictured above, please call 1-800-CALL-FBI or submit a tip online at tips.fbi.gov. Please reference the photo number, including the AFO or AOM if applicable, when calling or submitting information online.

Aside from the outrageous nature of the attack itself, the shocking thing about these photos is that many of them are very clear, full face shots that could be identified readily by any number of friends, family, acquaintances, co-workers or customers. Still, however, these people are at large. I’m sure most people who read this blog will not know any of these charmers, but just in case, I am writing this post in the hope that readers will review the photos and report anyone they know.

I understand the idea that “ratting out” someone is frowned upon, even by upstanding people of strong religious and patriotic values. But these people were trying to overthrow the democracy on which your freedoms depend. Don’t think for a moment that if they had succeeded in installing Trump for a second term, despite his election loss, everything would just have continued as before. Recall that Trump himself spoke on multiple occasions about a third term, to rousing applause from his rally acolytes. It was no joke then and certainly no joke after January 6. So, please review the photos and see if you recognize anyone. If you do, report them to the FBI.

And don’t miss the list of arrest announcements at the bottom of the pages of photos. Each is linked to a press release with details of the person’s involvement in the January 6 attack. Makes interesting reading.

While I’m on this subject, I want to make a few comments about some of the “defenses” that I have heard made by January 6 defendants who have been arrested.

One is the “pure of heart” defense, which goes something like, “I was there because I truly believed what Trump had said and I thought I was patriotically defending my country…blah, blah.” Nonsense, you don’t get passing grades in school even if you convince yourself that Martians ate your homework. Belief is a choice you make and every person who claims they believed Trump had access to information that would have shown he was lying about the election. No defense.

Then there is the “I didn’t know it was illegal” defense, based on the idea that the Capitol is a “public building” and therefore the public has the right to go there any time and under any circumstances the public chooses. No, actually, untrue and any person with a functioning mind would know, from personal experience and casual observation, that “public” buildings are normally guarded now-a-days and access is strictly controlled. Moreover, and it pains me to have to add this, there were Capitol police on site who were obviously indicating that access to the building was not open, and no normal person would think it’s just fine to ignore their presence and their resistance to entry.

Finally, there is the “I just got caught up in the crowd” argument. Well, that could possibly be true for a few of the people who walked to the Capitol from Trump’s incendiary speech, but … once there, it should have been clear, again to anyone with a functioning mind, that the crowd had turned into a violent mob and that it was better to skedaddle than to just go along to get along. This “defense” is nonsense and, in my view, even if factually accurate in a handful of cases, it is no excuse. It reads a lot like “yeah, I knew my friends were going to rob the store, but I drove the get-away car anyway because, you know, they were my friends.”

Rant over. Please look at the FBI photos and see your fellow Americans at play. If you recognize anyone, turn him/her in to the FBI. You will feel better for it.

 

AMTRAK Responds

If you read this blog with any regularity, you know that I took AMTRAK to task a while back for what I considered an amateurish performance in its communications about the resumption of “normal service,” wherein it had failed to mention and reinforce the federal mask mandate. https://bit.ly/3dekJwC I emailed AMTRAK to inform them of my posted statement. It took a while (pandemic, you know), but to my pleasant surprise, AMTRAK responded.

The reply contained what by now is the obligatory standard chiché for every public issue by virtually every enterprise, for-profit or otherwise:

… the safety of our passengers and employees is our number one priority.  Therefore, we have documented and forwarded your correspondence to the appropriate management for their review and appropriate action.  Please rest assured that we take matters such as these very seriously and appreciate your bringing it to our attention. [emphasis mine]

 OK, I admit to being a bit testy. The message went on to assure me that,

all passengers must complete this pre-trip COVID-19 check within 24 hours prior to departure. The pre-trip check includes acknowledgement that passengers agree to wear a mask at all times in compliance with federal laws and Amtrak policy. If they cannot acknowledge this, they will be asked [sic] reschedule.

That, of course, is good news and nice to know. The AMTRAK website does contain a clear statement of the mask rule that is still in place. I haven’t received any more promotional emails since my exchange with AMTRAK so I can’t say what, if anything, has changed in their communications. But I can say, GO AMTRAK!”

There, I feel better already.

Chump Play in Philadelphia

I confess I’m still bothered by the scene in 2012 when Jason Werth, playing outfield for the Washington Nationals,  broke his wrist on a diving catch in a game against the Philadelphia Phillies and the Philadelphia crowd jeered him. There seems to be something about Philadelphia.

Last night, 3-time Cy Young Award winner Max Scherzer, fresh off an injury of his own, was pitching against the Phillies, now managed by former Yankees manager Joe Girardi. Because of renewed concerns in major league baseball about pitchers using illegal substances to get better or different spins on pitches, it was apparently thought appropriate for the umpires to check Max. Not once, not twice, but three times –after the first inning, after the third inning and then, unbelievably, in the middle of the fourth inning. Scherzer was upset to have his inning interrupted and, of course, nothing amiss was discovered. https://atmlb.com/3gRbxR6

This fourth check was apparently instigated by Girardi who, after Max struck out the final batter of the inning, came out of the dugout and began challenging Scherzer to meet him on the field for, presumably, a physical altercation that would, almost certainly, have resulted in Max being ejected and both dugouts would have engaged in the typical scrum. Instead, Max smartly remained in the dugout and, appropriately, Girardi was ejected.

Bob Carpenter, the Nationals announcer, was upset, also understandably, remarking that if this kind of gamesmanship is permitted, a manager could easily disrupt a possible no-hitter in the middle of the ninth inning and throw off a pitcher’s timing.

This was a chump move by Girardi. Major League Baseball needs to be careful here to assure that the concerns about substances on baseballs do not turn the game into a contest of repeated disruptions to damage pitcher performance. To be clear, I don’t think pitchers should be permitted to use anything other than the classic rosin bag that has been part of baseball for a very long time, but this should not lead to disrupting a pitcher in the middle of an inning as occurred in Philadelphia last night. Girardi coming out of the dugout to entice Scherzer to fight on the field was completely unacceptable, and he should be fined substantially for it. Just my opinion.

A Darkness in the Heart

A few days ago, Rep. Carolyn Maloney, Chair of the House Committee on Oversight and Reform, releaseddocuments showing ex-President Trump’s efforts to pressure the Department of Justice (DOJ) to overturn the results of the 2020 presidential election.  https://bit.ly/35wq4uL Maloney’s release says, in part,

These documents show that President Trump tried to corrupt our nation’s chief law enforcement agency in a brazen attempt to overturn an election that he lost. Those who aided or witnessed President Trump’s unlawful actions must answer the committee’s questions about this attempted subversion of democracy.

This is not really new. Recall that on May 3, 2017, more than four long long years ago, I published, https://bit.ly/3vObOrS that included a 24-item list of indictable/impeachable offenses by Donald Trump. That was long before the March 2019 Mueller Report, laying out conclusive evidence of at least ten instances in which Trump obstructed justice. And longer still before the July 2019 phone call in which Trump threatened the President of Ukraine that he would withhold Congressionally-approved aid if Ukraine did not announce an investigation of Joe and Hunter Biden. See https://bit.ly/3vBQ7LF It was even longer before the January 6, 2021 Trump-inspired and Trump-led (“I will be there with you.”) attack on the Capitol, for which I recommended that Trump be indicted, arrested and charged with Sedition & Felony Murder. https://bit.ly/3q7iaSb

Thus, it comes as no surprise that unleashed Trump has once again committed multiple crimes. [An aside: this is not an exaggeration. I will soon be reviewing the extraordinary memoir, Where Law Ends, by Andrew Weissmann, the inside account of the Mueller investigation that reveals in horrifying detail the determination of Donald Trump to retain power and remain unaccountable to the people, including multiple crimes in office]

In a nutshell, as exposed in the released documents, here is how Trump attempted to subvert the Department of Justice in the wake of his 2020 election defeat [full details here; https://bit.ly/35wq4uL]:

Trump Sent Bogus Election Fraud Claims to Top DOJ Officials Minutes Before Announcing Their Promotions to the Top Two Spots in the Department

Trump Used Official White House Channels and a Private Attorney to Pressure DOJ to Urgently File a Supreme Court Lawsuit to Nullify the Election

      • The draft 54-page complaint demanded that the Supreme Court “declare that the Electoral College votes cast” in six states that President Trump lost “cannot be counted,” and  requested that the Court order a “special election” for president in those states.

Trump Enlisted Assistant AG Jeffrey Clark in an Attempt to Advance Election Fraud Claims; The White House Chief of Staff Pressured DOJ to Investigate Conspiracy Theories At Least Fives Times

 Examples [“Rosen” refers to then Deputy AG Jeffrey Rosen]:

      • On December 30, 2020, Mr. Meadows forwarded Mr. Rosen an email from Cleta Mitchell, a Trump advisor who later participated in a January phone call with Georgia Secretary of State Brad Raffensperger.  During that call,  President Trump reportedly asked Georgia election officials to “find” enough votes to declare him the winner of the state.  The December 30 email contained allegations of “video issues in Fulton County.”  Mr. Meadows wrote to Mr. Rosen:  “Can you have your team look into these allegations of wrongdoing.  Only the alleged fraudulent activity.”
      • Later on December 30, 2020, Mr. Meadows emailed Mr. Rosen a translation of a document from an individual in Italy claiming to have “direct knowledge” of a plot by which American electoral data was changed in Italian facilities “in coordination with senior US intelligence officials (CIA)” and loaded onto “military satellites.”  This individual claimed that the true data, as well as sources within the conservative wing of the Italian secret service, confirmed that Donald Trump was “clearly the winner” of the 2020 election.

Further nuances and details about these sorry episodes were reported in the Washington Post. https://wapo.st/3q4tP49 One element of that recital is the repetition of “no comment” and no response to inquiries from the press about the narrated events. Even those Justice Department officials who were steadfast in declining Trump’s overtures to overturn the election are apparently unwilling to address the revelations in the emails released by the Oversight Committee. And, quite expectedly, Mark Meadows and Trump himself had nothing further to say regarding their blatant attempts to overturn the election.

 What Should Happen Now

Trump and all of the people involved in attempts to suborn the Department of Justice should be indicted under 18 USC § 371,arrested and tried. It’s past time to put a stop to Trump’s campaign to undermine the central fabric of our democracy.

The US Criminal Code, 18 U.S.C. § 371, if violated when two or more persons conspire either to (a) commit any offense against the United States, or (b) defraud the United States, or any agency thereof in any manner or for any purpose. Both offenses require the traditional elements of conspiracy: an illegal agreement, criminal intent, and proof of an overt act.

In Hass v. Henkel, 216 U.S. 462 (1910) the Supreme Court stated:

The statute is broad enough in its terms to include any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of government . . . (A)ny conspiracy which is calculated to obstruct or impair its efficiency and destroy the value of its operation and reports as fair, impartial and reasonably accurate, would be to defraud the United States by depriving it of its lawful right and duty of promulgating or diffusing the information so officially acquired in the way and at the time required by law or departmental regulation.

In Hammerschmidt v. United States, 265 U.S. 182 (1924), the Court elaborated:

To conspire to defraud the United States … also means to interfere with or obstruct one of its lawful governmental functions by deceit, craft or trickery, or at least by means that are dishonest. It is not necessary that the Government shall be subjected to property or pecuniary loss by the fraud, but only that its legitimate official action and purpose shall be defeated by misrepresentation, chicane or the overreaching of those charged with carrying out the governmental intention.

A multitude of later cases confirm the ongoing vitality of those early definitions.

Proof of conspiracy requires knowledge by the perpetrators that the statements were false. The claims made by Trump, Meadows and others acting on Trump’s behalf were not just obviously false but bordered on hallucinatory. Trump’s repeated claims that there was “no way” he lost Georgia, for example, have no plausible factual predicate and after sixty lawsuit failures, no plausible factual basis has been presented. Trump’s claims were a blatant attempt to both “interfere or obstruct legitimate Government activity” and/or to “make wrongful use of a governmental instrumentality.”

The Manual of Model Criminal Jury Instructions: 8. Offenses Under Title 18, referring to 18 USC § 371,  states,

A conspiracy is a kind of criminal partnership—an agreement of two or more persons to commit one or more crimes. The crime of conspiracy is the agreement to do something unlawful; it does not matter whether the crime agreed upon was committed….

One becomes a member of a conspiracy by willfully participating in the unlawful plan with the intent to advance or further some object or purpose of the conspiracy, even though the person does not have full knowledge of all the details of the conspiracy. Furthermore, one who willfully joins an existing conspiracy is as responsible for it as the originators.…

An overt act does not itself have to be unlawful. A lawful act may be an element of a conspiracy if it was done for the purpose of carrying out the conspiracy. The government is not required to prove that the defendant personally did one of the overt acts.

A conspirator may not defend on the basis that he believed in fantasies when he made claims he knew were unjustified. In this case Trump and his henchmen tried to enlist the personnel and resources of the nation’s top law enforcement agency to accomplish what they failed to accomplish in the election, knowing to a moral certainty that their claims lacked a basis in reality. The conduct in question occurred almost two months after the election and after numerous lawsuits throughout the country failed to persuade a single judge (including some Trump himself appointed) that there was any basis for claims of election fraud that could change the result. Even Trump’s Attorney General Barr publicly rejected the fraud claims.

I am not alone in advocating strong and prompt action to stop Trump’s continuing effort to overturn the election . Jennifer Rubin suggested the following in the Washington Post on [https://wapo.st/3wz0sJM]:

    1.  criminal investigation into post-election actions in which officials were pressured to change election outcomes, including attempts at DOJ and at state officials such as Georgia Secretary of State Brad Raffensperger,
    2. create strict guidelines for Justice Department attorneys regarding efforts to undo lawful elections, including whistleblower protections and mandatory duty to report such actions to Congress,
    3. sue to stop the bogus so-called “audits” in Arizona and elsewhere,
    4. develop federal legislation to strengthen the Electoral Count Act, such as requiring a supermajority to challenge electoral votes.

Rubin’s final recommendation is probably the most important: establish an election-monitoring program for 2022 and 2024 that will assign Justice personnel to prevent voter intimidation, measure wait times, observe election counting, receive complaints and, ultimately, render a report on the functioning of elections in all 50 states.  That’s the most critical because Republicans throughout the country are legislating changes in local election procedures to enable Republican-controlled legislatures and political appointees to control and even overturn election results.

Following Republicans’ uniform refusal to hold Trump accountable for any of his many crimes in office, it is now clear that the fate of the nation’s election system is under systemic attack. It is no exaggeration to say that Republicans are prepared, without compunction, to adopt totalitarian tactics to establish themselves as the permanent ruling party in American politics. They seem to believe that the majority of Americans will accept such actions in peaceful submission. That, I believe, is a fundamental misjudgment, the consequences of which are unimaginably horrible. Among many other things, the United States is no longer separated from its enemies by oceans that take weeks or months to cross. A violent civil conflict would expose the country to attacks from which it could never recover.

In any case, there is no reason to sit idly by while the Republicans attempt in plain view to subvert the Constitution and establish a Republican dictatorship under Donald Trump. Aggressive and immediate actions can prevent the unthinkable and avert more drastic measures later. Trump and his co-conspirators should be indicted forthwith. Time and opportunity are wasting.

The Kindness of Strangers

The title of this post is borrowed from the famous last line of Tennessee Williams’ play, A Streetcar Named Desire, see https://bit.ly/3ge4ce1, but has no connection to it:

Blanche [DuBois] is led off to a mental hospital by a matron and a kind-hearted doctor. After a brief struggle, Blanche smilingly acquiesces as she loses all contact with reality, addressing the doctor with the most famous line in the play: “Whoever you are…I have always depended on the kindness of strangers.”

It’s a line, though, that fits in every other way with my experience yesterday at the rally in support of S.1, the For the People Act. The site was in front of the Supreme Court, an appropriate location to address the need for protection of voting rights for all Americans. Typically for a Democratic rally, at least 18 people were scheduled to speak. It was hot, really hot, and, typically for this time of year in Washington, quite humid. Still, I’ve attended plenty of rallies and marches in all kinds of weather, so no worries. Wrong.

I arrived early and was pleased that among the early speakers were Senators Amy Klobuchar and Jeff Merkley. I secured a good spot for photos with a direct line of sight to the podium. The crowd was smaller than I expected, but vocal and passionate about the matter at hand. Some photos appear at the end of this post.

Returning to my theme, as I continued shooting, I failed to notice how “close” the atmosphere had become. As my lightheadedness become more apparent, I realized, too late, that I needed to leave. I summoned an Uber and moved toward the curb to wait, as the dizziness worsened rapidly. I bent over a few times and was thinking of sitting down on the curb when … I realized that several people had their hands on me. I had literally become unconscious for a few moments. Unknown to me, though, several people had their eyes on me, including at least one police officer and some others from the crowd.

They basically held me up, then pushed me down on the curb. The police officer told me I was not going to leave until they had a medical evaluation. I heard discussion of calling a nurse from the Supreme Court. A complete stranger handed me a bottle of water, assuring me it had been poured that morning from the faucet and was safe. Another person appeared with an even colder unopened bottle of water which I gratefully guzzled. Within what seemed like only a minute to me, Nurse Pat appeared, crushed to active two cold packs and quizzed me about my health and present state. She was really outstanding at nursing and her confidence in my well-being restored my own sense of stability: “Gatorade is your best friend now.”

The Uber car arrived, and the police officer told him what was going on. He made clear that I could not leave yet. The driver, named Michael, without hesitation, insisted on waiting for me.

After a while, when I had regained my composure and was feeling much better, the officer and nurse guided me into the Uber car and off we went. Turned out that Michael was wearing a Harley-Davidson shirt and was a traveler, so we talked motorcycles and Alaska cruises while driving. After a cool shower and some down time with more hydration, I began to feel normal again, though still a bit shaken by the unexpected take-down.

Looking back, several things about this stand out. One, I must be more careful about hydration in this Washington DC heat and humidity. Readers, take note. Two, how amazing it was that within seconds of my going wobbly, people who did not know me had rushed to grab me and prevent a nose-dive into the street. Then they gave up their water to help me recover. Nurse Pat was amazing, kind but firm and obviously very competent.  Three, and this lingers even now, I am upset not so much that this happened, but that I don’t know the names of the strangers who came to my aid. I don’t even know which police department the officers were with: DC or Capitol. I was too dazed to notice or ask. Four, the kindness of these strangers saved me from a potentially serious disaster. No one asked for anything; they just wished me well as I departed, carrying their spontaneous goodwill and generosity with  me. I am and will always be most grateful for the kindness of those strangers.

DOJ Defends Trump’s Defamation of Jean Carroll

The Twitterverse is aflame with indignation at the news that the Department of Justice has filed a brief in the case of E. Jean Carroll v Donald J. Trump “in his personal capacity.” DOJ’s brief argues that, based on federal statutory law and multiple court precedents, Trump’s statements that Carroll was lying when she claimed he raped her, while offensive and potentially defamatory, were “within the scope of his employment as President” and thus the United States of America in its sovereign capacity may, indeed must, replace Trump as defendant and Trump’s attorneys as his representatives in the litigation.

This was a genuinely shocking development, especially considering that neither Trump nor any of his co-conspirators have been brought to justice in any way in connection with the January 6 assault on the Capitol that he inspired and directed, nor for any of the acts of obstruction of justice that were described in detail in the Mueller Report. While it’s obviously true that many of the mob that attacked the Capitol have been arrested and charged with various offenses, and others are being hunted as we write, the suspicion is that there were many senior Trump aides, likely including some members of Congress, who were guilty of conspiring to cause the insurrection/sedition of January 6. Many people around the country are outraged that the DOJ would undertake to defend Trump in the Carroll defamation case.

I am among those outraged Americans. At the same time, I am, or was, a licensed attorney and, therefore, had to take the time to read the cases cited by DOJ to try to understand the legal basis for its stunning decision to take over Trump’s defense. I have completed my review of DOJ’s brief and the cases cited and will now set out my views about them.

Preliminary Statement

The position outlined by DOJ amounts to a per se position. That is to say, given DOJ’s articulation of its theory of the case, it is almost impossible to think of a situation in which a sitting president, accused of defamation, responds with, we’ll assume, outright lies constituting blatant overt defamation of the accuser and such responses would not be determined to be within the scope of the president’s employment by the federal government.

I will try to explain why this is wrong. Considerable simplification is necessary. You can read DOJ’s brief in full here: https://bit.ly/3g2Vfnr

Background to DOJ’s Analysis

Under the  federal statute known as the Westfall Act [technically, the Federal Employees Liability Reform and Tort Compensation Act of 1988] bars tort claims against government employees acting within the scope of their employment. Instead, such claims must be brought under the Federal Tort Claims Act, but the catch is that unless the government consents to be sued, defamation cases are barred and, in effect, even though the plaintiff may have been defamed, there is no legal remedy. The District Court succinctly explained it this way:

the FTCA specifically excepts libel and slander cases from the United States’s consent to be sued. Thus, if this really is a suit against the United States, it is one to which the United States seemingly has not waived its sovereign immunity.

As the District Court also noted in the Carroll case,

Because the Westfall Act operates where a lawsuit could have been brought against the United States under the FTCA, the statutes share the same threshold requirements. Thus, in order for the Westfall Act to apply, the defendant must be an “employee of the Government” who was acting within the scope of his or her employment.

Because the goal of all this is to protect federal employees who are claimed to have committed torts  (civil wrongs, such as libel) from having to defend suits when the employees were acting with the scope of their employment, the Attorney General may certify that challenged conduct was indeed within the scope of employment and, therefore, the United States becomes the defendant in lieu of the employee originally sued and the DOJ takes over the defense.

Certifications can be challenged, however, and that is what has happened in the Carroll case. Under the Westfall Act, the question of “scope of employment” is decided according to the law of the state with the closest connection to the events in question.

You can read the District Court opinion here: https://bit.ly/3cs3Huw

Facts in the Carroll case

Carroll claimed in a book that was reported in New York Magazine that Donald Trump raped her in a department store in the mid-1990s. About two hours after the magazine published, Trump, on his own initiative, issued a statement denying that he knew Carroll, asserting that the report was false and designed to sell books. Shortly thereafter, in response to a press inquiry and in an interview, Trump expounded at length on his position that Carroll had fabricated the entire story.

Carroll sued Trump in New York state court, claiming defamation. After ten months of litigation, DOJ decided to step in, removed the case to federal court and certified the scope of employment necessary to invoke the Westfall Act.

DOJ’s Argument

To some degree, DOJ’s framing of the issues stacks the deck in its favor. That is what litigants do when they file briefs arguing for their preferred outcome. We should not, therefore, be shocked that DOJ did that here. There are, however, fair questions to be raised about the approach DOJ took in its analysis of the legal issues.

I will not discuss the threshold question whether the President of the United States is a “employee of the federal government.” Carroll argued the negative; DOJ strongly disagreed and, I believe, has the better argument on that question. A large part of its brief was devoted to that issue.

The critical issue remains whether Trump’s unilateral declaration that Carroll was lying about the alleged rape was within the scope of Trump’s employment as president.

DOJ describes the key question as “whether a high-ranking elected official subject to close public scrutiny acts within the scope of employment when making public statements denying and responding to serious accusations.” And,

The FTCA and Westfall Act, and the common law tort principles that they incorporate, recognize that in some instances employees will commit torts—including intentional torts—for which the employer bears responsibility, even when the employer disapproves of or expressly forbids the tortious conduct. Conduct that falls within the scope of employment for purposes of the Westfall Act thus need not be authorized or acceptable. Indeed, the premise of a scope-of-employment analysis is that a tort may have been committed. Under the Westfall Act, even conduct involving “serious criminality,” … or which runs “contrary to the national security of the United States,” … may fall within the scope of employment. In making and defending a Westfall Act certification, therefore, the Department of Justice is not endorsing the allegedly tortious conduct or representing that it actually furthered the interests of the United States….[case cites omitted]

… the question in a Westfall Act case is whether the general type of conduct at issue comes within the scope of employment. Speaking to the public and the press on matters of public concern is undoubtedly part of an elected official’s job.

Stated differently,

The key inquiry is whether the conduct at issue is of the type an official generally performs, rather than whether the particular allegedly tortious act was improper.

And,

in undertaking a scope-of-employment inquiry, a court must look to “the type of act” the defendant took, rather than its “wrongful character.”

And,

What matters is whether the underlying activity itself was part of the employee’s duties.

DOJ then makes the great leap, sliding past the fact, not disputed to my knowledge, that Trump initiated his public attack on Carroll in the first instance. It was not in response to media inquiries but occurred almost immediately after the New York Magazine publication of her book excerpt. That is why I put bold-face type on that fact earlier. DOJ:

When members of the White House media asked then-President Trump to respond to Ms. Carroll’s serious allegations of wrongdoing, their questions were posed to him in his capacity as President. Likewise, when Mr. Trump responded to those questions with denials of wrongdoing made through the White House press office or in statements to reporters in the Oval Office and on the White House lawn, he acted within the scope of his office.

This is critically important because the cases cited by DOJ are all distinguishable from the Carroll situation. In the opinion in Council on American Islamic Relations v Ballenger (444 F3d 659), on which DOJ heavily relies, the Congressman’s comments about CAIR were made in the context of an explanation why the Congressman’s marriage was dissolving currently which was a matter bearing on his ongoing conduct while in office. Trump’s comments, initially given of his own volition and not in response to media questions, were about events that happened more than two decades ago.

In Does 1-10 v Haaland (973 F3d 591) the statements made by the Congressman were “intended to convey the politicians’ views on matters of public interest to their constituents,” namely an incident at Lincoln Memorial between students and a Native American veteran. Clearly that is not what the Trump-Carroll dispute involves.

In Operation Rescue National v. U.S. (975 F. Supp. 92), “Senator Kennedy said, in part, that the proposed legislation was needed because “we have a national organization like Operation Rescue has as a matter of national policy firebombing and even murder …” The District Court found that that Kennedy’s comments were within the scope of employment because,

Senator Kennedy was providing political leadership and a basis for voters to judge his performance in office—two activities that public officials are expected, and should be encouraged, to perform,”…. In this sense, the Senator’s employer was his constituents and he served them by fully informing them of his views and working to pass legislation he believed would benefit them.. [italics added]

The Operation Rescue analysis is particularly interesting. The court flipped the employment relationship to one in which Kennedy was working for his constituents. If so, the “scope of employment” analysis that would substitute the United States for Kennedy should have failed.

The bottom line is that the DOJ analysis leading to its decision to replace Trump with the United States government is pedestrian. It fails to account for important differences in the Trump case from the precedents cited. And, worse, it creates a nearly per se rule that immunizes all future presidents from slanderous/defamatory statements about disputed matters without regard to the time when those events occurred. DOJ’s analysis is a license for a sitting president to defame people he may have harmed long before taking office. Trump accused Carroll of lying on three separate occasions at least. Under DOJ’s interpretation of the Westfall Act, he could have spent hours more on national television at his rallies and in other public statements attacking her credibility and, after all that abuse, she would have no effective remedy. The United States has not waived sovereign immunity for defamation and there is nothing to suggest that it intends to do so in the future.

Admittedly, the case law opens the door to this approach, but DOJ did not have to walk through it. Given Trump’s history of grifting at the expense of the government, and thus of taxpayers, it is painful to see the Department of Justice bend over backwards to continue putting resources at his disposal while giving him, and future presidents, an essentially free hand.

The legal precedents that make this possible should be closely re-examined. The Westfall Act should be amended to put at least some fences around permissible expression by a sitting president who already has enormous advantages in the fight for public opinion. What happened to Ms. Carroll, regardless of the truth of the underlying allegations, should not be repeated. Republicans would, no doubt, oppose any legislation that might prevent Trump from doing what he does. The only hope for rectifying this miscarriage of justice is to replace more Republicans with Democrats in Congress.

 

Marjorie Taylor Greene Does Not Believe in Evolution

You may think the title of this short post is click-bait, but I assure you I saw the video with my own eyes and ears just a few minutes ago. You can see for yourself at https://www.rawstory.com/marjorie-taylor-greene-evolution/

A Member of Congress, an up and coming standard bearer of the Trumpublican Party, formerly the Republican Party, does not believe in what she calls the “so-called science” of evolution.

There is nothing left to say.

 

Manchin Both Ways – Political Double Speak

Senator Manchin of West Virginia, putative Democrat, published a statement of principles of sorts in the Charleston Gazette-Mail on June 6, 2021. https://bit.ly/3x5q9S8 In matters of this import, reasonable people will expect the ideas expressed to have been expressly approved by the senator. What, then, is the putative Democrat from West Virginia telling us?

The title of the piece tells us that Manchin is going directly in the face of everyone who is concerned about voter suppression in the United States: “Why I’m voting against the For the People Act.” Then, in a remarkable exercise in double speak, Manchin purports to explain why he thinks this is justified. To more clearly set out what Manchin is saying, along with the foreseeable consequences, I have arranged his statements in a table:

Principle                     Manchin Position                    Result                      Effect on Democracy

Right to vote critical to democracy For it Manchin looks good but …. Zero, just platitude
Right to vote is not about party or politics For it Manchin looks good but …. Zero, just platitude
Protecting that right should never be partisan For non-partisanship Good in theory but if Republicans are partisan anyway, law is defeated Negative
Elections should be fair, accessible and secure For it Good if parties agree on what is fair & secure; if not, Repubs defeat law Negative
Early voting is good For it Good if parties agree but if not, Repubs defeat early voting Negative
Party labels can’t prevent doing what is right For it Wrong; party labels often prevent doing what is right Negative
Debate about voting rights is about partisan advantage Against it Wrong; debate is abt voting rts or voter suppression Negative
Partisan policy re voting rights is anti-democratic Against it Manchin looks good but … Negative
We should get along For it Manchin looks good but … Negative
Repubs who voted to impeach Trump shoudd vote for the bill For it Manchin looks good but … Negative
Partisan voting reform will lead to more partisanship Against it Republicans should get their way so we can be non-partisan Negative
Democrats are just as bad as Republicans re filibuster Against it Republicans should get their way so we can be non-partisan Negative
Founders built checks/balances to force compromise For it Republicans should get their way, even though filibuster not in Constitution Negative
Absolute power is bad Against it If Republicans get their way, we will have solutions Negative – Republicans will defeat bill
Better way is to “find it together” For it Republicans defeat the bill Negative

Manchin goes on to argue that the Voting Rights Act was reauthorized five times with bipartisan support, overlooking that the Supreme Court, at the behest of Shelby County, Alabama, gutted the VRA in 2013, leading to immediate resumption of voter suppression laws that continues to this day. The reality is that Republicans who, with the filibuster at their disposal, control the outcome in the Senate with Manchin’s support, are dead set against the readoption of the key provisions of the VRA in any form.

Manchin’s enthusiasm about having one Republican senator supporting the John Lewis Voting Rights Advancement Act is just so much hypocritical deflection. There is zero evidence to think Lisa Murkowski’s support is going to lead Republican senators to support the legislation. It is therefore completely transparent cynicism for Manchin to declare:

I continue to engage with my Republican and Democratic colleagues about the value of the John Lewis Voting Rights Advancement Act and I am encouraged by the desire from both sides to transcend partisan politics and strengthen our democracy by protecting voting rights.

That is politician double speak for “I don’t want this legislation but I’m going to act like I do. Trust me.”

Thus, Manchin, the Republican sheep in Democrat’s clothes, concludes with his rejection of the For the People Act and rejection of efforts to end the filibuster that gives the Republicans a chokehold on the separate voting legislation, all on the blatantly false premise that “bipartisan compromise” is still possible. Manchin’s hypocrisy is transparent. The question now is: what will the Democratic Party do about this continuing roadblock to meaningful protection of voting rights in America? The Democratic Party is never going to get the cooperation of Joe Manchin who is full of platitudes about bipartisanship and cooperation when he knows full well that neither of those is going to happen in the face of trenchant Republican opposition.

We are at the crossroads now – one path leads to restoring voting rights and protecting democracy, while the other leads directly to more voter suppression and, potentially, the establishment of a dictatorship as Donald Trump has made clear he intends to pursue.

Jennifer Rubin’s opinion piece in the Washington Post yesterday has it right. https://wapo.st/3puKvkV  Manchin’s objection comes down to the fact that Republicans object. His objection, therefore, has nothing to do with bipartisanship. That is a smokescreen for the position that the Republicans should get their way, which is the way of voter suppression and not the path to restoring the highly effective processes that were in place under the Voting Rights Act of 1965. Rubin argues,

Manchin’s bland platitudes suggest he prefers stalemate to taking hard votes. The status quo leaves him with latitude to make holier-than-thou pronouncements to decry both sides.

Rubin proposes a series of specific actions to bring the Manchin play to a head. All make great sense. Democratic leadership must demand that Manchin,

(1) “come up with 10 Republicans for H.R. 4 and for a slimmed down H.R. 1” and  “four more Republicans to support the Jan. 6 commission.”

If he cannot, then his thesis that the filibuster promotes debate and makes way for compromise collapses and his role in promoting the tyranny of the minority is laid bare.

(2) spell out what reforms he would accept. Is requiring Republicans to hold the floor (i.e., demanding a talking filibuster) “weakening” the rule? …. If the filibuster is simply a means of thwarting any reasonable legislation, why is it worth preserving? What if the integrity of our democracy is at stake?”

Elevating the filibuster to the sine qua non of our constitutional system is absurd. It is not in the Constitution. It protects no constitutional principle. It does not constitute a check or balance on the other branches as, for example, a veto override or the Senate’s advise and consent power on nominees. It does not protect minority rights when it is used to thwart voting rights protection for disfavored minorities.

(3) “Democrats should compel Republicans to filibuster again and again the bills Manchin himself thinks are entirely reasonable. Bring up H.R. 4. Put the Jan. 6 commission back on the floor. After 5 or 6 of these rounds, Manchin’s bipartisan fetish may subside.”

(4) Democrats should also  “demand he present compromise legislation that has 10 Republicans. What magic formula is he aware of that has evaded others? Where are four more Republicans in addition to the six who would support the Jan. 6 commission?”

(5) “voters and voting rights activists need to confront Manchin civilly and peacefully, but with unrelenting demands for him to justify his position. An array of interest groups hurt by Republican obstruction and assaults on voting rights — e.g., organized labor, seniors, the disabled community — must turn up the heat. Most of all, Capitol Hill police and other law enforcement officials must demand passage of the Jan. 6 commission — or Manchin’s agreement to push it through with less than 60 votes. They and the widows of law enforcement personnel killed from the Jan. 6 events need to be omnipresent and unrelenting.”

The final word from Rubin, well and truly said:

The time for Manchin’s excuse-mongering is over. It is time to demonstrate his bipartisan notions are more than fantasy.

 

 

Trump, Seriously

It is tempting to treat Donald Trump as a sick joke at this point. He sits in Trumplandia, aka Mar-a-Lago, spewing lies about the 2020 election and lashing out as his enemies, perceived or otherwise. He is apparently planning to hold more “rallies,” that many view as simply another way for Trump to scam his political base.

Twitter is ablaze with mocking commentary about Trump, his family who can’t resist tweeting about all the outrages against them, his political allies in the Republican Party who, terrified that Trump’s supporters will turn on them, are willing to sell the country down the drain to avoid his anger. Hundreds of the people he inspired, indeed directed, to attack the Capitol on January 6 are facing serious prison time, loss of jobs, financial ruin, loss of respect and more.

And, according to multiple reported sources, Trump is asking whether he is, as many of his supporters have declared, going to be restored to the presidency in August or perhaps later. The apparent basis for this is the collection of so-called “election audits” being conducted by a rag-tag bunch of Republicans in Arizona and other closely contested states.

As ludicrous as all this is, and as tempting as it is to believe that the left-leaning side of Twitter is justified in mocking all of it, there remains a serious undercurrent of concern that Trump’s followers will, once again, attempt to disrupt the government through a violent insurrection. A group of 100 scholars of history/democracy has signed a letter expressing their belief that anti-government sentiment inspired by Trump should not be simply dismissed. They and many other serious observers have drawn the parallels from history elsewhere as evidence that the threat of undoing the American republic and its democratic ideals is real.

Recall that, despite his gross mishandling of the pandemic, among many other failures, 74 million Americans voted to give Trump a second term. Those people were, for whatever reasons, unimpressed with Trump’s admission that he downplayed the seriousness of the coronavirus, undeterred by his overt racism, misogyny, criminality and indifference to the plight of so many – approaching now 600,000 dead from COVID-19. There is little reason to believe that the majority of those 74 million people feel any differently today. Many, apparently, would readily yield their democratic freedoms, such as the right to vote, in exchange for restoring Trump to power by whatever means necessary.

I restate these concerns because the threat is, in my judgment and that of many serious thinkers with far greater credentials than mine, very real.

An easy case can be made that Trump’s delusions of grandeur, his belief in so many unbelievable things (for example only, the idea that the “ election audits” can somehow put him back in power) are evidence of mental decline, perhaps severe mental illness, held up by his rage and inability to accept that, finally, he was defeated in a way that cannot be overcome by lawsuits, threats, bribes or anything … anything short of violence, that is. Violence is the one tool left for Trump, and there may well be large numbers of Americans prepared to engage in it if he tells them to do it. No different than many of the so-call Third World countries that Americans often ridicule as “not us.”

I am not, obviously I hope, suggesting there is a high probability that Trump will attempt to retake power through violence. On the other hand, we have already seen in the events of January 6 that he is not beyond doing it. His most ardent followers are easily misled. The stories of his increasing anger and irrationality from apparently reliable inside sources should, therefore, be taken seriously. I hope, and believe, that the current President is doing so but is just not giving oxygen to the idea that Trump is a real threat.

So, we can continue to have our fun on Twitter and Facebook by mocking Trump’s delusions, but everyone dedicated to Benjamin Franklin’s prescient declaration, “a republic, if you can keep it,” should remain alert and focused. Hopefully, the Department of Justice will, as it is intended to do, act aggressively against the members of the January 6 mob and show the world that we take our democracy seriously here. Any who would be its enemies, foreign or domestic, will be dealt with fairly but with severity appropriate to the nature of the challenge. It’s our republic and, yes, we mean to keep it.