Category Archives: Law

The Fourth Reich — It’s Them or Us

Disclosure: Much of this post depends on information from the Bob Woodward- Robert Costa book, Peril. Woodward and I were friends in college and have had sporadic contact since then. I still consider him a friend, though we do not communicate regularly. Back in the day, a national magazine (not to be named) briefly suspected I might be Deep Throat. As everyone now knows, I was not Deep Throat. I never was.

This post is also inspired both by the column in the Washington Post by Margaret Sullivan [https://wapo.st/3v4LeMv] that asks the question why the “news” has largely ignored or downplayed the revelation that John Eastman, a Trump lawyer (and thus, legally, Trump himself), produced an outline for the steps to overturn the 2020 election and replace the real winner, Joe Biden, with Donald Trump.

The third inspiration is a line in Steven Pinker’s new book, Rationality:

Many facts, of course, are hurtful: the racial history of the United States, global warming, a cancer diagnosis, Donald Trump. Yet they are facts for all that, and we must know them, the better to deal with them.

So we must.

Since I began thinking deeply about this, we have also learned that Trump’s Department of Justice deliberately sat on its hands and did not brief Congress or others in the administration about what it apparently understood could be a day of violence against the government. https://bit.ly/3npJLON

We have also become aware that,

Republican leaders loyal to Trump are vying to control election administrations in key states in ways that could drastically distort the outcome of the presidential race in 2024. With the former president hinting strongly that he may stand again, his followers are busily manoeuvring themselves into critical positions of control across the US – from which they could launch a far more sophisticated attempt at an electoral coup than Trump’s effort to hang on to power in 2020.

… in recent months Trump has emerged as an unashamed champion of the insurrectionists, calling them “great people” and a “loving crowd”, and lamenting that they are now being “persecuted so unfairly”.

A poll released this week by the Public Religion Research Institute found that two-thirds of Republicans still believe the myth that Trump won. More chilling still, almost a third of Republicans agree with the contention that American patriots may have to resort to violence “in order to save our country”. [https://bit.ly/3ckbwlq]

As Donald Trump Jr has asserted, the Republican Party is now the Party of Trump. He owns it. His army of sycophants are as loyal to him as ever. Despite all the evidence to the contrary, his people believe the 2020 election was stolen, just as Trump continues to claim.

This is so despite Trump’s admitted bungling of the response to COVID that added significantly to the death toll, his incessant grifting and lying and treasonous acts of disloyalty to the United States, and, of course, his many “ordinary” crimes, such as giving secrets to Russia, extorting the president of Ukraine and a multitude of documented obstructions of justice, among many others. Evidence of cultish blindness to Trumpism is everywhere – mainstream media, Fox Propaganda, Twitter, Facebook, even LinkedIn and more.

Even with all that, the Eastman memo, unearthed in Woodward and Costa’s book, is shocking. As explained by Sullivan,

Written by Trump legal adviser John Eastman — a serious Establishment Type with Federalist Society cred and a law school deanship under his belt — it offered Mike Pence, then in his final days as vice president, a detailed plan to declare the 2020 election invalid and give the presidency to Trump.

In other words, how to run a coup to overturn the election in six easy steps.

Yet, Sullivan reports, the mainstream media largely ignored it at first. She rightly asks why this was not the multi-alarm firestorm – a presidential advisor casually informing him of the steps needed to undermine the outcome of a national election and claim the presidency that he had clearly lost.

The answer, it turns out, is as disturbing as the memo itself.

As reported by Sullivan, network executives thought the story unworthy because it was “crazy” and unsurprising. In effect, Trump has so normalized the idea of overthrowing the election that evidence of actual work to do so is not important enough to report. Another didn’t address it because “There’s no indication that Pence considered it seriously.” Others responded that there was much other news that seemed more important. What would be more important than an attempt to overthrow the government?

The normalization of the Trump-Republican attempt to subvert the Constitution and reinstall Trump as president, and de facto dictator, is being enabled by publications as venerable as the Wall Street Journal. The Journal published a letter from Trump on October 27. It did so without comment or any attempt to address the truth or falsity of his claims. The grotesque problems with the letter and the Journal’s decision to publish it are addressed in detail by Philip Bump in the Washington Post. https://wapo.st/3GTiYCg

The obvious and logical, and profoundly disturbing, conclusion is that WSJ supports Trump’s claims of election fraud and his belief that he was denied re-election by widespread vote fraud. Thus, the Wall Street Journal joins the campaign to undermine American democracy and replace it with a Republican autocracy led by Trump and his family.

At the same time, Trump is desperately fighting to prevent the release to the House committee investigating the January 6 insurrection/coup attempt of a large trove of documents that would reveal his role, and that of his key enablers, in the attack on the Capitol. https://nyti.ms/3wgXYAc His claims of executive privilege have been rejected by President Biden, but Trump maintains he can assert the privilege even though no longer in office. Trump’s claim of privilege fails on multiple grounds, not least of which is that most of the documents sought have nothing to do with this execution of the job of president – they are related to his personal political objective to remain in office despite the electoral outcome.

Thus, Trump continues to maintain his thoroughly debunked claims of election fraud while resisting efforts to uncover facts that might expose his role in trying to overthrow the federal government.

What else does the Woodward/Costa book contribute to our understanding of all this? A lot.

  • The chair of the Joint Chiefs, Mark Milley, after plenty of chances to observe Trump’s thinking and behavior as president, agreed with Speaker Pelosi’s observation that Trump was “crazy” and had been “crazy for a long time.” Peril at xxii. Colin Powell, former Chair of the Joint Chiefs described Trump as a “f*cking maniac.” Peril at 106.
  • Pelosi characterized the Oval Office under Trump as an “insane snake pit.”Peril at xxiii.
  • Referring to the white supremacists who marched in Charlottesville, and under pressure from then-Speaker Paul Ryan, Trump refused to criticize the marchers because “These people love me. These are my people. I can’t backstab the people who support me.” Peril at 8.
  • Trump was often unaware of his own actions. He did not know that the money for the border wall in the early 2018 spending bill was an amount he had approved. He finally agreed to sign the bill to prevent a government shutdown. Marc Short, Trump’s legislative advisor told Ryan this chaos was typical of “every day around here.” Peril at 9. Bill Barr, who was committed to run the Justice Department in Trump’s best interest to promote his re-election thought Trump’s big problem was his “pigheadedness and his blindness.” Peril at 71.
  • Trump failed to grasp the nature of the threat posed by COVID-19 and refused to accept information that conflicted with his view. Peril at 82.
  • Trump rejected advice of Gen. Milley and other senior advisors to rename military bases from Confederate traitors to Medal of Honor winners. Peril at 108-109.
  • Even as the U.S. pandemic continued to escalate (approaching 4.9 million cases and more than 160,000 deaths), Trump insisted that it was “disappearing. It’s going to disappear.” Peril at 113.
  • Trump tweeted that the “deep state” was interfering with the development of vaccines. When his own appointed head of the FDA tried to explain the process, Trump changed the subject. “the president had no idea how the FDA operated and had made no effort to find out.” Peril at 113-115.
  • Aware of his failing election campaign, Trump primed his followers for the possibility of defeat by repeatedly claiming that the only way he could lose was a rigged election. Peril at 131.
  • As soon as Trump’s defeat was reported, he announced from the White House that the election was a “fraud on the American public.” Peril at 133.
  • Even Michael Pompeo, one of Trump’s most loyal sycophants, told Gen. Milley that “The crazies are taking over,” referring to Giuliani, Sidney Powell, Michael Flynn and Mike Lindell, the key players on Trump’s legal defense team. Peril at 150.
  • On November 10, following Trump’s firing of the Secretary of Defense, Gina Haspel, the CIA Director, presciently predicted, “We are on the way to a right-wing coup.” Peril at 152.
  • Mark Meadows made repeated efforts to install a Trump super-loyalist into a leadership position at the FBI and, stymied by Barr, later at the CIA, stymied by Haspel. Peril at 154-156.
  • Trump acknowledged that Giuliani was “crazy” but claimed that “sane lawyers” would not represent him in attacking the election. Peril at 164. Trump’s AG Barr referred to Trump’s legal team as a “bunch of clowns.” Peril at 170. See also Peril at 180.
  • Trump’s team of incompetents had no plan to efficiently distribute COVID vaccines. Peril at 187.
  • Steve Bannon advised Trump to focus on January 6, the day the Electoral College votes would be certified by Congress, the last step to elect Joe Biden as President:

We’re going to bury Biden on January 6 …. If Republicans could cast enough of a shadow on Biden’s victory on January 6 … it would be hard for Biden to govern. Millions of Americans would consider him illegitimate. They would ignore him. They would dismiss him and wait for Trump to run again. “We are going to kill it in the crib. Kill the Biden presidency in the crib… [Peril at 207-208]

  • Trump directly threatened VP Pence if he refused to reject the Biden Electoral votes and hand the election to Trump. Peril at 229-230.

The above references are just a small taste of the astonishing revelations in Peril. Most of the rational people in the White House at the time of the election and its aftermath appeared to believe that Trump was mentally unstable, incapable of and uninterested in the complexities of governing and focused only on retaining power. There was palpable fear, even among some Republican leaders, that Trump was so unhinged and desperate that he might start a war or try to use the military to retain power. His distraction likely played a role in the continued spread of COVID and  his administration’s failure to respond appropriately.

These concerns, which continue in the wake of the January 6 insurrection that Trump inspired and encouraged, raise the gravest questions about the capacity of the American democratic republic, and the Constitution on which it is based, to survive the presidency of an incompetent psychopath like Trump.

Thus far, the only action against the insurrectionists has been to arrest just over 700 of the perpetrators out of what appeared to be several thousand involved in the assault. No charges have been leveled against anyone in Congress or the Trump administration in relation to the attempted coup. Trump continues to claim in every available forum, without any factual basis and in the face of more than 60 defeats in legal proceedings, that the election was stolen. His supporters in Congress continue to obstruct President Biden’s efforts to end the pandemic and restore the economic health of the country.

Republicans around the country continue to alter election rules, gerrymander districts and prepare to overturn the results of any election defeats they may experience in 2022 and 2024. The Doomsday Clock on American democracy is ticking down and, as far as can be told, more than a year after Joe Biden’s election, no meaningful actions to hold the real leaders of the January 6 coup attempt accountable has been made.

Watch this video, produced by Don Winslow Films, listing 19 critical questions central to the January 6 insurrection, that remain unaddressed as far as anyone can tell.  https://www.youtube.com/watch?v=z2cG1PIhLIA

We are told we must be patient, that building a solid criminal case against a former president requires time. To a lesser extent the same “principle” is offered regarding the members of Congress who actively promoted the insurrection and have worked very hard to sustain a ludicrous phantasmagorical version of what occurred on January 6.

I understand the need for careful preparation, but in a little over a month we will have reached the one-year anniversary of the attack on Congress. I ask what evidence of conspiracy, perjury, sedition and obstruction of justice, to mention just a few of Trump and team’s major crimes, is missing? Has a grand jury been impaneled?

As Don Winslow’s video compellingly asks, why have so many key witnesses not been subpoenaed by the House Select Committee and placed under oath? What kind of investigation is this? Are we going to get another version of the Mueller Report that says we can’t find enough evidence to indict but neither do we exonerate? How could such a conclusion be reached without a full investigation? Mueller failed to fully investigate, as revealed in Andrew Weissmann’s book, discussed at length in an earlier post in this blog, “Lawless White House” – the Mueller Report – “Oh! What A Tangled Web We Weave …” https://bit.ly/32GUDA1

Trump is infamous for using legal processes to stall and delay investigations and actions against his multi-various criminal activities and civil offenses. If the government takes much longer, there will be no chance for meaningful action while Republicans scheme to undermine the democratic process whose survival is central to a full accounting from Trump and his enablers. I am encouraged, not much but more than zero, by the fact that the Biden administration has not announced that it is closing any investigations but that is not sufficient.

Winter for American democracy is theatening and once it is here, there may be no chance for a renewal.

 

 

 

An Anti-Masker Walked Into a Bar ….

Actually, no, it’s not a bar and it’s not a joke. They’re boarding airplanes, knowing full well that there is a federal policy requiring that masks always be worn except when actively eating or drinking. Yet they continue to reject compliance and, in many cases, verbally and physically abuse flight crews and fellow passengers.

The situation is so bad that the Federal Aviation Administration is publishing monthly Unruly Passenger Statistics. See https://www.faa.gov/unruly

It’s time to stop calling these miscreants “unruly passengers” and call them by their true name: Criminals. Why?

As stated by the FAA:

Interfering with the duties of a crewmember violates federal law

“Unruly passengers” can be fined by the FAA and criminally prosecuted by the FBI.

“Can be,” yes, but are they? Some are, for sure. You can read about some of the fines imposed in Travel Pulse: FAA Fines 10 Unruly Passengers $225K for Alleged Assault, https://bit.ly/3qGcoJm That’s some serious coin. The Washington Post reports that the FAA has referred 37 cases to the FBI for prosecution. https://wapo.st/3BQT5iq

The problem, as I see it, remains that only a small share of the cases is being pursued, despite a “zero tolerance” policy adopted by the FAA at the beginning of 2021:

The FAA reported 5,033 incidents of unruly passengers as of November during this year, 3,642 of which were related to mask-wearing. From the total number of incidents, the FAA initiated 950 investigations, a sixfold increase from last year.

The agency initiated enforcement action in 227 cases, some of which will lead to a civil penalty. Of the 227, 37 of the most egregious cases of disruptive or violent passenger behavior were referred to the FBI for possible criminal prosecution.

The progression from 5,033 incidents to 950 investigations to 227 enforcements to 37 possible criminal prosecutions suggests to the irresponsible anti-masker (who thinks it’s perfectly fine to violate federal law, assault flight attendants and possibly endanger the safety of an entire aircraft in flight) that his chances of getting away with “unruly behavior” are pretty good.

The words we use are important. Calling someone’s misconduct “unruly” diminishes its significance. It superficially equates attacks on flight attendants with talking too loudly, playing music without earbuds and generally being a slob. But those latter misbehaviors – obvious acts of unruliness — are in a completely different category from refusing to comply with masking rules and, even more obviously, physically attacking a flight crew member.

Aircraft in flight are no place for scuffles and fist fights. Nevertheless, in many cases other passengers have engaged miscreant anti-maskers in efforts to protect flight attendants and to restore order. It’s good that there are people prepared to engage in this way, but it should never escalate to that stage.

I well understand that airlines are reluctant to sound too “authoritarian” in presenting passengers with the “rule of the airways” after boarding, but the fact remains that the dangers of violent passengers on an aircraft present a uniquely problematic situation – for the passengers and crew as well as people on the ground.

The AFA-CWA International that represents flight attendants has argued that,

Expeditiously referring the most violent, physical assaults against crewmembers and passengers to the Department of Justice for public prosecution is the most effective way to deter bad actors and put a stop to the spike in disruptive passengers. https://bit.ly/3Cj0eZh

Absolutely right, but I would go even further and argue for criminal referral of every act of assault against crew members, as well as every act of refusal to follow flight crew instructions to “mask up.” If in the off chance that a crew member oversteps, the passenger can take it up with the airline after the flight, not by verbally or physically attacking the crew. Based on experience to date, it seems clear that the only way to deter this dangerous criminal behavior is to create the certainty that criminal prosecution will ensue.

So, FAA, start using the right words to describe the conduct and refer all the cases to the FBI. And while you’re at it, adopt the flight attendants’ union’s call for,

the creation of a centralized list of violators who will be denied the freedom of flight on all airlines. If a passenger physically assaults crewmembers or other passengers on one airline, they pose a risk to passengers and crew at every airline. They should be banned from flying on all airlines. Period.

The time has passed for putting that issue “on the table,” as suggested by Transportation Secretary Pete Buttigieg. It’s time to act.

Dear Mayor Bowser

I am inspired to publish this now because I received your News message of October 15 entitled Accelerating Roadway Safety Projects. You stated a planned “acceleration of roadway safety improvements across DC,” driven by a wave of “traffic violence.” One of the primary solutions was the reduction of the default speed limit to 20 mph, although you recognized that speed is not the only problem – it’s also “distracted driving or a refusal to share the road.” Indeed.

One of the major “solutions” proposed is your request to DDOT “to move forward with a campaign to accelerate the construction of roadway safety improvement projects that will better protect pedestrians. This includes the installation of speed humps, stop signs, and right turn hardening measures. Starting this week, and continuing annually, DDOT will target 100 intersections that are within the District’s high-crash, high-injury corridors.”

Before going further, I suggest that solving the “traffic violence” problem is not achievable by placing obstacles in the path of already frustrated drivers. Speed humps may slow a car temporarily but if they lead to rapid acceleration after driving over one, the purpose seems defeated. Similarly, stop signs work if drivers stop and look before proceeding. If not, they can create more of a hazard as people in a hurry run through them. This happens every day all over the city.

While it may appear otherwise initially, rest assured that I am on your side. You have a difficult job for reasons too well known to reiterate here. Take what I offer as a good faith effort to help. As background, I moved to the District in December 2020, following three years in New York City. Before that, I lived in Northern Virginia (Falls Church, Reston, Alexandria) beginning in 1967, so I am no stranger to this area.

It is useful to begin with consideration of some general principles. The government is essentially a joint effort, funded with community money, to establish some rules within which a civilized society can function safely and fairly. This includes rules designed to establish order in what would otherwise be a chaotic, every-person-for-himself madhouse with high risks for everyone. Without such rules, the situation would resemble the Tragedy of the Commons in which each person would act in a manner designed to benefit him alone even though the result is destruction of the common good and losses for everyone. Today, DC roads resemble the Tragedy of the Commons because gross and serious violations of the laws, rules-of-the-road and common sense are rampant.

To be clear, I am not referring to “law and order” in the Republican/Tea Party/right-wing sense of the term, nor do I want to live in a “police state.”  The goal is a regime that, with reasonable compliance, benefits everyone – drivers, bicyclists, pedestrians. Everyone enjoys the benefits of more order, smoother traffic flow, less stress and more safety. There is an irreducible minimum of order that must be maintained to prevent chaos and avoidable harms.  DC appears to be well beyond that threshold.

For context, most days I drive two roundtrips from the West End (Washington Circle area) to the east end of town (10th & K), using L Street and returning west on I Street. When the traffic is unusually slow on I Street, I often move up to K Street for the return leg. Total roundtrip distance is exactly 4.1 miles. What occurs around me almost every day borders on unbelievable but it’s all true. A very select example includes:

Just this morning, we were confronted by a car traveling the wrong way on a one-way street (11th Street NW). The driver just kept coming, veering away at the last minute and turning the corner behind us. He was either completely oblivious or determined to place himself and us at risk to avoid turning around and driving in the proper direction.

Later, as I sat waiting for the light to change at Pennsylvania and 25th Street NW, two people, at least in their 30s, walked across Pennsylvania in reliance on the “walk” sign that was clearly lit. A car headed east on Pennsylvania ran the red lights facing west, passing between the pedestrians. Apparently, neither of them was aware of the danger – each had his nose buried in a cell phone and never looked up as the car raced between them.

A white Range Rover on K Street going west abruptly moved into the right lane in front of me with no signal, then a few blocks later, drove through a red light, turned left in front of the cars in the left lane and continued down the cross street, thereby also illegally crossing the service road on the other side.

A red truck in Washington Circle stopped at a red light, then drove thru it.

A driver ran three red lights in rapid succession in Dupont Circle.

It is routine to encounter drivers on M Street in Georgetown going 40 mph and more with impunity.

Illegal parking during rush hours is rampant. By taking up what would be traffic lanes, these parkers restrict the driving space for cars, leading to congestion, anxiety and angry, reckless driving behavior. Many sections of L Street are down to one lane in many places due to rush hour parking on sections already narrowed by construction sites. Many days a week the van in the photo below is illegally parked during evening rush in front of 1100 L Street NW:

Speaking of narrowed streets, the decision to block the left lane of the L Street/20th Street corner with pylons while allowing parking along the right side has reduced L Street at that intersection to one lane.

The result is that many drivers are surprised to find the left lane blocked and struggle at the last moment to enter the traffic flow in the one remaining lane of traffic. Conflict!

Worse yet, the complexity of the pylon arrangement misleads many drivers who then make a left turn from the remaining traffic lane, crossing the bike lane and the actual left turn lane, defeating the purpose of the pylon arrangement to provide additional protection to bicyclists.

The apparent absence of law enforcement in the city has led to other dangerous practices:

Pedestrians routinely slow-walking through intersections with nose buried in can’t-wait-to-be- read cell phone messages

Scooters/motorcyclists/bicyclists lane-splitting among cars in traffic lanes, zigzagging among the cars to get ahead

Scooters suddenly flying off the sidewalk at intersections to enter traffic

Red-light violations everywhere – by cars, trucks and bicyclists – often without even showing down

Left turns on K Street across multiple traffic lanes to enter the service road going the opposite way, in effect a risky U-turn, causing much sudden lane shifting

Turning from the wrong lane, usually with no signal – failure to use turn signals is rampant everywhere

The city’s installation of bus-only lanes, sometimes changing every block or two, has created additional parking space for trucks and cars alike. Buses for which the lanes were intended are forced to veer into car traffic lanes to get back. There is no apparent enforcement.

The most egregious and often-repeated violations of good driving practices are (1) failing to use the turn signal to indicate lane-changes/turns on the streets and in the roundabouts, and (2) turning from the center lane in either direction across the actual turning lane. These happen every day on my short roundtrip.

Then there is the matter of noise. As noted, I have lived in New York City and am no stranger to the realities of compacted urban living. There is, however, a difference between the unavoidable sounds of a city, cars and buses, aircraft overhead, etc. and the entirely preventable racket made by people who get some bizarre satisfaction from drawing attention to themselves by making unnecessary noise. These include motorcycles with punched-out mufflers, or no real mufflers at all, and cars with mufflers designed to make huge bursts of sound during acceleration and braking. These cars often display spoilers on the trunk and are in the style of “muscle cars.” The drivers who race the engines in traffic, do high-rpm “jack rabbit” starts and engine-assisted stops are trying to draw attention and they do, along with a large dose of irritation at the unnecessary noise they produce. Their behavior screams “look at me, look at me!” It is irritating and distracting.

The city has, apparently, determined to address these issues by trying to force traffic to slow down, as noted in the Mayor’s news message above. Reducing speed limits may seem an easy and appropriate defense, but speed limits that are too low likely cause more problems than they solve. Take a drive on the 40 mph GW Parkway, for example. Anyone trying to comply with that speed limit on the four-lane divided road will find other drivers speeding around them, frequently showing anger, impatience and dangerous driving. Average actual speeds in those areas are vastly higher whenever traffic volume permits and often even when it doesn’t.

It seems most drivers most of the time assess the risk of getting a ticket or being involved in or causing an accident as vastly lower than the costs of being a few minutes later at their destination. There is little question that this happens on DC streets every day all day everywhere. My casual but repeated observation of DC driving behavior suggests a widespread belief among drivers that there simply are no meaningful constraints on their behavior – no laws, no rules, no risk of being caught while endangering others.

Studies in the Netherlands support the idea that higher speeds, both generally and in relation to other cars, produce more crashes with greater damage to drivers and others affected. https://www.littlerock.gov/media/2484/the-relation-between-speed-and-crashes.pdf [the Institute for Road Safety Research] But US studies suggest that may not be the whole story and that “posted limits are not the cause of auto accidents – reckless driving is.” https://www.hg.org/legal-articles/the-effects-that-speed-limits-have-on-auto-accidents-30226

The last cited article states that

A method known as the “85th percentile” is used by traffic engineers to establish speed limits. This tactic operates under the assumption that most drivers will travel at a speed that is reasonable, sensible and comfortable to them on any given roadway, regardless of the posted limit. Speed limits are set at a number that separates the bottom 85% from the top 15%. For example, if the speeds of 100 vehicles are measured and 85 vehicles are traveling at 37 mph or less, the speed limit for the road could be set at 35 mph. [emphasis added]

A California study,

showed that higher speed limits set in 1995 and 1996 did not increase the rate of fatal or injury traffic crashes. In fact, actual travel speeds on roads with increased speed limits barely changed. People were already traveling faster than previous speed limits, and once speed limits were altered they generally did not speed faster than their comfort zone…. Although findings across the country are conflicting, they have shown that drivers are by-and-large practical and cautious. In essence, posted limits are not the cause of auto accidents – reckless driving is. [emphasis added]

At the risk of exposing my confirmation bias, those US observations are consistent with my day-to-day experience in DC. Lowering speed limits to levels that most drivers will find unreasonably constraining and putting speed bumps and stop signs in more places, will not change that. Such policies simply make more people into scofflaws, but they won’t likely change outcomes much if at all.

What then to do?

First, identify some of the main drivers of the problem and put resources against them. These would certainly include illegal parking in rush hour and in places where such parking materially increases congestion and conflict. The return on investment to DC from a well-managed team of “meter monitors would likely be very high.

Second, hire, train and deploy small teams to monitor driver behavior on problematic streets and intersections. Take videos of excessively dangerous practices and have another team member stop the car and issue tickets. This is not much more complicated than fielding teams of police to use radar and then flag down speeders. Observation of vehicles in the “circles” alone would likely more than pay for the costs of the teams.

Third, use the email addresses of DC-licensed drivers to remind them of certain rules-of-the-road. Explain in stark terms that certain behaviors will no longer be tolerated and that if stopped after being notified, the consequences will be serious.

I do not suggest these steps will solve all the problems. Even a 25 percent reduction in aberrant driving would be a worthy achievement and city revenues would increase significantly.

As for noise, the solutions are similar. There is no reason that the city should put up with people who deliberately make noise just to attract attention. Horn honking by automobiles (and frequently by impatient bus drivers) should be outlawed unless essential in an emergency. You get what you tolerate. DC has a Noise Ordinance.

Section 20-2700 of the DC Municipal Regulations states,

It is the declared public policy of the District that every person is entitled to ambient noise levels that are not detrimental to life to life, health, and enjoyment of his or her property. It is hereby declared that excessive or unnecessary noises within the District are a menace to the welfare and prosperity of the residents and businesses of the District. It is the declared public policy of the District to reduce the ambient noise level in the District to promote public health, safety, welfare, and the peace and quiet of the inhabitants of the District, and to facilitate the enjoyment of the natural attraction of the District.

This regulation reflects a serious quality-of-life problem in the city. Enforce it.

The cars in question usually are Mustangs or sports cars/muscle cars that look like them, often fitted with a rear spoiler. The noise they emit is usually coincident with moving at high speed through crowded streets in places like Georgetown’s M Street and less-crowded (at least now) thoroughfares like Pennsylvania Avenue. Even casual observation by enforcement would readily identify locations where deliberate noise violations, and often related dangerous driving, occur daily. This past Sunday I observed a motorcyclist riding twice through the same Georgetown neighborhood gunning his unmuffled engine for no purpose other than making noise.

In addition to the obvious benefits to safety and good order, active enforcement of traffic safety and noise control would also benefit the city’s finances. The cost of a reasonably trained force of meter monitors, traffic monitoring teams (all of whom do not have to be police officers) focused on serious violations and repeated noise ordinance violations would contribute significant revenue to fund the city’s other obligations. Everyone wins.

 

 

 

The Right to Vote

One necessary condition for the existence of a democratic republic is the ability of the people to control their government representatives. The control may be indirect and often untimely, but without the ultimate power in the hands of the governed, there is no democracy and no republic.

The essential manifestation of the power of the governed to control the governors is the vote. Without a watchful voting population, the baser instincts of politicians will eventually prevail, and the system will devolve toward uncontrollable authoritarian rule that benefits the governors at the expense of the governed.

To be effective, the right to vote must be available to everyone affected by the decisions of the governors. They must be able to exercise the vote with sufficient ease and frequency that the governors will remain cognizant of, and influenced by, the belief that if they fail to adequately and properly represent their electing constituents, they may be replaced. Since under normal conditions (e.g., no gerrymandered districts) the electing populace will be a mixture of viewpoints and interests, elected officials will often necessarily seek compromise and consensus to retain the consistent favor of at least a working majority of the electorate. When the interests of large electoral sectors are ignored consistently by political leaders, the normal conclusion is that gerrymandering is at work and politicians believe they only answer to a subset of the electorate. That in turn means that the interests and views of many voters are being ignored, that laws and policies will lag behind (often very far behind) the current views of the majority.

This is a complex and fraught business especially given the propensity of politicians to want to insulate themselves from the employment vulnerability that democracy necessarily imposes. Thus, professed fealty to the electorate and the “common good” often conflicts with the self-interest of employment security and the other fruits of power and influence. Hence the truth of the aphorism, eternal vigilance is the price of liberty.

We were recently reminded of this, and more by the invitation of a good friend to attend a presentation of the Women’s Advisory Board of the Girl Scouts Nation’s Capital at the Turning Point Suffragist Memorial in Occoquan Regional Park. We learned some interesting history not covered in many American history curricula. Inconvenient truths, it seems, are everywhere.

In a nutshell, the right to vote for women was not included in the original Constitution. Men resisted the idea for a very long time, despite persistent efforts by women to secure equal standing at the ballot box. While there are varying explanations of what led to the eventual drastic measures, the common point in the narratives is that women suffragists took to picketing the White House during the Woodrow Wilson administration. Wilson’s support for female suffrage had been unenthusiastic at best.

Eventually, the picketers, were arrested and jailed. They chose jail rather than pay fines they felt were unjust. In jail, fed rotten food with maggots, many of the women refused to eat and were force-fed with funnels and tubes. A diorama of this torture can be seen at the Lucy Burns Museum housed in the old Lorton Reformatory just up the road from the Suffragist Memorial. Lorton has now mostly been converted into an arts center, but the Burns Museum is must-see.

The Memorial is supported by the Girl Scouts National Capital. Lidia Soto-Harmon, the CEO of GSNC advised me that,

We are thrilled that in the design they created a bridge that will allow generations of Girl Scouts to “Bridge” to the next level in Girl Scouting.  We had two long time Girl Scout champions, that made a donation to the memorial on behalf of our council, and we are grateful to be listed along with the many contributors.

That bridge is pictured below with the attendees at the event.

Patricia Wirth, Executive Director of the Turning Point Suffragists Memorial Association, presented an extemporaneous and compelling history lesson for the enthusiastic group that attended. Pat is pictured here on the left, with Nancy Lyons Sargeant, who following long involvement in the TPSMA, has served as the Chairman of the Board since 2015.

A trip to Occoquan Regional Park is worthwhile for other reasons. There are paved and unpaved paths of varying degrees of difficulty, a very nice café with outdoor seating, great views of the Occoquan River

and plenty of space to picnic and play. But you don’t want to overlook the Suffragist Memorial. It’s an excellent learning opportunity for some history often overlooked, and especially for young people who need to understand all aspects of America’s history so, hopefully, they can improve on it in the future.

 

 

 

 

The Doomsday Scenario – Strangelove as President

You’ve seen one of the movies, most likely. One masterpiece that comes to mind is Dr. Strangelove, subtitled, “How I Learned to Stop Worrying and Love the Bomb.” If you are one of the five living people who hasn’t seen it, Wikipedia summarizes the story like this:

The story concerns an unhinged United States Air Force general who orders a first strike nuclear attack on the Soviet Union. It separately follows the President of the United States, his advisors, the Joint Chiefs of Staff and a Royal Air Force (RAF) exchange officer as they attempt to prevent the crew of a B-52 plane (who were following orders from the general) from bombing the Soviets and starting a nuclear war. [https://bit.ly/39fqU0M]

There are other such stories, including the similar Seven Days in May, about a “military-political cabal’s planned takeover of the United States government in reaction to the president’s negotiation of a disarmament treaty with the Soviet Union.” [https://bit.ly/2Xip8cF]

At the root of each drama is the conflict between the civilian and Constitutional leader of the military (the President) and the military leadership. Usually, it’s the military people that go off the reservation. In the real world, we had the opposite, terrifying scenario of the President of the United States becoming unhinged from reality and unrestrained by Constitutional or any other restraints (including his Cabinet). Trump was behaving so irrationally that the senior military authority, General Mark Milley, Chair of the Joint Chiefs of Staff, undertook steps to be sure that Trump’s lunacy did not destroy the world.

Republicans, and even a few Democrats, are losing their minds over this. Ignore the Republicans, who, as with COVID-19, Ukraine and many other situations, can be counted upon to suspend all rational thinking in favor of obeisance to Donald Trump. Especially people like the morally compromised Senator Marco Rubio. Their reaction is predictable and meaningless.

Our attention is captured, however, as it should be, when someone like Ret. Lt. Col. Alexander Vindman, driven out of the service by Donald Trump, complains that Gen. Milley should be removed because he “usurped civilian authority, broke Chain of Command, and violated the sacrosanct principle of civilian control over the military.” https://wapo.st/3zbu9Ry

Despite my great respect for Lt. Col. Vindman for his courageous stand against Trump’s lies about the Ukraine extortion, I disagree with his judgment on Gen. Milley.

In time of crisis, there are two essential options: (1) look to an authority source for direction and mechanically do what it says, or (2) use judgment to assess whether the authority source works in the situation at hand and, if not, choose another course of action. People face these choices every day in one way or another, thankfully almost always in situations trivial by comparison to the problem Gen. Milley faced. They make such choices on the spur of the moment, often without much thought. Sometimes they are right and sometimes not.

For example, in a different realm, the standard instruction is: don’t run from a bear; running will trigger its predatory instincts to attack. Also, don’t get between a mother bear and her cubs.

Fine, but what if you’ve wandered between the mother and cubs before you are even aware of their presence. The rules then are more complicated: if it’s a brown bear and it charges you, fall into a fetal position, trying your best to protect head, neck and stomach. If it’s a black bear, fight back. Throw things, get “big,” shout. Brown bears are more aggressive typically but may lose interest when you cease to be a threat. Black bears are ferocious but may yield and run from a fight.

If it’s a polar bear, well, hope your estate plan is in order.

The point is that these “rule book” principles are fine until they don’t work. If a grizzly attacks, you go fetal and he starts eating you, it may be that the stick lying beside you is your only remaining hope of survival. So, you grab the stick and poke him in the eye or other sensitive place, make a lot of noise and fight like hell for your life. You’re going to die otherwise, so you do what you have to do. Your options are few so you do what you can to change the odds.

Imperfect as analogies may be, the ultimate question is crisis is: will following the authority solve the problem or do I have to improvise and do the unthinkable?

Gen. Milley was faced with precisely this situation. [Disclosure: I haven’t yet read the Woodward/Costa book that revealed this story and even then might not have all the information.]

Gen. Milley had the real-life Dr. Strangelove in the role of President of the United States. His choice was to follow the rule book, let events take their course. He realized he could possibly be witness to, and complicit in, the destruction of the world as we know it if Donald Trump, desperate to cling to power, were to issue orders for a nuclear strike against China. Evidence was abundant that Trump was having serious mental disfunction. This was nothing new, but the loss of the 2020 election unhinged him from reality to a degree not previously seen. He claimed without evidence that the election had been stolen; he refused to cooperate in the peaceful transition of power; on January 6 he had urged his followers to use force to stop the final step in certifying the election result; he openly sought to reverse election counts in multiple states by pressuring state officials.

Donald Trump spit in the face of the constitutional order, giving every indication that he might be prepared to do something even more unprecedented in human history to retain power.

In those circumstances, perhaps one person alone stood as the final bulwark against insanity on the loose. That was General Milley. He chose to act rather than be another passive instrument of Trump’s delusion. I think I understand the tendency of people like Lt. Col. Vindman to turn to the “book” in cases like this, but history should vindicate the judgment of Gen. Milley that the evidence of irrational behavior was too strong, and the weakness of the inner Trump circle was too compromised, to simply hope for the best. The nation, indeed the world, should be grateful.

Note: Jennifer Rubin’s Washington Post opinion piece on this issue raises questions regarding the lessons to be taken from this episode and how we shore up the constitutional order against a future Trump. https://wapo.st/3hEyKpm Those are very important questions that require the most serious consideration.

 

Religious Exemption – What Religious Exemption?

I keep hearing about people claiming they have a religious objection to (1) wearing a mask and/or (2) getting a COVID vaccination. I have asked the Twitterverse to identify the religion that contains such prohibitions in its doctrine, so far without response.

To be clear, I am not writing this to belittle anyone’s religious faith. I write to raise the highly relevant question in the pandemic of what exactly qualifies as a valid “religious exemption” to masking and/or vaccination.

My thesis is that (1) the sudden discovery during the pandemic of one’s “religious doctrine” is just too convenient and is not a valid claim; (2) to make a valid religious exemption claim, at least two things must be demonstrated: (a) an established discoverable documented statement of clear doctrine opposing the use of masks/vaccinations to prevent/limit disease on the basis of an identified moral/ethical code, and (2) evidence that the claimant has in actual fact practiced the doctrines of the asserted religious for an extended period prior to the pandemic.

Point (1) should not be that hard. Established religions that have such doctrines can be expected to have produced writings/speeches/published practice directives that make these assertions and tie them to some “higher power” ethical controlling principles. I am not aware that such religions exist. Christian Science may be one, though I am not clear that it actually rejects vaccination conceptually. But I am not an expert on religions and there may be others. Waiting.

Point (2) may be much harder for many people. I do not accept that a person may make a valid religious exemption claim if they suddenly discover that their “religion” has some doctrine that may be used as an exemption support, and they then decide to assert it when the reality is that they never followed the doctrine before.

I am astonished and perplexed to learn that the Equal Opportunity Employment Commission has adopted as policy in its Compliance Manual on Religious Discrimination the “principle” that in practice means a religious exemption is in most cases whatever the person says it is, regardless of past practice of adherence or any other considerations. I am not going to elaborate on my judgment of that – if you’re interested, you can find the details here: https://bit.ly/3yUWlIh I do believe it is conceptually and otherwise preposterous.

But that such muddled thinking is part of government policy, at least in one domain, it is small wonder that people are using religious exemption claims to cover their political or merely ignorant resistance to public health measures that have been shown to limit COVID infection spread. The resisters – the anti-makers and anti-vaxxers – are not only dying at much higher rates than the vaccinated, but they are facilitating the “evolution” of the virus into more virulent strains, such as the Delta Variant that is ravaging the country now. Breakthrough infections, with sometimes deadly outcomes, are increasing also. This is virtually certain to result from vast numbers of unvaccinated people walking among us.

My limited understanding of religion is that any legitimate one has an ethical/moral foundation of principles to live by. Whether it’s one deity or many, a set of principles to live by is the central idea. If so, I can’t help wondering what foundation of ethical/moral principles the people who suddenly found religion think they are asserting. Their new “religion” has the effect of exposing themselves and, worse, others to a deadly disease. What principle of ethics/morality justifies that? How do they square their supposed adherence to a set of ethical/moral principles while basically lying about their “sincerely held religious beliefs?”

The Road Not Taken

Kudos to President Biden for taking the hard but right path to restoring the physical and economic health of the country. Shame on those who continue to harp on the ignorant and irrationally resistant themes of “my rights” at the expense of the health and welfare of others. ENOUGH!

We’re at the fork in the road. Nothing short of a full-on frontal attack on the virus is going to get us out of this mess. The great American poet Robert Frost captured the idea in his famous poem, The Road Not Taken:

Two roads diverged in a yellow wood,
And sorry I could not travel both
And be one traveler, long I stood
And looked down one as far as I could
To where it bent in the undergrowth;

Then took the other, as just as fair,
And having perhaps the better claim,
Because it was grassy and wanted wear;
Though as for that the passing there
Had worn them really about the same,

And both that morning equally lay
In leaves no step had trodden black.
Oh, I kept the first for another day!
Yet knowing how way leads on to way,
I doubted if I should ever come back.

I shall be telling this with a sigh
Somewhere ages and ages hence:
Two roads diverged in a wood, and I –
I took the one less traveled by,
And that has made all the difference.

Biden has taken the road that many politicians would eschew – the one that will, and has, inevitably create another furor. Rather than the “safe path,” Biden has shown the courage of a leader by doing the right thing rather than the safe or easy route. You can hide from destiny only so long, as this great story reminds us:

A merchant in Baghdad sent his servant to the market.
The servant returned, trembling and frightened. The
servant told the merchant, “I was jostled in the market,
turned around, and saw Death.

“Death made a threatening gesture, and I fled in terror.
May I please borrow your horse? I can leave Baghdad
and ride to Samarra, where Death will not find me.”

The master lent his horse to the servant, who rode away,
to Samarra.

Later the merchant went to the market, and saw Death in
the crowd. “Why did you threaten my servant?” He asked.

Death replied, “I did not threaten your servant. It was
merely that I was surprised to see him here in Baghdad,
for I have an appointment with him tonight in Samarra. 

The choice we face now, that we must face, is between aggressively striking at the virus with all the tools at our disposal or continuing to beg the irrational and uninformed to do the right thing. The former has a chance to stop the pandemic, to take advantage of the astonishing opportunity that the rapid deployment of vaccines has provided. The latter approach has virtually certain terrible consequences: more illness, more death, more permanently damaged bodies.

The reality is that the vaccines are safe and effective. The reality is that the rapid spread of the Delta variant has again overwhelmed the nation’s medical capabilities. COVID infections that are mainly in unvaccinated individuals are denying needed medical services for people with other medical conditions.

I have read some of the insane rantings of primarily right-wing and libertarian “authorities” who claim to have inside knowledge that the virus was released deliberately by agents of the federal government who are cashing in on the vaccines. These people claim that the vaccines contain various poisons, microchips and who knows what else.

It seems that one can always find someone who claims to have the inside track on awful secrets and conspiracies that are constantly being plotted against the rest of humanity. These sometimes include people with “medical credentials,” but often they are former workers in the pharmaceutical industry who are certain that they have inside information to expose the crimes being perpetrated in the name of … whatever. They readily accept the plausibility of conspiracies involving many thousands of people around the globe, no one willing to spill the beans, all in the name of “follow the money” or some other cliché that substitutes for actual thought.

We see this same theme played out in science fiction movies and what I call “caper movies” in which bad guys pull off, at least temporarily, extraordinary schemes to steal, blow up, capture huge sums of money, power over the world, etc. Movies like Air Force One, Die Hard and so many others. I have struggled through a few episodes of a TV series called Eureka that is loaded with utterly implausible, preposterous concepts and science-like doublespeak and gibberish. Some people apparently take such stories to be true. It’s an easy shift from one phantasmagorical storyline to another. Harry Potter is real, flying broomsticks and all.

Reality is more mundane. Two kinds of sickness pervade the country. One is the COVID-19 virus. We’ve learned a lot about it and about how to prevent its worst manifestations. Vaccines, masks, social distancing – that’s pretty much the essence. Study after study confirms the validity of these measures, if, at least, they are applied broadly and consistently.

But it’s damned inconvenient and mighty annoying. COVID has shuttered many businesses, interfered with our fun and instilled a deep-seated fear in many people that they and their loved ones, including children for whom they are responsible, are being exposed to an invisible, highly transmissible and deadly disease. More than 648,000 dead from a disease that our former president assured us would “soon disappear like magic.” Damned annoying.

The other sickness is the resistance to the solution. We know what to do but for many Americans, the disease isn’t the real enemy. The real enemy is the government. Many people appear to believe the government unleashed the virus. Why would the government do that? Did the government want to destroy the economy? Weaken our national defenses? Reduce the population? End civilization? Apparently, many believe so.

Logic and reason have little to do with this mindset. It’s analogous to those who argue that the January 6 insurrection was actually the work of the winners of the election who wanted to stop the certification of their win so that the loser, whom they hate, would be installed as the winner. That make sense to you? If so, take two giant steps to the right.

Along comes the new president who starts an unprecedented and initially successful campaign to deliver life-saving and pandemic-ending medicine into tens of millions of citizens without any meaningful adverse consequences and at no cost. And yes, yes, I understand we can’t prove that ten years from now there won’t be some inexplicable adverse outcome for somebody. There is no scientific or medical reason to suspect that could or would happen, but we can’t predict the future with 100% certainty, so ….

But, you know, in the long run we’re all dead anyway. In the meantime, we can return to “normal life.” All we have to do is get vaccinated and comply with a few annoying but otherwise trivial practices a while longer with a few minimal restrictions on our behavior.

But, no, this is apparently asking too much for millions of Americans. They have their “rights” to protect, regardless of the consequences. “Freedom” is their watchword. Don’t tell me what to do even if it’s for my own good. Sounds like a teenager who thinks he knows everything already and is invulnerable. Or the guy with the boat who insists on going out in the hurricane because he can “handle anything.”

Many of these people end up in the ICU, begging for the vaccine, only to be told by doctors, “it’s too late for you. You should have taken the vaccine earlier. It can’t help you now. Nothing can help you now.”

The solution is in our hands, if only our minds will allow us to see it. I despair of it, after engaging yet another person who on first encounter seemed reasonable and thoughtful, but then insisted “we are being lied to” and that the vaccines contain deadly poisons that make them magnetic. She argued with me that the vaccination program was unnecessary because “natural immunity” was superior protection to the vaccines and lasted longer. How she knows this: read on the internet.

I end where I began. History will record that Joe Biden acted justly and rightly in ordering mandatory vaccination programs, with, in most cases, very generous opt-outs for people with true medical conflicts and genuine religious objections (I don’t know what religion that is, but the exemptions are available).

I find some inspiration in these closing words from Ulysses by Alfred, Lord Tennyson:

Though much is taken, much abides; and though
We are not now that strength which in old days
Moved earth and heaven; that which we are, we are;
One equal temper of heroic hearts,
Made weak by time and fate, but strong in will
To strive, to seek, to find, and not to yield.

 

September 18 — What Do I Expect from the Police?

As a resident of the District of Columbia, and a long-time resident of the DC area, I am fully aware that I live, by choice, in the heart of protest country. I also disapprove of violent protests regardless of which side is responsible. Peaceful protest, fine; choose your issue. I may think you’re a fool to believe, for example, that the 2020 election was stolen, but if you want to go out in public and proclaim you believe it was, go for it.

BUT don’t dare come here with the idea that you can violently display your anger or whatever it is and get away with it. That’s what happened on January 6. It appears that members of that violent mob of cowards and traitors who haven’t yet been arrested for their crimes are returning on September 18 to protest the arrest, detention and punishment of those who were arrested for attacking the Capitol. There is much conflicting information about who is doing what, which groups will show up and in what numbers. https://cnn.it/3A9oqgl No doubt there will be counter protests. What’s good for the goose….

This is the “law and order” mob. They’re for “law and order” provided it doesn’t apply to them. The mob includes many white supremacist groups and individuals. It doesn’t take much to start trouble in this kind of situation.

It’s a rule of life that you get what you tolerate. Most people seem to be competitive by nature. If there are no boundaries established, likely as not many, perhaps most, will simply do what they want to satisfy their personal desires.

Thus, if we tolerate air passenger violence, we tend to get more of it. That’s happened in 2021, mostly over mask requirements. Thousands of people threw violent tantrums when required to follow federal law and crew member instructions to keep masks on except when actively eating or drinking. Screaming, fights with other passengers and crew, people being forcibly duct-taped to their seats! In airports and even during flight. It took a while, but the government is now imposing serious fines on people who act out this way. Yet, it continues. Probably because people don’t regard the threat of fines as meaningful. Jail time, on the other hand, might get their attention. You get what you tolerate.

We tolerate anti-maskers, anti-vaxxers, people with bogus claims of “sincere religious objections,” and more. We tolerate health disinformation. And so, we get more of it. Just turn on any Fox News show. Or join Twitter.

Purely as a thought experiment, what do you suppose might happen if some rules were changed? For example, if the rule were that any refusal to comply with a crew member demand to mask up on a flight would be met with instant and automatic banishment from air travel on any airline for, say, five years. No discussion, no arguments, no fights. Fight and you go to jail, plus lifetime banishment, 100 percent of the time. Next time you want to travel, you go by car. And the next time and ….

I can imagine some of the objections. What about the evidence? Suppose the flight attendant talked mean to me and hurt my feelings so I pushed back? What about my rights? My rights! OMG! I don’t like being told what to do. This is America. And so on.

The evidence objection is easy enough to resolve with some good technology that would record all interactions. Inform passengers at the outset, like the seatbelt instruction: “Buckle your seatbelt and mask up. No mask, we suggest you deplane now. If not, you will, we repeat, you will be arrested, jailed and banned. 100%.”

But it’s not just air travel. I am concerned about September 18.

My view is simple. I expect more, much more, from the law enforcement establishment than was seen on January 6. Some rules need to change to assure that this is the outcome. Trump and his criminal cabal are gone so this should be relatively straightforward.

It is the job of DC law enforcement at every level to be sure that the government is protected so it can continue to function. No one has the right to interfere with the operation of the government. I expect the police, and such other reinforcements as they need, to put down with all necessary and immediate force any attempt to stop the courts from functioning as they are supposed to. The mob can blather all it wants to about the “injustice” of holding accountable the people who assaulted and killed police, threatened Congress and desecrated the Capitol. But they must be peaceful or face immediate and harsh consequences. Prepare for the worst and demand the best.

A democracy must tolerate much dissent. It is the nature of, and great strength of, a democratic republic that dissent is permitted, indeed encouraged. But when dissent boils over into violence aimed at stopping government functions, there is no basis for tolerance.

I understand well enough that there are people coming here on September 18 who believe that the people who stormed the Capitol on January 6 are American patriots. They are wrong. Their views are not entitled to deference of any kind or extent. If they get the necessary permits and want to march around like fools chanting about how the government is evil, how Joe Biden stole the election from Trump and all the other nonsense, go ahead. But that’s it. First sign of trouble, arrest them all. Use the same kinds of defense “tools” that have been used against multiple peaceful demonstrations in the past when Trump was president.

The consequences of failure to prepare and act appropriately on September 18 are too grim to contemplate. But they are real. There’s a popular saying on social media: “f*ck around and find out.” So it is written, so let it be done.

Facing the Abyss – What Should CDC Do Now?

The COVID-19 virus that Trump predicted would “just go away” has now killed More than648,000 Americans out of more than40 million cases. https://wapo.st/38PnK3N

The leading states in new deaths are, unsurprisingly, South Carolina (+36%), Florida (+32%) and Texas (+24%). As cooler weather approaches and more people stay indoors more of the time, the cases/deaths toll can be expected to rise, especially in places with low vaccination rates and persistent refusal to follow national health guidance on masking and distancing. It is what it is.

Predictions now always face opposition from the determined crowd of COVID deniers, anti-maskers and anti-vaxxers who are doing their best to ignore reality and push the country closer to the abyss. This is happening despite the overwhelming evidence that the vaccines are safe and effective and that masking works to reduce infection rates. The excuses offered for rejecting vaccines, masking, etc. are too well known to warrant recital.

The CDC and the leaders of the healthcare community that know the most about all this have, to be sure, made “mistakes” during the runup from early 2020 to now. Those mistakes are an inevitable part of the steep learning curve during a novel virus epidemic, especially when combined with inept and corrupt national leadership promoting bogus cures and inspiring resistance to promising candidates to contain the spread. We are where we are.

The question now is what could be done to change the national narrative. I address this with full awareness that millions of Americans would rather risk a horrible death than be seen to “comply” with national health guidance. There may be nothing we can do about them, but I think there are some things we haven’t tried yet.

Starting with the CDC, setting aside the chaotic approach in the early days when Trump’s political pressure seemed to influence CDC’s public posture, I have been troubled by what I label “website data bloat.” The CDC Data Tracker [https://bit.ly/3hd72A0] is the object of my derision. The site is an extraordinary trove of information for Job and others with much patience, consisting of a multitude of boxes and lists and maps, many of which are redundant or require some study to fully understand what is being shown.

I speculate that the site is the product of turning over the communication function to programmers who believe more is always better and just don’t know where to stop or how to organize information to tell a story rather than “show what we’ve got.” But, whatever the root cause, the site, for all its robustness, does not communicate the story as dramatically as it could. And if anything cries out for dramatic storytelling, it is the continued, and avoidable, rampage of COVID through America.

It should come as no surprise at this late date that, having been blunted in impact among most older people (who, generally, have a higher percentage of vaccinated individuals than other cohorts), is turning its mindless “attention” toward other groups, including children, many of whom are too young to be vaccinated according to the latest protocols.

In my view, parents of young children who refuse vaccination should be prosecuted for child endangerment, but we know that’s not going to happen. We can, however, more effectively communicate the danger.

This is how. It will require a fundamental change in the way the government does things.

Instead of presenting a vast array of charts/graphs/pathways to still more charts/graphs and offering data in various formats (gross, per capita, per this and that), focus on one thing: the message. This is a situation in which the data should be used not just to inform but to persuade. To teach. To affect.

So, what to do?

First, move all the “just data” charts/graphs to the back of the site with a simple index of what’s there.

Second, in the front, using graphs backed by data, show the key facts in a direct comparison of, for example, deaths of vaccinated versus deaths of unvaccinated people over time. Include data on adverse effects of vaccinations to the extent it exists.

Third, add to the data on cases and deaths, the data on known cases of adverse health impacts (heart, lung, brain, etc.) for COVID “survivors,” information that has largely been ignored.

Fourth, stop focusing on the number of people with one shot. We know that for the main two vaccines, two shots are essential and that’s the key number to show. Focusing on one shot is misleading.

Fifth, show the damn videos!

A wealth of videos exists showing, especially, the end stage of COVID experience in hospital ICUs: the ones where the unvaccinated, wired and tubed beyond recognition, are facing intubation and medically induced comas and are begging doctors and nurses for vaccination and “do anything to save my life.” Show those videos in TV ads in lieu of the bland “please do the right thing” messages now in use. Show the healthcare providers, dressed like aliens from Planet X, saying, “I’m sorry but it’s too late. Vaccines can’t help you now.”

 Some people will see this as unacceptably harsh. To them I say, if you don’t like it, don’t watch. But if done properly (get some experts in this kind of dramatic communication on the task), this stands some chance of jolting resisters into doing the intelligent thing and rushing to get vaccinated.

Make the message simple and clear and unmistakable – if you don’t get vaccinated, this is what may await you. Or your family. Your children. Do it now.

We know from experience that presenting the public with vast quantities of unconsumable statistics is not achieving the level of success we need to stop the pandemic. It is time to pull out all the stops. Stop acting like the government and act like you’re trying to sell something: public health. Survival.

Do it now. We’re almost out of time. The abyss is nearer by the day. It doesn’t have to be this way. Act like it’s the emergency it really is. Just do it.

Texas, the Handmaid State

Texas, through its legislature, has now made unmistakably clear that women are not equal to men. It is no exaggeration to say that Texas has moved from being the Lone Star State to being the Handmaid State. The reference, for the small number of people who don’t know, is to The Handmaid’s Tale, the dystopian novel by Margaret Atwood in which women in a theocratic authoritarian society are forced into what amounts to sexual slavery for the benefit of the men who run the country.

The headlines about the adoption of SB 8 by Texas are still fresh and resonating around the country and the world. The U.S. Supreme Court has refused to enjoin the enforcement of the law while its constitutionality is considered on the merits. Thus, Texas, proud Texas, has become the leader in subordination of women. Through the back door in Texas, a Republican (53%)/male (73%)/aged (67% over 49/14% over 69)-dominated state legislature has introduced a version of Sharia Law to the United States.

There are, of course, significant reasons to believe that SB 8 is unconstitutional under both the Texas Constitution and the U.S. Constitution. Whether Texas likes it or not, the established federal constitutional principles of the Fourteenth Amendment “equal protection of the laws” and “due process” still apply to the states:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The dissenting opinions in the Supreme Court’s astonishing back-handed approval of the Texas maneuver say as much. If the Court’s current view of the law stands, states will be encouraged to adopt similar laws on other subjects, insulating such laws from judicial review. That, as with the current case, is simply unsustainable and would undermine the separation of powers, among other things.

It’s important to understand that Texas thinks it’s been very clever in crafting this statute so that it will escape meaningful judicial review on the merits. It had the audacity to represent to the Supreme Court that it was entirely realistic to believe that the entire elaborate text of SB 8 would have been enacted but that no one would take up the opportunity to earn a quick $10,000 (the minimum statutory damages). In perhaps the most ridiculous legal position I have seen in years, the Texas Attorney General told the Supreme Court, “This Court cannot expunge the law itself. Rather, it can enjoin only enforcement of the law.” He argued since government officials “explicitly do not enforce the law,” the abortion providers “have not shown that they will be personally harmed by a bill that may never be enforced against them by anyone.”

Thus, Texas would have us believe that it passed a law giving private citizens standing to bring lawsuits against other citizens with a minimum payoff of $10,000 plus attorneys’ fees and costs, with zero risk of having to pay fees & costs for the defendant if the suit were judged frivolous, but no one will bother to file suit under the law. That’s a whopper even by Texas standard.

There are a multitude of serious substantive problems with SB 8. Here are just a few of the big ones:

    • The medical premise for the law is not scientifically accurate;
    • The essence of the statute is to confer “standing” on the entire civilian population of Texas to bring actions to sue physicians who perform abortions in conflict with the many non-medical details of the statutory scheme and to sue any person or entity that aids and abets the violation, with the assured award of not-less-than $10,000 in damages for each successful case brought, plus reimbursement of attorneys’ fees and costs incurred;
    • Plaintiffs may not be assessed attorney’s fee and costs even if the suit is thrown out because the statute is ruled unconstitutional, so the millions of potential plaintiffs incur no risk in bringing such suits;
    • Being an aider or abettor is determined without regard to the actor’s knowledge of the legality of the procedure;
    • Relying on some unspecified mind meld, the law authorizes suits against aiders/abettors who merely “intend” to assist forbidden abortions;
    • The clear intent of the legislation is to stack the legal deck against people who would help a woman with an abortion and thereby prevent abortions from being performed in Texas;
    • The statute in the words of Justice Sotomayor, “a breathtaking act of defiance—of the Constitution, of this Court’s precedents, and of the rights of women seeking abortions throughout Texas,” dissenting from the Court’s decision to allow the Texas law to be effective Sept. 1 without appellate review;
    • The Supreme Court’s decision to allow SB 8 to become effective was based on a complete distortion of the holding in California v. Texas, a 2021 case addressing whether injunctive relief could be had against a statute whose key operative provision had been removed by Congress. The Court there said, “to find standing here to attack an unenforceable statutory provision would allow a federal court to issue what would amount to “an advisory opinion without the possibility of any judicial relief.” That is plainly not the case with the Texas statute which is not only enforceable but is drafted precisely to induce massive enforcement by citizen bounty-hunters. The fact that enforcement may occur at the hands of private persons inspired and enabled by a state law does not affect the impact of the law on its targets. Further, the cause of action created by the statute is fully effective and ready to be used, totally different than the tax provision removed from the law at issue in California v Texas.
    • Texas devoted much legislative language trying to (a) prevent federal court review of the statute and (b) control the nature and effect of the review. The very obvious goal was to have the law continue to apply to everyone who had not yet been sued, even if judicial review held the law facially unconstitutional in one case. Texas-sized hubris here, trying to tell the federal courts what they can and can’t do. Texas has decided to simply ignore the Supremacy Clause of the Constitution.

Justice Sotomayor’s eloquent dissent in Whole Woman’s Health v Austin Reeve Jackson, Judge, joined by Justices Breyer and Kagan, said everything that should have been needed to stop the law in its tracks:

The Court’s order is stunning. Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand.

It cannot be the case that a State can evade federal judicial scrutiny by outsourcing the enforcement of unconstitutional laws to its citizenry.

… the Court has re- warded the State’s effort to delay federal review of a plainly unconstitutional statute, enacted in disregard of the Court’s precedents, through procedural entanglements of the State’s own creation

I am going to go out on a limb here and predict that after further briefing and argument, a majority on the Supreme Court will find its way back to reality and reason by rejecting the Texas law on multiple constitutional grounds . Meanwhile, the women of Texas will have to live with the white hoods of handmaidens under the thumb of their totalitarian masters.

*****

For those with the interest and fortitude to understand the details of this astounding act of legislative hubris, here is an unfortunately long explanation of exactly what SB 8 purports to do.

The key scientific idea on which the law is based is that the presence of a fetal heartbeat “has become a key medical predictor that an unborn child will reach live birth.” Texas tries to tie this idea to a further finding that “the pregnant woman has a compelling interest in knowing the likelihood of her unborn child surviving to full-term birth based on the presence of cardiac activity.” Based on my limited review, those “findings” are of limited relevance, since there are other significant predictors of ultimate viability and nothing in the law specifically addresses the communication of this specific information to the pregnant woman considering an abortion.

Instead, absent a “medical emergency,” the statute bans abortions after the mere detection of a fetal heartbeat and nothing more. Adding to the pretextual nature of this, the statute conveniently fails to define “medical emergency,” thereby creating a condition in which both the physician and the pregnant woman can never be certain that later litigation will not reject the physician’s determination and expose the physician to an intolerable financial risk.

It’s important to understand that the statute does not directly expose the pregnant woman to lawsuits – the targets of the legislative scheme are the doctors, clinics and anyone else who,

Knowingly engages in conduct that aids and abets the performance or inducement of an [prohibited] abortion, including paying for or reimbursing the costs of an [prohibited] abortion through insurance or otherwise … regardless of whether the person knew or should have known that the abortion would be performed or induced in violation of this chapter….

The sweep of this language encompasses every imaginable form of support for the abortion process and is plainly designed to intimidate medical personnel, insurance companies as well as friends and family of the pregnant woman.

But that’s not all. The statute authorizes civil damage suits against any person who “intends to engage” in forbidden aiding and abetting of a prohibited abortion. No, I’m not making this up. We are in the land of science fiction, popularized by the movie Minority Report in which a special police force is authorized to arrest murderers before they commit their crimes. In Texas’ case, the “offense” is civil, not criminal but the penalties are large enough to deal a death blow to the finances of many people (minimum statutory damages of $10,000 plus costs and attorneys’ fees).

The damage provisions apply to every forbidden abortion the defendant performed or aided/abetted. If multiple parties are sued for aiding and abetting a single abortion, it appears the plaintiff stands to collect the minimum damages against each one.

Under the special statute of limitations applied by Texas, the specter of being sued will hang over potential aiders/abettors for six years.

The drafters anticipated that there might be other defenses presented to courts in the civil cases and have preemptively eliminated them. Thus, the following are rejected as possible defenses: a good faith belief in the unconstitutional nature of the law, reliance on court decisions that are later overruled or reliance on federal court decisions that are “not binding” on the state court where suit is brought.

These provisions are designed to prevent judicial review by federal courts of the state’s statutory law as written and as applied. Texas has, apparently seceded from the U.S. Constitution, or at least thinks it has.

In a cynical twist, Texas added a provision that seems at first look to mitigate the intimidation created by the rest of the statute: it provided an “affirmative defense” for those sued under the statute if (1) the defendant conducts a “reasonable investigation” and (2) then “reasonably believes” that the abortion physician “had complied” or “would comply” or “will comply” with the statute. I say this is cynical because the Texas legislators may be presumed to understand that that whatever a “reasonable investigation” means, an aider/abettor trying to conduct such an investigation will almost certainly be stymied by the privacy provisions of HIPAA (the federal Health Insurance Portability and Accountability Act of 1996), not to mention the natural distaste any doctor will have to being embroiled in a lawsuit. The burden of proving an “affirmative defense” is on the person asserting it, so this looks like a Texas head-fake.

Not content to stack the deck against women, their physicians and their families and friends, Texas has added a provision barring absolutely the award of attorneys’ fees and costs against a defendant. This means that the most egregious unfounded lawsuits brought by damage-hunting lawyers and others can be brought with impunity. Which is, of course, exactly what Texas wants – a legal unchallengeable in terrorem regime that will force Texas women to take significant health risks and/or incur staggering expenses to get an abortion regardless of the reason or need. The statute also enables bounty-hunting plaintiffs to bring suits where they live against defendants who live across the state, with the proviso that venue can only be changed if the plaintiff agrees.

The statute also immunizes the state of Texas and its officers from any legal challenge to the statute and further provides that if a court finds the statute unconstitutional in its application to one person, the statute may still be enforced against everyone else. This is an obvious attempt to deprive the federal courts of jurisdiction to adjudicate the constitutionality of the statute as written and not just “as applied.” The courts of Texas may stand for such a violation of the separation of powers, but it is hard to imagine that the federal courts will accept it.

Perhaps the most extraordinary aspect of SB 8 is the provision that purports to instruct the courts in the nature and scope of their decisions and in the meaning of “unconstitutional:”

No court may decline to enforce the severability requirements … on the ground that severance would rewrite the statute or involve the court in legislative or lawmaking activity. A court that declines to enforce or enjoins a state official from enforcing a statutory provision does not rewrite a statute, as the statute continues to contain the same words as before the court’s decision. A Judicial injunction or declaration of unconstitutionality: (1) is nothing more than an edict prohibiting enforcement that may subsequently be vacated by a later court if that court has a different understanding of the requirements of the Texas Constitution or United States Constitution.

This is Texas-size hubris that banks on the willingness of the Supreme Court of the United States to permit a state to decide for itself the nature, scope and effect of the Court’s decisions as regards the U.S. Constitution. Maybe the current Court will buy that nonsense, but I will be surprised as it would seem to overturn the very foundations of the federal system and the separation of powers, among other things.

Texas gives prevailing parties in any constitutional or other challenge to the abortion law three years to file for award of attorneys’ fees and costs. This opportunity applies even if the plaintiff in such suit wins the case on grounds that the severability provisions are unconstitutional or preempted by federal law!

It appears that the desperation of the Texas legislators to insulate SB 8 from federal court review has led them to a strange and untenable place. The statute contains a confused and obtuse section that appears to say that even if a court finds the statute facially unconstitutional, the statute shall still be severed, and the “unconstitutional applications” shall remain enforceable. Further, in such case the statute “shall be interpreted as if containing language limited the statute’s application to the persons, group of persons, or circumstances for which the statute’s application will not violate the United States Constitution and Texas Constitution.

That seems like an overt invitation for the courts to rewrite the legislation to help the Texas legislature save it. There may be precedent for such an astonishing approach, but I am not aware of it. That is, I believe, precisely what courts don’t, and should not, undertake. If the legislature writes an unconstitutional statute, it is the responsibility of the legislature to rewrite the law to repair the damage, unless some form of severance is possible that satisfies the court that it is not in fact just rewriting the law.

The legislation forces the physician to try to talk the woman out of going through with an abortion. This occurs through a series of compulsory disclosures and medical advice that the law declares, ipso facto, to be medically accurate and sound without any specific knowledge of the health condition of the woman in question.

The law addresses the issue of rape/incest and developmental abnormalities by exempting the woman from being forced to hear an explanation of the sonogram images, but rape/incest/developmental abnormalities, and, for that matter, threats to the woman’s life, are not otherwise treated as relevant to the process by which the woman gives consent to the abortion.

Finally, note that the Texas Constitution includes the following:

Sec. 3. EQUAL RIGHTS. All free men, when they form a social compact, have equal rights, and no man, or set of men, is entitled to exclusive separate public emoluments, or privileges, but in consideration of public services.

But it also includes this:

Sec. 3a. EQUALITY UNDER THE LAW. Equality under the law shall not be denied or abridged because of sex, race, color, creed, or national origin. This amendment is self‑operative. (Added Nov. 7, 1972.)

But also this:

Sec. 32. MARRIAGE. (a) Marriage in this state shall consist only of the union of one man and one woman.(b) This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage. (Added Nov. 8, 2005.)

But there’s also this:

ARTICLE II

THE POWERS OF GOVERNMENT

Sec. 1. SEPARATION OF POWERS OF GOVERNMENT AMONG THREEDEPARTMENTS. The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are Legislative to one; those which are Executive to another, and those which are Judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.

I predict the ACLU and other entities that are going to challenge SB 8 are going to have a field day with these contradictory provisions, some of which are inconsistent with existing Supreme Court precedent and, of course, the U.S. Constitution.