Author Archives: shiningseausa

Bloomberg – Where from Here?

Disclosure: I have watched very little of the Democratic shouting matches called “debates” by the media. I tried early on; I really did. It was too much. Watching the mob of aspirants to the highest office in the land yell at each other like school yard children was too much to bear. Now the crowd has thinned but the yelling continues.

I did watch for a while last night though, mainly to see how Michael Bloomberg fared in the face of entirely predictable attacks from the others. It was not pretty to watch. I was shocked, which is not easy, to see Bloomberg so unprepared to address with sharp, brief responses the foreseeable assaults related to stop-and-frisk, workplace and personal hostility toward women and all the rest.

I suspect that in what counts for “normal life” for a billionaire Bloomberg is never spoken too as he was during last night’s free-for-all. He seemed both surprised and unprepared. His reactions were weak and his substantive responses were astonishingly poor in light of the circumstances. He tried to suggest that the women who signed NDAs would not want to be freed to tell their stories and looked paralyzed when Elizabeth Warren demanded to know how many there were. He tried to suggest that the whole fuss was some kind of reaction to bad jokes on his part. Ugh.

My guess is that Bloomberg’s campaign is finished. I hope so. He should save all that money and prepare to support the eventual nominee in the forthcoming battle of titans with Donald Trump. If Bloomberg wants to be remembered well, he has the best chance by being the financial angel behind a winning Democratic campaign against the gangster president that now inhabits the people’s house in Washington. His staff has shown some chops in creating aggressive political ads and could be very helpful to the nominee who will have his/her hands full with the heavily financed, foreign-influenced/supported Trump machine. Bloomberg’s financial and other support for the Democratic nominee would be the highest and best use of his considerable resources.

As for the his/her question, it seems clear to me that Elizabeth Warren is the most qualified among the remaining Democratic contenders. Having said that, I am mystified almost to despair at why Ms. Warren feels it is necessary to raise her voice. I understand, of course, that being on a stage with Bernie Sanders, who apparently can’t speak without gesticulating wildly and shouting, is challenging. The format also does little to produce the kind of orderly disputation that I would like to see from those seeking the peoples’ approval to lead the nation. But Pete Buttigieg, who someday (but as a small-town mayor not now) will be ready for the presidency, managed to remain calm and steady at least while I was watching.

To be clear, I’m not talking about the obnoxious “she’s too angry to be likable” accusations directed at Warren. My concern is not about “women being too aggressive.”  I am asking for someone with her knowledge and experience to state, in an orderly but forceful and compelling way, why her intellect, ideas and experience make her more qualified to be president than the other aspirants and more likely to be able to defeat Trump. The best way to get past all that garbage about women being too pushy is to stop behaving like Bernie Sanders and become the steady intelligent rock we all, I hope, are looking for. Someone who can eat Trump’s lunch in debate, not by out shouting or name-calling him but by showing through reason why he must be removed from the presidency.

There is no doubt, in my view, that many of Warren’s substantive ideas are ahead of their time and will face resistance even in a majority-Democratic Congress. Warren is, I am convinced, far better able to deal with that reality than the other candidates with the exception of Joe Biden.

So, what about Biden? He has the greatest relevant experience. He was a loyal VP to Barack Obama. He is a known quantity to our allies abroad and, as far as can be known, is generally respected by them. He has “presidential temperament.” Joe Biden has a lot to commend him. To be sure, Biden has some flaws. They all do, but none of his flaws even registers against the flaws of the sitting president. I suspect that the worst substantive objection to Biden is his age, but that is a charge against multiple contenders and can be resolved with a good choice for VP. There are numerous respectable alternatives that would lend strength to the Democratic ticket.

So why not Joe? Perhaps the most compelling substantive reason is the argument that it’s time for new blood, bold ideas even if too advanced for immediate adoption and so on. I believe, as I have for decades, that for the most part the success or failure of a president turns on the people with whom he surrounds himself. The president is not the source of all the good ideas nor is he effectively able to control the execution of every project his/her administration attempts. I am assuming, of course, that, unlike Donald Trump, the president understands the responsibilities of the office, pays attention to the advice of his experts, listens carefully and so on. You know, the normal attributes of a fully functioning adult.

And, in the end, it is the president who decides. That is why it is so important to elect a leader who will listen, study, respect truth as best it can be determined, and act with full and unending devotion to the public, as opposed to one’s private, good. The presidency carries the gravest burdens, the heaviest responsibilities to make the most difficult choices a human being ever must make. That is why we need a leader with the attributes of maturity, selflessness and honesty that underpin the best chance of getting things right.

It is, I suggest, time to stop screaming and start speaking. Stop tearing each other down and start addressing the real problem that one of our two political parties has willingly made itself hostage to a right-wing cabal of dishonesty and incompetence. In my view, the red MAGA hats are the functional equivalent of the swastika. If re-elected, Donald Trump will conclude he is, in effect, a monarch and democracy in America will be dead. That is the challenge we face, so we had best choose wisely. And then, it all comes down to getting out the vote. Everyone who stays home on Election Day because their favorite Democrat wasn’t nominated will be, in effect, voting for Donald Trump’s re-election. If you know such people, it is time now to start explaining this to them. There are only two sides to this fight. Everyone must choose. It is time

Some Notes on the “Trial” of Donald Trump

In their opening arguments, the House Democratic managers (read “prosecutors) summarized the testimonial and documentary evidence gathered during the House investigations. Those investigations were, of course, incomplete because the White House prevented many key witnesses from testifying and refused to produce thousands of pages of documents that were subpoenaed from numerous sources. Meanwhile, many Republican senators have stated that they are not interested in the evidence; they will acquit Trump regardless.

Certain questions naturally arise. I will endeavor to answer them.

Does acquittal by the Senate amount to a finding that Trump is innocent of the charges?

Clearly, no. The opening argument by Trump’s defense counsel suggests their central argument is that the House has failed to satisfy its burden of proof. Trump, they say, “did nothing wrong.”

In a situation where many members of the jury (here, the Senate) have stated that they don’t care what the evidence shows and where the majority party, led/owned by the defendant, has/will vote against allowing additional witnesses with first-hand knowledge and against allowing additional documents bearing on guilt to be introduced, it is an easy step for the majority to then vote to acquit on burden-of-proof grounds. But, in doing so, they will not be finding Trump innocent in any meaningful legal sense. At best/worst, they will be saying that you had to fill the evidence cup past half-full and, thanks to our resistance, you failed.

In this way, the Republican majority can bring this phase of Trump’s “trial” to an end, but they cannot find him “innocent.”

What are the implications of Trump withholding testimony/documents?

Republicans defenders are arguing that the House failed in its burden of proof while the defendant, Trump, prevented relevant evidence from being gathered, knowing that legal challenges to his actions would consume most or all of the remaining months until the election, thereby preventing a verdict.

However, when a party possesses evidence about the claimed falsity of a proposition, call it Prop A, but withholds/conceals that evidence, the general principle applied is that an adverse inference against that party is warranted and that Prop A may be fairly found to be true. There is no reason presented in this case to conclude otherwise. The “jury” should therefore find that the testimony of Bolton, Mulvaney and the others, and the documents whose production was refused, all point to Trump’s guilt.  This is particularly true when the “jury” itself has the power to compel production of the testimony/documents and declines to do so.

What are the implications of Senator Susan Collins sending a “note” to the presiding judge, Chief Justice Roberts, complaining about comments made by one of the House managers?

This question is really interesting. In a real trial, jurors may not individually communicate with the judge about matters of substance in the trial with some narrow exceptions. For example, a juror might request that the clerk or bailiff present the judge with a question about the trial, but this would be a question openly shared with all parties. Jurors cannot have secret or private conversations with the judge about the trial while it is going on. And it is beyond imagining that a judge, having somehow received a private note from a juror, would act on it without full and open disclosure to the parties and their attorneys.

This episode, which led to the Chief Justice reprimanding both parties “equally” (shades of Charlottesville), raises the question whether other Republican senators have been privately communicating with the presiding officer and, if so, what those communications have said. I wonder why Majority Leader Schumer or the leader of the House Managers, Schiff, has not raised this issue.

Is the impeachment process an attempt to subvert the results of the last election or to prevent the subversion of the next one, as the Republicans claim?

Of all the “defenses” raised by Trump’s counsel, this is perhaps the dumbest. Under the U.S. Constitution, it is self-evident that impeachment may lead to removal of the president from office. Removal necessarily would “undo” the result of the last election. This concept is elementary and obvious. It is no more a “defense” than the argument that the president believes he’s immune from accountability and therefore he is. Removal undoes the last election because it was intended to.

As for possible debarment from running again in 2020 after being removed, the Senate practice has been that this question is separate from initial impeachment and further that it may be decided by a simple majority vote. See https://herit.ag/2TTlQZI The Trump defense counsel argument that the Democrats are trying to affect future conduct by the president is thus unfounded except to the extent that, once removed, his ability to conduct foreign policy or other official acts on behalf of the United States would definitely end.

Is it correct that the president can claim “absolute immunity” for his close aides or that “executive privilege” prevents any testimony or documentary production whatsoever from being compelled? 

This “defense” is unjustified by any known authority. Whatever else it may mean, the Supreme Court decision in United States v Nixon, 418 U.S. 683 (1974) laid to rest the argument that a president may refuse to disclose information dealing with his own abuse of power in office. Lawyers will no doubt argue about the scope of that decision, but to find that it allows a president to withheld absolutely and without limit testimony/documents dealing with his abuse of office would effectively render the impeachment power a nullity. It would turn the ability to impeach a president on the ability to discover key evidence without access to the most relevant information. There is, I believe, no support for any concept of absolute immunity.

As for more specific immunity, in the form of “executive privilege,” there is, of course, a basis in American law for permitting the chief executive from being compelled to disclosure certain types of interactions with advisors on certain subjects. This is analogous to the more well-known attorney-client privilege. But you can take it for true that attorney-client privilege does not protect a client or the attorney from discovery of information related to criminal behavior. Thus, if the attorney and client meet and the client asks the attorney for advice on how best to conceal unlawful currency transactions, the exchange in that meeting will not be protected by privilege and the attorney may be compelled to testify about it and may be compelled to disclose notes made in furtherance of the advice on how to break the law.

So too for executive privilege. Absent an extraordinary compelling argument that the national security of the United States would clearly be imperiled by discovery (e.g., demanding that the National Security Advisor state in a deposition everything he knows about the nuclear codes), executive privilege may not be asserted to conceal evidence that the president abused the powers of his office. Moreover, executive privilege, like attorney-client privilege, must be asserted with respect to specific inquiries. It may not be asserted as a blanket excuse from discovery because, among other things, it then becomes in substance a claim of “absolute immunity.”

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I end by acknowledging I am not an expert on some of the above analyses, but I invite anyone who thinks I am wrong about any of them to demonstrate that by citation of authority and convincing argument other than Republican talking points. I rest my case.

 

 

 

 

 

 

 

 

 

 

 

 

 

“Civil Discourse” As a Device to Suppress the Truth in the U.S. Senate

Well, well, well, what a sad state we have come to. The Chief Justice of the United States Supreme Court, sitting as judge in the Senate proceedings on President Trump’s impeachment, ignored blatant personal attacks by White House counsel in their opening salvos against the lead House manager, Rep. Adam Schiff, reminiscent of the hysterical, inappropriate and repeated comments of Reps. Jordan, Nunes, Meadows and other Republicans during the House’s initial consideration of impeachment. White House counsel in fact lied to the Senate about the House investigative process that led to the impeachment. Schiff, when he had the opportunity to call out those lies, spoke diplomatically, saying he would not call counsel liars but would solely note that they were “mistaken” in their descriptions of the House process.

Later, after a ridiculously long day and night (about 13 hours) of alternating argument on motions to subpoena documents and witnesses, all of which were rejected by party-line vote, Rep. Nadler had a turn at the podium. Nadler was there to argue for a subpoena to issue for the testimony of former National Security Adviser John Bolton. In the course of his argument, Nadler asked of the Senate, “Will you choose to be complicit in the president’s coverup? So far, I’m sad to say I see a lot of senators voting for a coverup, voting to deny witnesses — an absolutely indefensible vote, obviously a treacherous vote.”

As reported by Vox.com,

The president’s counsel has no standing to talk about lying,” Nadler said, pointing out that the counsel lied about Trump not being invited to take part in the impeachment inquiry. He told the Senate he personally had invited Trump — which is true — and that “a few days later, we received a letter from Mr. Cipollone on the White House stationary that said, ‘No, there’s no interest in appearing.’ So on the one hand, they’re lying —”

Nadler cut himself off there, and returned to his effort to rebut the White House’s claims with facts. But he returned to his point when concluding his remarks, saying the president “defies everything. Defies the law to withhold aid from Ukraine. Defies the law in a dozen different directions, all the time. And lies about it, all the time. And sends Mr. Cipollone here to lie about it.”

…. Nadler was correct in asserting the White House counsel was lying to the Senate. As Vox’s Aaron Rupar [see https://bit.ly/2TPOfzI] noted, the defense team’s opening remarks alone contained at least four easily refuted lies. And as the proceedings went on, those lies — particularly the claim that Trump had been barred from participating in the impeachment inquiry — were repeated.

Nadler’s statements were an attempt to push back against these false claims — and given the fact that they were delivered after more than 10 hours of deliberation, they may have been couched in some frustration.

Given that frustration, and the length of the day, working to avoiding fistfights on the Senate floor is admirable. And it is important that the drama of the trial be contained to discussions of presidential wrongdoing, rather than on fights.

But if there is no way for either side to openly challenge when the other side is not presenting arguments based on the facts, there is little point in having the trial at all. The way it will end seems predetermined, and what Trump did with respect to Ukraine is clear, meaning its value lies in hearing the best — fact-based — cases for why the president does or does not deserve removal.” [https://bit.ly/2Gd1wKy]

Nadler, likely fatigued by the length of the proceedings as dictated by the Republican majority, spoke very bluntly and, for him, passionately.

Now, the president’s lawyer rose to object, taking umbrage to what he argued was an affront to the Senate, demanding an apology. Suddenly humble and solemn, Mr. Cipollone acted out his new persona as a wounded warrior, advocating not for himself, of course, but for the Senate, for the great body itself.

Astoundingly, in my opinion, the Chief Justice now took it upon himself to admonish the parties to remember that they were speaking to the “world’s greatest deliberative body.” He claimed to be chastising both sides equally, but it was not equal. Not even close.

White House counsel not only attacked House managers personally, but they lied to the Senate about the House process, a fact noted by commentators on news programs. I am pretty hard to surprise these days, but I shared the astonishment of legal commenters that White House counsel would lie to the Senate about something so well-known and so obvious. But they did it. No one demanded they apologize. No one wept about the smudge of the Senate’s supposedly stellar reputation as the “world’s greatest deliberative body” when counsel for the president openly misrepresented facts.

I hope that the Chief Justice is going to manage these contentious and unprecedented proceedings in a more even-handed manner going forward. I am not suggesting he intervene to critique the parties’ arguments as they are made. The parties should be given leeway to make their respective cases. But if we’re going to maintain the pretense that everyone in this conflict must leave passion at the door, that should apply to both sides in equal measure. The phony umbrage of White House counsel is of a piece with the president’s continuing efforts to suppress evidence and damage the credibility of the House investigation. The fact that they represent the president does not authorize the judge in the case to place his thumb on the scale of justice. The next time White House counsel attack the integrity of the House managers or grossly misrepresent known facts, the Chief Justice must call them out immediately and put a stop to what is, in every manifestation so far, a one-sided and fundamentally unfair proceeding.

ADDED NOTE: While the impeachment trial is underway, the Senate GOP is tweeting false statements about Rep. Schiff and the House Democratic process that led to Trump’s impeachment. Question: are Republicans to be allowed to beat their chests about “civil discourse” while simultaneously lying to the world in another forum?

Profiles in Cowardice

I have just read the initial Answer of President Donald J. Trump to the array of charges set forth in the House of Representatives Articles of Impeachment. It reads like a school-yard tantrum. It refers to a “brazen and unlawful attempt to overturn the results of the 2016 election and interfere with the 2020 election,” assertions that are interesting if only for their illogical reasoning. I won’t waste time on “brazen” but will note that impeachment by its very nature reverses the electoral result that places any president in office. Surely, the president’s lawyers understand that. What do they really mean? And, it’s a bit ironic, to put the most polite words to it, that they would argue that the impeachment will interfere with the next election, since that is the very offense by Trump for which the impeachment investigation and articles of impeachment were brought. So this opening claim is really just “you’re one too!”

The opening gambit continues with references to the “will of the people,” a matter that Republicans maintain was definitively settled by the 2016 election. Yet, the evidence is clear that, whether or not Trump coordinated on it, the outcome was heavily influenced by a massive Russian disinformation campaign. And there is the small matter of Hillary Clinton having received nearly three million more votes than Trump. While the technical outcome, to borrow a turn of phrase from Alan Dershowitz, of the Electoral College gave the election to Trump, it is more than a stretch to argue that this result reflected the “will of the people.” At best it was the will of the people as distorted by the EC that grants outsized influence to states with smaller populations based on a scheme adopted in 1787 that was a compromise to gain the support of the slave states of the south.

Trump’s lawyers assert that absent a claim of a “crime,” there can be no constitutionally sound impeachment. That argument is simply wrong. Interestingly, Alan Dershowitz who was recently added to Trump’s defense team argued the exact opposite when addressing the question in the Clinton impeachment. https://cnn.it/37gUsJ1 While lawyers are certainly entitled to change their minds in the face of new information, Dershowitz claims that what he said in 1998 is the same as what he says now. That claim is simply preposterous although it is entirely consistent with the continuing positioning of the Republican Party that the truth is whatever they last said it was.

After a lengthy series of changing theories of defense of the president, the defense has at long last come down to the reality that the only “viable” defense is that even if Trump acted as claimed in the articles of impeachment, it doesn’t matter because the president can do whatever he wants. The defense flatly claims that the president did “absolutely nothing wrong.”

We have reached this state because while it permissible to argue defenses in the alternative, in the end the evidence, were it admitted into the Senate record, would establish beyond a reasonable doubt (the standard of proof in criminal cases) that Trump did exactly what was charged in the articles. And the argument that the president of the United States is immune from Congressional oversight, including impeachment, is simply wrong. It flies in the face of the language and historical context of the Constitution’s balance-of-powers scheme.

I am not going to bore you or myself with an excessively detailed dissection of the Trump defense memo. But I will note the remarkable argument that the proof that Trump did nothing wrong is established only by … Trump’s own after-the-fact claims that he did nothing wrong. In effect, the defense is that the president is not guilty because he said so.

The memo also argues that there is no problem here because ultimately the aid to Ukraine was released without Ukraine announcing the investigations Trump wanted. That, I suggest, is an implicit admission that Trump in fact did demand announcements of investigations as a condition for releasing the aid, but eventually caved because his attempt to blackmail Ukraine failed. This is the “no harm, no foul” argument, but it assumes away the central question. The “harm” occurred when the demands were made. Harm does not depend on success of the scheme. The scheme itself was harmful to American foreign policy and security interests and was contrary to American law.

I have also listened all day to the first day of the impeachment proceedings. Several observations are in order. First, the presentations led by Rep. Adam Schiff with participation by Rep. Zoe Lofgren, Rep. Val Demings and Rep. Jason Crow were uniformly brilliant in virtually even way. By contrast, counsel for the president, Jay Sekulow, Pat Cipollone and Patrick Philbin were angry and hostile, attacking Schiff personally and lying to the Senate about the process that had occurred in the House investigation. Schiff, smartly, declined to call them liars and instead said they were simply “mistaken” in their descriptions. I have to say I was surprised at the brazen manner in which these lawyers misrepresented well-known facts in an effort to preserve Trump/Republican talking points.

The Senate process if, of course, blatantly stacked against the Democrats, with the result that all the early motions to have the Senate subpoena documents and witnesses that had been blocked by Trump were defeated by straight party-line votes of 53-47. Nevertheless, the Democrats are making their motions one at a time, with attendant periods of two hours (divided equally between the sides) for argument. I stopped watching when the dinner recess was called at about 7:30. I expect the proceedings to continue deep into the night.

The Democrats, it seems certain, are going to fail to break the Senate Republicans’ unity and thus the outcome of the sham trial appears foreordained. But the evidence, or at least clear outlines of the evidence, are making their way into the record through argument. This process seems certain to further damage Trump’s “credibility,” especially given that most polls indicate a substantial majority of the public prefers that witnesses be called and documents be produced. Neither appears likely to happen.

Tomorrow, as the saying redundantly goes, is another day.

 

No Way to Run a Justice System

Note: This piece is being simultaneously posted at autumninnewyork.net.

Not two years after moving to New York, the justice system turned its attention, randomly, I’m sure, to me by sending me a notice to report for jury duty. At the time, reporting would have conflicted with a business commitment, so I asked for, and received, an automatic deferral. I chose January 16 as my report date. Fate, of course, would inevitably intervene and an important business meeting was unavoidably scheduled for January 17.

That’s the beginning. When I wrote the first draft of this post, it was all minute-by-minute, blow-by-blow in the same excruciating detail as I experienced a wasted day-and-a-half of my life for no discernible purpose. Upon re-reading the draft, I realized it was boring, even to me, so I decided on another approach.

What was wrong with the process whereby I was called upon by the state to assist in the administration of justice for parties who had demanded a trial by jury, as guaranteed by law in appropriate cases? Just about everything. The process seemed like something from another time, a relic of the days when everything was done manually and the administrative process was a slave to established practice no matter how wasteful.

You are ordered to report, then after arrival in the Jury Assembly Room (452) are told that you may be there between one and three days. If you’ve already had a postponement, you can go down to Room 139 and make a pitch for further relief but if called while there you may be forced to return again for another stint. And the implication is that your chances down there are slim at best. So, I decide to take a chance and stay put. Mistake. I collect my Juror Questionnaire and fill it out. I foolishly think this is good because when the lawyers see it, they will immediately disqualify me and I can leave. Trial lawyers generally are extremely averse to having other lawyers on their juries.

I am eventually called with a group of 35 others to follow some lawyers to a courtroom where 10 are selected for voir dire, the questioning by counsel for the parties to determine if each individual can be “fair and impartial.” It is now apparent that the system is not designed for efficiently dealing with the group of prospective jurors. The lawyers are in charge now and they only collect the questionnaires from the first group of 10 prospects. They don’t know I’m here and they don’t care.

It turns out this is a personal injury case involving disputes about medical records, medical treatments, negligence and related issues. There are, we discover the next day, other lawyers in the group and a doctor as well. None will eventually serve on the jury, but it takes a full day and a half to determine that. The lawyers painstakingly, slowly, repetitively query the jury pool in groups of 10 to pick the final six jurors and two alternates. They are in no hurry and spend hours in the hallway reviewing questionnaires and negotiating over whom to select. The first group of 10 produced only 3 jurors. The second group, another 3, then a third group to get the two alternates.

I confess I was not a trial lawyer by experience, although I did litigate administrative and arbitration cases in my active legal career. Nevertheless, it did not take a lot of imagination to grasp that this process was designed for the benefit of the trial lawyers and gave little to no consideration to the jury pool that was stuck there for, potentially, three days just to settle on 8 people out of the pool of 35. And the trial itself, scheduled to start the following Tuesday, is estimated to take five days but “it could be longer if, for example, the judge has to hear motions in other matters.”

By way of example only, once a group is selected from the pool, the lawyers and all of the pool jurors in that group must return to the clerk’s office for processing out. It seems that every step in the process is calculated to consume more time and that no one, except some members of the jury pool, is an any hurry to move the process to conclusion.

On Day One, we arrive at 3:35 pm and it is finally time to question the second group of 10 prospects.

But, wait, we’d been told earlier that the stop time today was 4 pm. The attorneys inform us that since there is only 25 minutes left before the appointed end time, we’ll just knock off early. Report back tomorrow at 9:45. What? 9:45? What the hell kind of workday do these folks follow? Do they not understand that everyone in the jury pool has another life to pursue outside the jury selection process?

I approached the lawyers and explained who I was and that since I was pretty sure they would never select me, how about you just excuse me now? The answer was “no, we can’t control that and, besides, we might run out of prospects and want you on the jury anyway, but you can go try the clerk.” I rush downstairs and approach the clerk’s desk, only to hear her tell someone else, “once you’re in the pool, there is no way out.” So, no way out, even if the lawyers take three full days to finish selection.

I leave the courthouse and return home. I am uncertain whether I really heard that the start time tomorrow is 9:45 rather than the 8:45 the first day. So, I call the number on the yellow card we were instructed to collect that morning. A voice message, at 4:45 pm, says that the number is not part of the answering system and therefore no message can be left. “Goodbye.”

Let me cut to the end now. No point in prolonging the obvious. Suffice to say that I was never selected as a potential juror, never questioned and the lawyers finally chose the six jurors and two alternates. We then had to return to the clerk’s desk for final processing, a final speech by one of the clerks, and then … freedom. I bolt out of the courthouse to catch a cab to a business lunch that is going on without me.

A day and a half of monotonous, repetitious rehashing that could have been accomplished in less than half the time with the judicious use of some documents for prospective jurors to read, perhaps even in advance of coming to the courthouse. Turning over prospects to the control of the litigating lawyers means that the jurors’ interests may be completely disregarded if the lawyers are in no hurry to complete the process.

I well understand the need to assure that citizens do their duty as jurors in order to assure that litigants that want a trial by jury can have one. But I do not understand why the process is under the unsupervised control of the trial lawyers. I do not understand why the process seems to be the same as was used decades before modern technology became available. Much of the factual information painstakingly drawn from the pool members could have been collected in writing beforehand. If the trial lawyers were going to disqualify lawyers, doctors and other people in certain professions or who had experienced injuries similar to the one at issue in the case, all of that could have been ascertained in advance. Doing that would require systematic changes in the way the jury selection process works but it could be done if efficiency were regarded as relevant to the process.

The good news is that the ordeal will not be repeated for me for at least four years. The clerks gave us a piece of paper that we can use to resist being recalled by the state for that period. It even protects against federal court jury calls which may come because “the state and federal systems are not integrated.” No surprise there.

So, fine, I will state for the record now that if called after the four- year period ends, I will not serve again. Lock me up if you want, but at this late stage of my life, I am not going to give the courts any more of my time under a system that provides little or no respect for me as a citizen. They can do better if they try. I, for one, am done.

 

Archives Admits Mistake

The Washington Post reports that the National Archives has published an acknowledgement that it made a mistake in altering photographs of the 2017 Women’s March in a display about women’s suffrage. https://wapo.st/38nEtcg Even more remarkably, it has apologized without the usual qualifications that “official apologies” often have these days. You know the ones: “we take our obligations very seriously and are sorry if anyone was offended by what we did/said.”

Kudos to the Archives for offering no further excuses and for recognizing outright that its alteration of historical records, the essence of its reason for existence, was wrong.

There is only one matter outstanding. The Archives said it was going to take steps to prevent such an action from being repeated. Good. It is, however, important that it publish the “new procedures” that are going to assure that is true. The unnerving effects of this episode will linger until there are formal processes in place on which the public can rely.

If we were not living in a disinformation nightmare instigated and maintained by the Trump administration, there might be less concern. But the nightmare is here and we have seen many instances of the machinery of government turned perversely to serve the personal political and economic interests of the president and his family. It is therefore essential that the Archives publish the formal steps it is taking to prevent repetition of this unhappy business.

Words Fail Me

Well, not quite. Don’t get your hopes up just yet.

I refer to the overpowering anger I experienced (and still feel hours later) upon reading the Washington Post’s recounting of the decision by the National Archives to blur out portions of photographs from the 2017 Women’s March for an exhibit celebrating the centennial of women’s suffrage. https://wapo.st/2TzSTSo [Note: if you can’t access the story because you lack a subscription, you should get one. Not that expensive and we need to support the surviving independent journalism of the free press lest we lose it]

The gist of this latest outrageous deferral to the childish bigoted misogynist mind of Donald Trump is a decision by the National Archives, supported by the archivist of the United States, to digitally obscure words that, had they been left in, could constitute engagement in “current political controversy.” The word “Trump” was removed from signs held by marchers that said, “God Hates Trump” and “Trump & GOP — Hands Off Women.” Note that “GOP” was left on the latter sign in the photo exhibit. Only Trump’s name was removed.

If that weren’t bad enough, and it is, the Archives also removed references to parts of women’s anatomy from some signs [avert your eyes, children, we don’t want you to know about women’s’ anatomy; education is bad for you]: ‘vagina’ (yes, VAGINA!!! RUN FOR YOUR LIVES! THE HORROR, THE HORROR!) was blurred out on signs that said, “If my vagina could shoot bullets, it’d be less REGULATED.”

Clearly those women marchers (and supportive men like me who were there too) were intent on bringing down the nation’s morals, undermining democracy and, THE HORROR, exposing viewers of the exhibit to unwanted attention to parts of women’s’ bodies.

By now, I’m sure you’ve also figured out that the word “pussy” was obliterated from signs that read, ““This Pussy Grabs Back.” Those signs, of course, refer to the statement of that paragon of moral virtue, Donald Trump, that “when you’re a star, they [women] let you do it. You can do anything…. Grab ’em by the pussy. You can do anything.”

So, it is clear beyond a reasonable doubt that these decisions were driven by a desire to avoid showing how women felt about the president during the Women’s March. The signs were part of historical photographs of the March. And the Archives decided that they were too much for the public to see because WHY? Because Trump wouldn’t like it. This is the same Trump that, along with his wife, dismissed the statements as just “boy talk” and “locker room talk.”  Apparently, the Archives is more concerned about the statements than the person who made them.

Given other attitudes Trump has expressed and that some people claim that the Civil War was about a “northern invasion” and that slavery had nothing to do with it, we can now expect the Archives will surely want to avoid “current political controversy”  by removing the bodies of Confederate soldiers from historical exhibits of Civil War battles. And, of course, no more photos of slaves. Should the Archives do an exhibit about the Holocaust, we can expect it to remove all evidence of bodies because there are still fools, and Nazis, who claim that the Holocaust never happened. Can’t risk offending them, can we?

And those pictures of American astronauts on the moon? Forget it. Just show the moon lander and the flag but no astronauts because there are people who claim the moon landing by astronauts was faked. Can’t offend them either.

Rather than avoiding “current political controversy,” the Archives has landed squarely in the middle of it by doing what the leadership of Soviet Russia did when they caused photos of the Politburo to be cleansed of “displaced” leaders. The Archives has also copied the techniques of Nazi Germany in “fixing” historical records. Once you start down the path of this type of “cleansing,” there is no end to it.

In an utterly lame and tone-deaf attempt to defend its decision to alter the historical record, the Archives sad, “Our mission is to safeguard and provide access to the nation’s most important federal records, and our exhibits are one way in which we connect the American people to those records. Modifying the image was an attempt on our part to keep the focus on the records.”

The problem with that is, of course, that the Archives did not provide access to the “records.” It provided access to records it wanted you to see without upsetting the president. In other words, we want you to see the records but only the records we think you, and our Dear Leader, can handle without getting upset. Because we all know what happens when Trump gets upset. We must avoid upset even if it means suppressing the truth.

Understandably, the Post reported, “Archive officials did not respond to a request to provide examples of previous instances in which the Archives altered a document or photograph so as not to engage in political controversy.”

It did say, “The decision to blur references to women’s genitals was made because the museum hosts many groups of students and young people and the words could be perceived as inappropriate.”  I suppose no students or “young people” read the newspapers or watch TV or music videos either, so, of course, the Archives is just trying to align with everyone else in denying information so we can keep students and “young people” uninformed about female anatomy. How thoughtful of the Archives to manage the national morality this way.

The Post quotes Rice University historian Douglas Brinkley saying, “If they don’t want to use a specific image, then don’t use it. But to confuse the public is reprehensible. The head of the Archives has to very quickly fix this damage. A lot of history is messy, and there’s zero reason why the Archives can’t be upfront about a photo from a women’s march.”

Wendy Kline, a history professor at Purdue University, is quoted as saying, “Doctoring a commemorative photograph buys right into the notion that it’s okay to silence women’s voice and actions,” Kline said in an email. “It is literally erasing something that was accurately captured on camera. That’s an attempt to erase a powerful message.”

The article also mentions that Getty Images, the owner of the images, licensed them for use by the Archives but that it was unclear at press time whether Getty had approved the alterations. But Getty is not the Archives. Whether or not it approves of the alteration is total irrelevant in judging the decision to alter the photos for public consumption. Getty can do whatever it wants with its property on its own website but is not the arbiter of what is appropriate for the National Archives.

This, I suggest, is what happens when the government bends its knee to the Executive Branch, distorting history without even disclosing what it has done until called out for it. The Trump Administration has made itself unique in American history by the level of graft and corruption among presidential appointees, not to mention the president himself. This corruption has infected the work of the executive agencies to an unprecedented degree. In this unbelievable and outrageous example of the Archives being afraid to offend the president, and thus willing to distort historical records presented for public display, we see just how far the effects of the president’s corruption have extended.

The Archives must immediately either reverse the digital distortion of these photographs. If it’s so worried about upsetting children and “young people,” it can take other measures to warn about the content and let the parents and “young people” decide what they want to see. Making such decision is not the proper business of the government, at least not one serving a democracy rather than a dictator.