Monthly Archives: November 2023

The Fork in the Road to Democracy or Dictatorship

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An article published in The Hill suggests that Donald Trump’s promises that if re-elected he will engage in violent retribution against his enemies have inspired members of Congress to breach protocol and almost come to blows. Trump’s violent talk shows signs of taking over Congress  https://tinyurl.com/djbp5rss Those threats are, of course, among many other Trump/GOP assaults on the centuries-old system of American democratic government.

The article was inspired by a first-term Republican Senator from Oklahoma challenging the president of the Teamsters union to a fistfight in a hearing. The article also reports that Mitt Romney had much to say about the situation, noting the self-evident fact that “the Republican Party has become the party of Trump.” Romney, the master of understatement when it comes to criticizing looney Republicans, said the fight challenge was “clearly unfortunate.” Bold stuff from the man who in 2016 had said that Trump was “worthless”, a “fraud”, and that “he’s playing the American public for suckers: he gets a free ride to the White House and all we get is a lousy hat.” https://tinyurl.com/5dsvuy5x

Romney, you will recall, promptly bent the knee to president-elect Trump to seek a Cabinet post – which was, of course, denied. Trump knows how to treat “disloyal” people.

The article notes that “Trump’s use of violent rhetoric has since become almost routine,” accurate except for the “almost” modifier. Trump now engages in violent talk every day, using language identical to that made famous by Adolf Hitler and other dictators of the past. GOP Trump loyalists aren’t concerned. Their plan to steal the 2020 election and stay in power didn’t work as they imagined but the playbook remains valid for their purposes. The 2024 election is just another chance for them.

When a politician tells you he wants to “take over” your country, you should believe him. Trump aspires to fascist domination of the entire federal and state government apparatus. Republican politicians are so busy trying to avoid Trump’s wrath that they continue to make “both sides” false equivalencies and to equivocate about what is really happening. One example is Republican Senator Mike Rounds:

 It’s not the route that I’d like to see any of us go,” … I understand the reason why there was anger.

both individuals should have had a different approach to resolving it.

you’re seeing folks on both sides of the political spectrum being less respectful of other people.

I don’t know if he changed [norms] or simply responded to what he saw from other people. I think he sensed that the American people were allowing this to go on, and he’s taken advantage of it, but it’s not the direction that I think our country should go.

Powerful stuff, those Republicans speak. I’m sure you didn’t miss the “both sides” he snuck in there. Brings to mind Trump’s comment about the Nazi march in Charlottesville: “very fine people, on both sides.” The Post article goes on to cite other incidents including one in which former Speaker Kevin McCarthy (R-Calif.) was accused of elbowing another Republican representative in the back.

The First Amendment and the associated long history of American acceptance of “free speech” allow for this kind of violent rhetoric in the absence of an imminent threat of violence by the speaker or someone in league with him. That is what happened on January 6. We now learn from Mediaite.com that Republicans are cheering the release of previously withheld security footage from January 6 because they have somehow reached the conclusion that it shows police collusion and thus sustains their belief that the entire episode was an “inside job” by the “left.” Trump Supporters Cheer Release of Jan. 6 Footage Showing Trump Supporters Storming the Capitol  https://tinyurl.com/bderutcr

Republicans have learned nothing. And some of the January 6 Capitol-desecrators have recanted their professions of error and remorse that were used performatively for compliant judges to secure lesser sentences. https://www.bbc.com/news/world-us-canada-66169914

Many questions leap to mind. One of the most prominent is whether American corporations are going to continue playing deaf and dumb while spraying advertising dollars and PAC contributions on rightwing Republican candidates. Historically, American corporations, armed with “personhood” by the Supreme Court Citizens United case, have tried to have it both ways. Those days must end now. If the corporate community is indifferent to the fate of American democracy, consumers must show them the consequences by withholding purchases.

Donald Trump and his supporters have made clear their intention to destroy the American administrative state that accounts for massive amounts of economy-stimulating expenditures while assuring that the worst short-term instincts of capitalism are at least to some degree regulated in the public interest. Trump has, for example, made clear he will wreck the civil service system to assure that only workers completely loyal to him have federal jobs.

The United States is not alone in the world. Among numerous others, Russia, under the complete control of dictator Vladimir Putin, is waiting for an opportunity to strike a fatal blow against this country. Trump has previously subordinated himself to Putin in open displays of obsequious submission. Once Trump is back in power, Putin will have a free hand. At the end of the day, Putin, whom Trump openly admires, is no different than Josef Stalin and Adolf Hitler.

I had occasion recently to be reminded of some of James Madison and Alexander Hamilton’s more salient observations about government in the Federalist Papers that helped secure ratification of the Constitution. Some of the more relevant ones include:

The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.
― James Madison, Federalist Papers

It has been frequently remarked, that it seems to have been reserved to the people of this country to decide, by their conduct and example, the important question, whether societies of men are really capable or not, of establishing good government from reflection and choice, or whether they are forever destined to depend, for their political constitutions, on accident and force.
― Alexander Hamilton, The Federalist Papers

On the other hand, it will be equally forgotten that the vigor of government is essential to the security of liberty; that, in the contemplation of a sound and well-informed judgment, their interest can never be separated; and that a dangerous ambition more often lurks behind the specious mask of zeal for the rights of the people than under the forbidden appearance of zeal for the firmness and efficiency of government. History will teach us that the former has been found a much more certain road to the introduction of despotism than the latter, and that of those men who have overturned the liberties of republics, the greatest number have begun their career by paying an obsequious court to the people; commencing demagogues, and ending tyrants.

― Alexander Hamilton, The Federalist Papers

If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify.
― Alexander Hamilton, The Federalist Papers

To judge from the conduct of the opposite parties, we shall be led to conclude that they will mutually hope to evince the justness of their opinions, and to increase the number of their converts by the loudness of their declamations and the bitterness of their invectives. An enlightened zeal for the energy and efficiency of government will be stigmatized as the offspring of a temper fond of despotic power and hostile to the principles of liberty. An over-scrupulous jealousy of danger to the rights of the people, which is more commonly the fault of the head than of the heart, will be represented as mere pretense and artifice, the stale bait for popularity at the expense of the public good.
― Alexander Hamilton, The Federalist Papers

Gagging Trump

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This past Monday, I listened to two hours of the even longer oral arguments in United States v. Trump, regarding Judge Chutkan’s order limiting Trump’s attacks on Jack Smith, court staff and prospective witnesses in the criminal case against him. Several aspects of the argument stood out.

One was Trump’s lawyer’s desperate attempts to avoid conceding any limitation on what Trump can say, probably fearing that any concession of even the smallest point would swallow the entirety of his argument. His basic position was that Trump cannot be prevented from saying whatever he wants about anyone and everyone because of the First Amendment, and because he’s running for office, and because he’s Trump.

The court’s questioning, especially from Judge Millet, was detailed, incisive and brought back memories of law school classes in which the intellectual noose was tightened and then tightened some more as you tried to escape the traps laid by the professor. Trump’s lawyer kept trying to add facts to the hypothetical questions the judge asked, and she was not having it. It was somewhat embarrassing to witness and likely did not serve Trump well.

When counsel for the government addressed the court, however, the same questioning twisted itself into knots trying to determine whether there was any speech by Trump that could be prevented by the District Court order under review. The government was arguing that the First Amendment freedom of speech could be limited by the need to protect the integrity of the judicial process.

The judges struggled to find the limitations on that principle with questions like this: suppose Trump is in a debate during his campaign while the trial is underway, and his opponent raises testimony given in the trial. Can Trump say: that witness is a liar? A scoundrel?  A politically motivated anti-Trumper? Counsel for the government tried to argue, yes, that can be barred by court order to protect the integrity of the trial process but conceded that general statements about prejudice were acceptable. The court was not having it. Or so it seemed.

One thing you learn early in law school is that predicting how a court is going to rule by listening to questioning during oral argument is a fraught business. The media loves to predict outcomes but is often wrong — very wrong. Politico, to my surprise, published a reasonably balanced discussion of the oral arguments. https://tinyurl.com/2uy2v5e6

The key question comes down to how can “protection of the integrity of the judicial process” be accomplished without unconstitutionally restricting the speech of a defendant? It’s a difficult analysis.

In my view, the First Amendment privilege of the defendant must yield to the integrity of the judicial process. If the defendant is allowed to publicly attack witnesses and/or undermine the credibility of the prosecutors, the integrity of the process will be damaged, which is precisely why someone like Trump would and does almost daily engage in such attacks. Drawing the line between acceptable criticism, such as “the prosecution is politically motivated,” and impermissible attacks such as “the prosecutor is a thug, the witness is dishonest and prejudiced” is difficult.

But the court process has ways for these types of challenges to be brought before the court and decided, based on EVIDENCE, rather than permitting the defendant to undermine the entire process by intimidating lawyers and witnesses. Trump’s attorney made much of the challenges lawyers face in advising defendants regarding statements made about pending cases, some of which points seemed to resonate with the judges. One solution to that conundrum is to tell the client to stop talking about the case. If attacked, refer to any recorded testimony that arguably says otherwise. In short, stay factual and pass on the invective and threats.

But, of course, that’s not Trump’s style. Bullying and threatening are his standard repertoire. He’s not going to give it up unless the courts make it clear that the consequences for violating court orders designed to protect the judicial process will be met with severe consequences, including jail time. Meanwhile, since the gag order is on hold pending appellate court review, Trump will continue to be treated as a special class of one who is above the law that applies to everyone else.

Trump’s “Defenses”

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As she often does, Jennifer Rubin of the Washington Post has written a compelling piece  entitled, The trifecta that could sink Trump’s favorite defense https://tinyurl.com/3xrvzdam As often happens in criminal conspiracy cases, some of the defendants, in this case three former Trump attorneys and an Atlanta bail bondsman have proffered evidence against Trump in exchange for plea deals. Uncommonly, videos of some of their statements to prosecutors were leaked to the press by one of their attorneys. Time will tell what effect that decision has on the lawyer’s future.

But what is clear as the proverbial bell here is that three of Trump’s co-conspirators have chosen to save themselves at Trump’s expense. Anyone watching Trump for the past seven years can readily anticipate how he will react, but what is most interesting is the impact of their proffers on Trump’s defense that he truly, genuinely, authentically believed he won the 2020 election and that he lacked the necessary criminal intent to overturn the election through extra-legal or illegal means because he was acting on the advice of his attorneys.

The testimony of many participants in Trump’s scheme are aligning now in close harmony around a couple of key ideas: (1) Trump’s attorneys did not advise him that he won the election; indeed, many of them advised the opposite was true; Trump simply chose to act on the statements of those who told him what he wanted to hear but which he had every reason to know was false; (2) even if Trump somehow truly believed he won, for which point no credible evidence has thus far emerged, that belief is not a defense to the several unlawful actions he took to overturn the election result through extralegal means, such as offering phony electors and the January 6 assault on the certification process.

The legal system provides methods by which proper challenges could have been brought and, indeed, more than 60 were filed in courts across the country. None of them succeeded.

Trump’s most effective defense, the one on which he has principally relied for his entire life, is delay. In that he has a chance. The Fulton County Georgia DA has just requested an August 2024 start date which, if adopted, will virtually assure that the trial is ongoing at the time of the 2024 election. If the country were to lose its collective mind and elect Trump to the presidency, he would almost certainly try to pardon himself and would offer, for a price, pardons to everyone who might still be a threat to him. The notion that a president can pardon himself is preposterous on its face but with the current Supreme Court stacked with Trump appointees, there is no assurance he would not be “exonerated.”

The obvious and best solution, other than Trump’s earlier conviction and sentencing in one of the other felony cases, would be for him to be defeated at the ballot box. He would, of course, claim the election was rigged and start the challenge process all over again, perhaps including another attempt at a violent coup.

This pathetic situation has resulted, in part, due to the failure of the various charging parties to coordinate their activities and, in part, due to the pro-Trump preference demonstrated repeatedly by Judge Aileen Cannon in the Mar-a-Lago documents case. All the judges in all the cases are putting up with conduct that would never be accepted for any other defendant than Trump. If it is true that there is a two-tiered justice system, as many Republican Trump worshippers have claimed, it favors Trump rather than prejudicing him.

Time will tell, as usual. Meanwhile, the best offense against Trump remains producing an overwhelming election defeat in 2024. There may be no other way.

Some Questions About Trump’s Theft of Secret Government Documents

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As the prosecutors and courts muddle on with the Trump cases, I have been reflecting further about the most curious case of the secret documents Trump removed from the White House, stored in various insecure locations at Mar-a-Lago, lied about, refused to return, and, to this day, claims that he has an absolute right to have and to do with what he pleases, including, as he has already done, sharing them with persons not cleared to see them.

My main question is: why? Why would Trump set himself up for charges of violating national security in this way? Why, when the demand for return was made, did he not simply return the documents and claim it was all a big misunderstanding? Indeed, Why didn’t the Trump family rush to persuade him to return the documents? How about all the sycophantic spineless Republicans in Congress? Why didn’t they go to him and try to persuade him to return the documents?

I recognize the obvious: once Trump wants something to be true, he declares it’s true and that, for him, is the end of it. And the truth is that belief is a choice. No one inherently believes the Earth is an orb. They are taught in school that it is so and, in good schools, given the evidence from which its “orbness” has been deduced. The relatively small number of dunderheads who claim the Earth is flat have chosen not to believe the evidence.

Trump always chooses to “believe” that which benefits him. Thus, while president, he repeatedly said: “Article II allows me to do anything I want,” https://tinyurl.com/28ysddrt, all the while claiming he doesn’t talk about it while he’s talking about it. I can say with certainty that no attorney with credible understanding of the Constitution would accept that claim, but Trump chooses what he chooses.

Moreover, everything with Trump is transactional. I understand that he is stubborn and doesn’t like to be told what to do. One theory is that he kept the documents just to show that no one, not even the top law enforcement echelons of the U.S. government, can tell him what to do. Maybe, but that explanation seems thin when the criminal charges of the gravest nature are considered. Trump is not much of a gambler, and he would have to have a gambler’s mentality to persist with the document fight in the face of the felony charges brought against him.

While he likes to portray himself as a brilliant businessman, he bankrupted most of the businesses he has been involved in, including, remarkably, casinos. Starting with the millions he had at his disposal, as gifts from his father, almost anyone could’ve made a fortune in real estate in places. like New York City. Still, Trump sees everything in terms of personal benefit to him.

Those characteristics of his personality and behavior, perpetuated over his entire life cycle, thus lead to my speculation about why Trump stole the documents and refused to return them even to the point of being criminally charged. He planned to sell them to foreign governments that would be very interested in seeing top secret U.S. government intelligence reports and would likely pay top dollar for them. If Trump were, by some miracle, to escape a finding of guilt in the documents case, and regain possession of the documents, you can expect Trump to monetize the documents very quickly. It’s what he does.

DOJ Should Investigate Stefanik for Obstruction of Justice

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Reliable reports say that Elise Stefanik, member of Congress and GOP Conference Chair, has filed an ethics complaint with the New York State Commission on Judicial Conduct against Judge Arthur Engoron who is presiding over the civil fraud trial of Donald Trump. https://tinyurl.com/y4mka7xs and https://tinyurl.com/3nyb2p4p

Trump is accused of fraud and has already been found guilty. The question remaining in the case is the extent of the penalties that should be imposed on Trump and the Trump Organization.

You may wonder how it is that Trump has been found guilty already when the trial is still ongoing. I will explain.

Judge Engoron concluded based on the pleadings in the case that the legal standard for “summary judgment” had clearly been met. Summary judgment is a process by which courts routinely adjudicate claims when there is “no dispute of material facts” evident from the pleadings. Cornell Law School elaborates using Rule 56 of the Federal Rules of Civil Procedure, which is typical:

… in order to succeed in a motion for summary judgment, a movant must show 1) that there is no genuine dispute as to any material fact, and 2) that the movant is entitled to judgment as a matter of law. [https://www.law.cornell.edu/wex/summary_judgment]

“Judgment as a matter of law” means that, given the undisputed material facts, there is no legal basis for finding other than in favor of the movant. Even in a jury trial, motions for summary judgment may be brought and granted when there is no dispute of material fact in the evidence.

That brings up another point to understand. The Trump civil fraud trial is a “bench trial,” meaning there is no jury. The parties are relying on the judge to hear the evidence and issue the decisions. Why? Because Trump’s attorneys did not demand a jury trial and you don’t get a jury unless you ask for one.

Returning to Rep Stefanik’s complaint, she is not a party to the litigation and has no “standing” to be one. “Standing” is a very important principle used in all courts. In Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), for example, the U.S. Supreme Court established these principles to determine whether a party has “standing” to sue:

    1. The plaintiff must have suffered an “injury in fact,” meaning that the injury is of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent;
    2. There must be a causal connection between the injury and the conduct brought before the court;
    3. It must be likely, rather than speculative, that a favorable decision by the court will redress the injury. [https://www.law.cornell.edu/wex/standing]

The “standing” principle is the one that prevents people from filing legal complaints based on their political opinions where there is no specific injury to their interests. If it were otherwise, the legal system would be completely bogged down as everyone who was unhappy with anything could sue. Imagine you don’t like the way a local car dealer is promoting sales. Unless those promotions have directly impacted you in the purchase of a car from the dealer, you can’t sue in court to compel the dealer to change its advertising or pay you damages because you are offended by its commercial practices.

So, what is going on with Stefanik, a rapid conspiracist and Trump worshipper?

Simply this: Stefanik has attempted to derail Trump’s civil fraud trial, which he is losing badly, by challenging the judge’s conduct of the case in which she has zero actual interest other than her political desire to prevent Trump from being held accountable. In short, she has no standing to challenge the judge. What happens to Trump in his civil fraud trial is none of Elise Stefanik’s business. Her filing against the judge is an effort to obstruct justice. She is using her position as a member of Congress to try to influence the outcome of a civil fraud trial in which she has no economic or other interest other than her political desire to prevent Trump from being held accountable.

The extreme language used by Stefanik suggests that Donald Trump himself, or lawyers working for him, were intimately involved in drafting the document. It repeats most of the hysterical claims Trump and his lawyers in the fraud case have made, trying to provoke the judge into making a reversible error and for which Trump has been twice fined.

The GOP has long claimed to be the party of “law and order” but as regards Trump, it seems unwilling to let the legal system play out. If Judge Engoron has violated the judicial ethics code and made egregious trial management errors that have prejudiced Trump, the legal system provides appropriate remedies that all other Americans would have to pursue.

Stefanik and her Republican cronies aren’t willing to use the legal system properly because they’re afraid Trump will be found guilty of civil fraud and the multiple felonies with which he has been charged. So, they attack the judges, attack the clerks, attack the legal system in an effort to interfere with the system of justice established by state and federal law. They are terrified that Trump, at long last, will be exposed for the criminal that he is and held accountable under the law, like any other American would be in similar circumstances.

The Above the Law article cited in the opening paragraph of this post makes the point that Stefanik’s argument about the valuation of the Mar-a-Lago club is false:

In fact, the court simply noted that this was the value assigned by Palm Beach County tax assessors — a value which Trump himself militated for in an effort to decrease his tax liability. And that’s the entire point of this trial: Donald Trump committed persistent fraud by representing the value of his assets as astronomically high or preposterously low depending on whether he was seeking to evade taxes, score a conservation easement, or get a loan.

He also had a nasty habit of leaving out unpleasant details like rent control restrictions, options to purchase at below-market rates, and the fact that local governments had already put the kibosh on future development. Indeed, Trump told just such a lie on the witness stand Monday when he shrugged off a 2002 document in which he agreed that Mar-a-Lago could neither be converted to a private residence nor subdivided for development, writing that “the Club and Trump intend to forever extinguish their right to develop or use the Property for any purpose other than club use.”

On the witness stand, Trump made the idiotic claim that he still retained development rights because “‘Intend’ doesn’t mean we will do it.”

Another article about Stefanik’s maneuver notes that:

the complaint has all the hallmarks of Trump’s legal team pulling the strings by using the New York Republican as a cut-out to go after Judge Engoron. [https://tinyurl.com/4rv63d38]

Those indicators include multiple legal citations in correct form that Stefanik, a non-lawyer, would likely not have specified on her own.

Given the virtually identical stream of accusations made by Trump and his lawyers in court, the Stefanik complaint does appear to be a ruse perpetrated to derail the trial in which Stefanik has no legally cognizable interest.

For that reason, she is using her office to obstruct the justice process. DOJ should initiate an investigation into the backstory for her action and charge her with obstruction if the facts thus found are as they strongly appear to be.

Who is the Fool?

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In the movie Can-Can (1960), Frank Sinatra, playing, François Durnais, is in court and addresses the judge:

“Your honor, I am a member of the bar and wish to represent myself.”

The Judge replies: “You realize that a lawyer who represents himself is said to have a fool for a client?”

François Durnais responds: “That may be true, but it’s better than having a fool for a lawyer.”

The website https://quoteinvestigator.com/2019/07/30/lawyer/ attributes the earliest iteration of that retort to a book published in 1682 and to numerous others thereafter.

I mention that as background to the remarkable circus playing out in the New York fraud trial against Donald Trump in which it is alleged he, and perhaps other family members, manipulated the values of various assets to secure loans at favorable rates and reduce taxes below appropriate levels.

Overall, the testimony of Trump and family members consists of two points: (1) Trump: the businesses were worth way more than we claimed, I don’t care what anyone says; everyone involved made money so what’s the problem? I relied entirely on accountants and others for valuations despite what I might have signed off on; sure, I was a trustee but, no, I take no responsibility; and (2) Trump family members: Who, me? I wasn’t involved. I know nothing; I relied entirely on accountants and others for valuations despite what I might have signed off on; I just took the money that magically appeared at the end of the rainbow; no, I take no responsibility.”

And together: “We are innocent of all charges, as usual. We did nothing wrong. We are rich because we deserve to be. Thank you; we’re leaving now.”

Nothing about the reported testimony of Trump and family is surprising. What is surprising, shocking really to any sane, responsible lawyer, is the manner in which Trump’s lawyers have adopted his personality and style in addressing the prosecutors and the judge.

It is the most appalling display of bad judgment imaginable. I am hard to surprise at this late stage of life but am stunned that lawyers would think it’s in their client’s interest to attack the prosecutors openly and repeatedly and, worse, to attack the judge handling the case. The normal, and correct, approach is to be respectful at all times, make your arguments, fight for your evidence but always, always show respect to the judge and court staff.

The only “strategy” implied by Trump’s lawyers’ contrary approach is that, having no other meaningful or substantive defense, their attacks might goad the judge into making an appealable mistake by, for example, lashing out at the defendants or making an egregiously bad ruling out of frustration/anger.

The judge is highly experienced, however, and likely knew what was coming. So far, based on the reports, he has maintained his composure and has not made any meaningful mistakes that would support an appeal by the Trump as against the overwhelming evidence that Trump approved, indeed drove and promoted, the use of wildly incorrect asset values in the pursuit of his life-ambition to enrich himself beyond all reason.

How Trump’s attorneys think it is smart to attack the very people who hold their client’s future in their hands is simply beyond understanding, unless it is simply their personal need to get maximum media exposure for themselves by behaving like hooligans in court and to provide more fodder for Trump’s political base that is prepared to believe anything except the truth about him and his grifter family. If that’s what they are doing, they deserve the severest sanctions for gross malpractice for, among other things, putting their interests ahead of their client’s.

In this case, the adage about having a fool for a client appears to miss the mark. This client appears to have fools for lawyers as well. Client and lawyers alike.

Guns Shows & the American Curse

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[The following is a guest post by Nadine Godwin, a longtime friend and former editor of Travel Weekly among other gifts. She routinely spends huge time investigation important issues that are being considered in federal agencies and preparing/circulating alerts, often with drafts of comments. Her messages to a select list of recipients date back to 2017]

The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has proposed a rule that would effectively, for the first time ever, require almost anyone who sells guns on the Internet or at gun shows to obtain licenses to make those sales.

This matters because holders of federal firearm licenses are required to conduct background checks on their buyers, to sell only guns with serial numbers and to record the sales.

Currently, gun sellers on the Internet and at gun shows don’t have to be licensed, which means they don’t have to do background checks. This circumstance is often called the gun show loophole, but the loophole is way bigger than gun shows.

These days, nearly a quarter of all gun sales occur without background checks or adherence to the other rules associated with a license to sell firearms. Furthermore, up to 80% of firearms used to commit crimes are obtained from unlicensed sources, i.e., without background checks.

Meanwhile, Americans overwhelmingly (87% to 90%, depending on the poll) favor expanded background checks for gun buyers. I support the ATF proposal because I am one of that huge majority.

The deadline for comments on the ATF proposal is Dec. 7. 

Background + some details of the proposal

Sellers on the Internet and at gun shows aren’t licensed now because the relevant law, the 1968 Gun Control Act, was too vague about which gun sellers must be licensed. Besides which, Internet selling wasn’t a thing in 1968.

As a result, brick-and-mortar operations have gotten licenses, but other sellers have not been pressed to do so. Gun traffickers, individuals with dodgy backgrounds and buyers with lethal intent could thus make their purchases essentially unnoted. It is easy to see how this increases the odds for gun violence.

For the good news (my view), the Bipartisan Safer Communities Act, passed last year, set the stage for expanding background checks.

Whereas the 1968 legislation required licenses for those with the “principal objective of livelihood and profit,” the 2022 Safer Communities law requires licenses for anyone who deals in guns “to predominately earn a profit.” That language isn’t very specific either, but it does contemplate licenses for anyone selling guns for profit even if profits aren’t a significant portion of the seller’s livelihood.

It was left to the ATF, the only federal agency with a mandate to regulate the gun industry, to create the rule that makes clear which sellers must be licensed, based on the updated language found in the 2022 law.

For starters, the ATF proposal states, a person is presumed to be in the business of selling firearms if among other things the person:

    • Repetitively sells or offers for sale firearms within 30 days after they were purchased,
    • Repetitively sells or offers for sale firearms that are new, or like new in their original packaging, or
    • Repetitively sells or offers for sale firearms of the same or similar make and model.

Furthermore, the proposal says, it will be presumed a person intends to “predominantly earn a profit” if among other things the person a) promotes a firearms business, however casually; b) keeps records documenting profits and losses; c) obtains a state or local business license for the sale of firearms, or d) buys a business insurance policy that covers firearms inventory.

The rule, if finalized, will apply to gun sales in flea markets and mail-order businesses as well as in the oft-discussed Internet and gun show venues.

The ATF estimates that anywhere from 24,540 to an astonishing 328,296 unlicensed persons selling guns for profit would be affected by this rule.

Geez, a lot of people sell guns!

What to do

The proposed rule wouldn’t require universal background checks for gun sales (our feckless Congress must legislate that), but it gets us a lot closer.

If you support this enhancement to ATF regulations, please speak up by filing comments by Dec. 7 here: https://www.regulations.gov/commenton/ATF-2023-0002-0001.

I am adding a few sample messages, prepared by gun safety groups, that you can use for inspiration.

Finally, please share this letter with anyone you think might want to comment, as well.

Thanks

Nadine Godwin

P.S. For those who would like to know more about this proposal, I am also adding a helpful explainer. It was prepared by Giffords, a gun safety advocacy group founded by former Rep. Gabby Giffords after she was shot in the head and nearly killed while meeting with constituents in Arizona in 2011.

SAMPLE MESSAGES:

From Brady Campaign to Prevent Gun Violence

I strongly support the proposed rule to ensure that individuals who are “engaged in the business” of selling firearms are licensed, thus requiring them to complete background checks for all firearm sales and maintain records of those transactions, and that dealers who have lost their licenses may no longer sell firearms to the public.

A recent study found that more than one in five gun sales in the U.S. are conducted without a background check, amounting to millions of off-the-books gun transfers annually; many of these transactions are facilitated by individuals who profit from the repetitive sale of firearms yet avoid the oversight required of licensed dealers.

This is a public health and safety issue, and I urge the Department of Justice and the Bureau of Alcohol, Tobacco, Firearms and Explosives to finalize the rule in order to prevent further firearm transfers to prohibited purchasers.

From Everytown for Gun Safety

Our background check system was created to keep firearms out of the hands of individuals who are not allowed to purchase or possess them. But loopholes in the system — like the ones that allow unlicensed gun sellers to sell guns online and at gun shows without running background checks on their buyers — undermine it.

That’s why ATF’s proposed rule must be finalized. It will help close loopholes in our background check system that have, for decades, been exploited by bad actors like gun traffickers, straw purchasers and other prohibited persons, including domestic abusers and convicted felons.

I support the proposed rule because it makes clear that firearms dealing can take place wherever and through whatever medium guns are bought and sold — whether at a gun show or at an online marketplace — and that conduct, such as selling guns of the same or similar kind and type, constitutes firearms dealing. Such gun sellers will need to become licensed dealers and, as licensed dealers, run background checks.

More to the point, the proposed rule will save lives. That’s why I support the proposed rule and why I encourage ATF to finalize it.

Another canned message prepared by Everytown for Gun Safety

I support the ATF’s proposed rule (Docket No ATF 2022R-17), which would dramatically reduce the number of guns sold without a background check.

I urge the ATF to finalize this rule as soon as possible. Guns sold without background checks — both online and at gun shows — are a huge source for gun traffickers and people looking to avoid a check. These guns often end up trafficked across state lines, recovered at crime scenes in major cities and used against police officers. This contributes to the gun violence epidemic plaguing our country.

The long-standing lack of clarity around which sellers must become licensed and run background checks has made this problem all the worse.

I support the clear commonsense standard laid out in this rule: Anyone offering guns for sale online or at a gun show is presumed to be trying to make a profit and should therefore be licensed and run a background check on each customer. This rule will save lives and should be urgently finalized.

GIFFORDS

COURAGE TO FIGHT GUN VIOLENCE

 FACT SHEET: FEDERAL REGULATION TOEXPAND BACKGROUND CHECKS

THE PROBLEM

Under current federal law, certain individuals with a history of felony convictions, domestic violence, or involuntary mental health commitments are prohibited from purchasing or possessing firearms. This law is enforced primarily through the National Instant Criminal Background Check System (NICS), which licensed gun dealers, those holding a Federal Firearms License (FFL), are required to contact, either directly through the FBI or indirectly through state or local law enforcement, to determine a person’s eligibility to possess firearmsbefore selling or transferring a firearm to them.

There is, however, a significant loophole that exists when guns are sold by unlicensed individuals. Only those sellers who are required to obtain an FFL through the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) must perform background checks via the NICS system. As a result of this loophole, unlicensed gun sellers frequently sell guns without background checks online, at gun shows, and through unregulated person-to-person sales.

This loophole makes it far too easy for people prohibited from purchasing or possessing guns to circumvent the laws on the books and obtain guns. Up to 80% of firearms used for criminal purposes were obtained fromunlicensed sources, meaning no background check was required. With the rise of social media and the expansion of internet access, new avenues for unlicensed gun sales have opened up via websites like Armslist.This expansion of access has made the background check loophole an even more salient issue, and in fact,nearly a quarter of gun sales in recent years have occurred without a background check.

“ENGAGED IN THE BUSINESS” AND CHANGES MADE BY BSCA

Fortunately, the landmark Bipartisan Safer Communities Act (BSCA) provides a remedy for the above issue. The 1968 Gun Control Act (GCA) mandates that all those “engaged in the business” of selling firearms acquire an FFL. This status triggers federal laws and regulations that licensees must follow, including the requirement that they conduct a background check on potential purchasers. Before the BSCA,the GCA was unclear as to the level of sales activity that distinguishes someone who sells guns occasionally-and is thus not subject to licensing requirements-from someone who is “engaged in the business” of firearm sales and qualifies as a firearms dealer.

The BSCA updated the definition of “engaged in the business.” Now, instead of including only those who sellguns with “the principal objective of livelihood and profit,” the law includes anyone who deals guns “topredominately earn a profit.”

giffords.org