Category Archives: Law

DOJ Defends Trump’s Defamation of Jean Carroll

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

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

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

Preliminary Statement

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

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

Background to DOJ’s Analysis

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

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

As the District Court also noted in the Carroll case,

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

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

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

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

Facts in the Carroll case

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

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

DOJ’s Argument

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

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

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

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

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

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

Stated differently,

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

And,

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

And,

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

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

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

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

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

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

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

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

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

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

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

 

Manchin Both Ways – Political Double Speak

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

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

Principle                     Manchin Position                    Result                      Effect on Democracy

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The final word from Rubin, well and truly said:

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

 

 

Trump, Seriously

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

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

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

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

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

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

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

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

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

I Am Never Wrong

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I also never exaggerate. Believe me.

Why then do things not always work out the way I want them to? I realize that my unerring instincts were not one of the self-evident truths to which Thomas Jefferson referred in the Declaration of Independence, but still, things should be working out better because I’m always on the right side and always right.

How, for example only, can it be true that, as former Republican congresswoman Barbara Comstock said on Meet the Press, May 30:

.… many Americans“ still don’t realize how violent that [day] was. … People are still talking about [sic] these were like tourists. We need to have that full story out. It’s going to get out one way or the other.

[As noted in an opinion piece by Washington Post Digital Opinions Editor (??) James Downie. https://wapo.st/3uzxCqM]

Because I’m never wrong and that is one of the most improbable statements I’ve seen made about the January 6 Trump-directed attack on the Capitol and the 2020 election, I went to the Meet the Press transcript, conveniently provided by NBC at https://nbcnews.to/3uIo7pc in search of context.

[An aside: Chuck Todd opened the show with, “And a good Sunday morning. And I hope you’re enjoying this Memorial Day weekend, wherever you are.” Interested to note that the Republican Party has not demanded hysterically that Todd be removed, nor has it questioned his patriotism for suggesting that Memorial Day was a time that could be enjoyed. No, they saved that vitriol for Vice President Harris who tweeted almost exactly the same sentiment. You’d have thought she’d asked for help from Russia or something.]

Returning to what passes for reality, Ms. Comstock was on the show apparently because she “spent the week unsuccessfully lobbying Republican senators” to vote for a commission to investigate the January 6 insurrection. Her effort failed in part because Mitch McConnell, aka MoscowMitch on Twitter, was opposed: “There’s no new fact about that day we need the Democrats’ extraneous commission to uncover.”

Well, if McConnell is right about that, I must be wrong. Impossible. How, for example, would McConnell know that we already know everything that’s important to know about what happened on January 6? Hmmhh? How does he know that? That claim alone requires further investigation. If McConnell knows everything important there is to know about the Capitol attack, he should be examined under oath to find out what he knows. If he is lying and doesn’t know anything important, he’s going about his business in a curious way. The truth, of course, is that he doesn’t care what happened on January 6 as long as no one can pin it on him, his Congressional buddies in the far-far-right wing of the Republican Party or the former president whom McConnell worships as a living god.

For reasons that defy understanding, Chuck Todd described McConnell as “being honest publicly” in admitting that the greater the light shed on January 6, the worse for Republicans in the 2022 mid-terms. Todd: “That’s why he’s against it, period.” The irony, of course, is that Todd implied, correctly, that McConnell is rarely “honest publicly.” And if that’s true, it’s not a stretch to conclude that he’s rarely honest in private either. The truth  hurts. Or it should. Todd gets a C minus for this non-revelation. McConnell gets an F.

But let’s get back to Comstock’s assertion that “… many Americans still don’t realize how violent that [day] was….” She cites as proof that “People are still talking about [sic] these were like tourists.”

Completely wrong. “People” aren’t talking about the Trump-mob as if they were tourists. One Member of Congress said that. A Republican, of course. As for “many Americans,” I suggest Comstock is gaslighting us. After a bazillion words and hours-and-hours of videos have been produced on the subject, it is simply not possible that “many Americans” do not understand the violence of January 6. To be sure, many of them continue to assert that the mob was actually “antifa,” all of whom came dressed in Trump paraphernalia & carrying Trump flags, and if there were any Trump supporters in the mob, they were simply carried along with the crowd of antifas. Oh, and Black Lives Matter people also. BLM was also involved in the attack, wearing Trump gear and bearing Trump flags. Sure.

If it were true, and it’s clearly not, that the January 6 mob was antifa and BLM, why would the Republicans not be jumping at the chance to expose the truth about the attack instead of resisting the creation of a January 6 Commission at every turn? How would the Republicans explain the presence of Ashli Babbitt, the woman shot trying to force her way into the House chamber?

And if antifa and BLM were behind the attack, wouldn’t the Republicans want to know who planted the pipe bombs on January 5 at the RNC and DNC? The video shows a person in a hoodie whom many of us believe was a female whose form and movements suggest Lauren Boebert, a Republican Member of Congress. We have no hard evidence beyond the video, but you’d think that the Republicans would be anxious to put that question to rest and to pin it on antifa or BLM. But, no, they oppose any further investigation.

You’d have to be either dead, severely ill or a delusional Republican to be unaware of the violence of January 6. Comstock is wrong and I’m right. The Republicans in Congress know the awful truth about January 6 and are living under the delusion that they can somehow prevent the truth from being told. They know Trump is guilty. The Republicans are protecting Trump and almost certainly some of their own Members of Congress. Their claims about January 6 are as nuts as Marjorie Taylor Greene, aka MTGCuckoo, who claims school shootings were staged and … forget her, too bonkers to warrant more attention.

But I bet the Republicans in Congress and, formerly, the White House, are not sleeping too well, wondering who among the more than 400 people arrested so far is going to spill the beans to secure a lighter sentence. This issue is never going to go away. It will be like a weight, a yoke if you prefer, around the necks of every Republican running for office in 2022 and beyond. The real question is whether the Democrats will be sufficiently astute to use the weight effectively. It’s past time. Tick tock.

January 6 Commission Cannot Be Bipartisan

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Manu Raju reports on Twitter:

Pelosi, on call, tells Dems re Jan. 6 probe that they can either: 1) Push for another Senate vote on commission 2) Create select committee 3) Allow existing committees to probe Jan. 6 4) Ensure one committee, like House Homeland, “take charge of investigation,” per source on call.

It’s time to stop the nonsense. The Capitol attack occurred almost six months ago. More than 400 people have been arrested but there are no trials scheduled as far as we know. Manhunts continue, presumably. Rumors are rampant about extent of pre-planning among white supremacy groups, involvement of Members of Congress and many other possibilities.

The trail gets colder by the day. The Republicans in Congress have made it clear they will not agree to anything in the way of bipartisan Congressional investigation of the attack. There is no reason to expect this to change. Ever. Mitch McConnell has been explicit that he sees no political gain for Republicans, only harm, in such an investigation. Retaining political power is all that matters to McConnell.

So let’s get over it. This is not a case where some small subset engaged in terrorist acts against the national government. The Capitol attack was instigated by Donald Trump who told the mob he was going to go with them to the Capitol to “stop the steal.” He had no evidence then and has none now to support his claim that the election was rife with fraud and stolen. The entire episode was an attempt to force his installation as president despite having lost the election. This was a mob of Republican supporters. It’s on tape. Republicans’ claims that the January 6 mob was “antifa” or “Democrats” or aliens from another planet are all of a piece – blatant lies.

Republicans cannot investigate themselves. And they surely will not. How many shouting matches do we have to watch in hearings in which the likes of Jim Jordan disrupt, interrupt and deflect to prevent any meaningful business from occurring?

Democrats, the fate of our democracy is on the line here. Republicans are not going to cooperate in a process that may well reveal the complicity of not only the former president but many members of Congress as well. It’s time to get on with the investigation. Rather than trying to do this through the blunt instrument of Congressional hearings, it should be  in the hands of the Department of Justice and the FBI. No matter what is done or how it’s done, the Republicans will cry foul and say Democrats are just trying to extract political revenge. Let them bellyache all they want.

Repeating myself, it is widely believed by credible authorities, see, e.g., the letter signed by 100 scholars of democracy at https://bit.ly/3pbvjJu, that the fate of American democracy is literally at risk now as Trump continues his Big Lie from his stronghold in Florida and millions of Americans continue to believe the unbelievable claim that the election was stolen. A solid investigation will surely take some months to complete, so let’s get on with it. Ignore the Republicans’ wailing. They have shown their true colors. They are not red, white and blue. They will object even if the investigation produces 100 percent reliable evidence so stop playing their game and move on without them.

 

Flight of the Valkyries

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Having looked at the photo above, were you reminded of Wagner’s Flight of the Valkyries? https://www.youtube.com/watch?v=3YOYlgvI1uE

Now maybe? That’s what comes to mind for me, but you may be more familiar with the song popularized by the late John Denver, The Eagle And The Hawk. It begins with “I am the eagle, I live in high country in rocky cathedrals that reach to the sky,” and ends with “And reach for the heavens and hope for the future and all that we can be, and not what we are.” It’s a short song but, for me, quite moving, a naturalist’s prayer perhaps.

The American eagle (technically, the Bald Eagle) is the quintessential iconic symbol of the United States, serving as our national bird and often presented as a representation of American power and strength, especially military power. However, Americans historically have been among the world’s great consumers, rapaciously taking everything that was available and often leaving nothing to continue delivering the seemingly endless cornucopia of plenty to which most Americans have become accustomed.

So it is that the history of the national bird is fraught with slaughter, although other factors contributed to the decline in North America from 300,000 to 500,000 estimated population in the early 18th century to only 412 nesting pairs in the 1950s. According to Wikipedia, factors in the decimation included habitat destruction, shooting (legal and otherwise), power-line electrocution, collisions in flight, oil/lead/mercury/pesticide pollution, and by human and predator intrusion at nests. https://en.wikipedia.org/wiki/Bald_eagle Perhaps fittingly, a Yahoo or Google search for “American eagle” takes you to shopping websites.

The good news is that once DDT was banned and bald eagles were legally protected, the  population of these spectacular creatures recovered. Today they may be found throughout the United States and Canada. Alaska, in particular, has a robust population of bald eagles and tourists there are always excited to see them. So it was when we took my two grandsons on an Alaska Inside Passage cruise in 2017. One of the highlights of that extraordinary experience was a tour on a fishing boat that stopped at an island owned, we were told, by Native Americans and whose eagle population was thriving. The mates on the boat had some fish to share with the eagles who were most responsive to the bounty thrown into the water. Here is a small sample of what we saw.

 

Saved the best for last:

 

 

Time for Strong Action Against Unruly Air Travelers

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Back in July 2020, when the pandemic was still raging around the country, the Association of Flight Attendants called on the Federal Aviation Administration to mandate masks be worn by passengers on commercial flights. https://bit.ly/3yGZqgm The AFA called the FAA’s failure to act “absurd,” and it was. One can easily imagine that the FAA was, like many other federal agencies, intimidated by Donald Trump and his overt resistance to admitting the seriousness of the pandemic which (despite his assurances it was under control and would soon disappear “like magic”) has been responsible for the deaths of what is approaching 600,000 Americans.

Frankly, madam/sir/whomever, I really don’t give a damn about your “rights” and your claim to “freedom” to put others at risk. Air travel has proved to be relatively COVID-risk- free, and the widespread implementation of vaccinations is making it more so.

Nevertheless, many remain vulnerable and while the federal mandate is now at long last in place, enforcement remains a problem. The union president noted that while airline crews were doing better in protecting themselves with masks, some customers continue to resist. Threatened bans on future travel were insufficient deterrents. Flight attendants were subjected to verbal abuse and even physical attacks, for which, apparently, the airline employees are left to their personal legal remedies.

Most recently, it was reported that a Southwest Airlines flight attendant was attacked by a passenger and lost two teeth, among other injuries. https://bit.ly/3hYwbjb  Once again the president of the local flight attendants union sent a letter to the airline’s CEO calling for more aggressive action, since this was “just one of many occurrences.” The letter said,

Today’s traveling environment requires a new level of firmness in both tone and direction to ensure proper control in the cabin of our aircraft as the attitudes and behaviors of the flying public have, unfortunately, declined.

Part of the issue is, as the union noted, “Oftentimes, appropriate actions to maintain a safe environment have been misconstrued as being unkind or inhospitable. As alcohol sales are added back into this already volatile environment….” Airline reluctance to engage passengers aggressively may be particularly affected now that the pandemic appears to be receding and national policy is opening the door to increase travel. Pent-up demand for travel is very strong, so a near-term major increase in both travel and incidents may be in the offing. Airlines are likely concerned about any action that will be seen as off-putting by some passengers.

If so, that’s no excuse for inaction. The union letter noted there were 477 incidents on Southwest Airlines alone in the five week period ended May 15. The total incident count nationally must therefore have been in the thousands.  This is not just a Southwest Airlines problem. According to USAToday,

The FAA has taken notice of a spike in passengers behaving badly, adopting a zero-tolerance policy in January and extending it in Marchso it’s in place throughout the pandemic.

Since Jan. 1, the agency said it had received approximately 2,500 reports of unruly behavior by passengers, including about 1,900 reports of passengers refusing to comply with the federal facemask mandate.

The agency has proposed hundreds of thousands of fines, including $258,250 so far in May.

That’s all well and good, but likely more must be done to stop the escalating attacks on flight attendants working to keep everyone safe in flight.

The union letter asked for three steps:

  • Better inform passengers that misbehaving could land them on Southwest’s restricted travelers list and result in potential fines, criminal charges and possible imprisonment:  “The flying public needs to understand that egregious behavior will result in being banned from flying with Southwest Airlines.”
  • Be consistent in policies: “No passenger should be removed from one flight only to be permitted to board the very next Southwest Airlines flight after a noncompliance incident. We ask that you take a strong stance to ensure that unruly passengers are not welcome to travel with us. Period. Full stop.”
  • Demand the U.S. government increase the number of federal air marshals on flights and request that they “get involved and take action” when crew members are threatened.

Those steps are all good, but I believe more is required. A number of possibilities come to mind.

  1. Give each boarding adult passenger a card that states unequivocally the mask and other pandemic-related rules, that these rules are requirements of federal law and/or airline policy and not subject to discussion or debate and will be enforced strictly throughout the flight. Failure to comply will result in arrest at the next stop.
  2. Anyone physically attacking a flight attendant will be sued on behalf of the attendant by the employing airline. Not may but will. For serious actual and punitive damages. Count on it.
  3. Any person physically attacking a flight attendant will be, not may be, will be banned for life from flying on that airline.
  4. The federal government should add a new policy that if a passenger is found guilty and/or liable for assaulting a flight attendant or other crew, other airlines will be notified of the identity of that passenger, so they can take whatever action they want to take in the circumstances. Such passengers are clearly unsafe for those around them, so safety considerations warrant such disclosures.

In short, adults will be expected to act like adults. If you can’t comply, don’t fly. If you do fly and you don’t comply, you will, not may, face severe consequences, guaranteed.

This will seem harsh to some and downright un-American to others. Too bad. It is intolerable and unconscionable that flight attendants should be subjected to the reported abuses by inconsiderate and violent jerks who think the laws and regulations should not apply to them. There is no doubt that flying commercially involves a degree of regimentation. This is done for the safety and comfort of everyone involved, not just the few who think they are above the law. This is not new.

If the union and my reforms are implemented, it seems most likely that violent incidents in air travel will decline swiftly and significantly. With any luck, in the slightly distant future, the masking rules may be relaxed. Until then, it’s time for the airlines and the government to act decisively to restore consumer confidence in air travel and to protect the people who are in place to protect the rest of us.

DC Statehood – Redux

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Politico apparently wants to put the knife into the DC statehood movement. It just published Your All-Purpose Wonk’s Guide to Why D.C. Statehood Is So Hard  https://politi.co/3ymTtVF where this appears:

Attorneys general ranging ideologically from Robert F. Kennedy to Ed Meese have weighed in on the same side of this argument: Because the federal district was created by the Constitution, only an amendment to the Constitution could turn it into a state; and only an amendment could grant D.C. votes in the House and Senate.

Ridiculous. If Constitution had flatly said “DC may be made a state by an act of Congress pursuant to its exclusive authority over the District,” there would be zero basis for arguing that a constitutional amendment was necessary. While the Constitution does not contain that precise language, there is no language that expressly bars the District from being converted into a state under that same exclusive legislative control the Constitution plainly did give Congress.

The Politico article continues:

The 23rd Amendment says “the district constituting the seat of government of the United States shall appoint” presidential electors in a manner requiring ultimate congressional approval. Under the statehood bill just passed, the new city of “Washington, Douglass Commonwealth” would get three electors, just like the other low-population states—but according to the 23rd Amendment, that tiny strip of land designated as the new “federal district” would also have three electoral votes.

This is illogical reasoning. If “ultimate congressional approval” is required for the new “tiny” federal enclave (author’s description, not mine), there is no reason Congress could not simply fix the problem, if it is one.

This is what the 23rd Amendment actually says:

Section 1

The District constituting the seat of Government of the United States shall appoint in such manner as the Congress may direct:

A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment. [emphasis added]

Section 2

The Congress shall have power to enforce this article by appropriate legislation.

Not only is the power of Congress to address the issue of electoral vote for the seat of government plenary (unqualified, absolute), but the text of the amendment is unambiguous that the federal enclave would get three electoral votes. The Politico article sees this as an insuperable problem because “depending on how specifically the lines of this remnant are drawn, it’s possible that the only residents of that zone would be the First Family.”

But unless one has the view that no increase in total electoral college votes is possible, a position not supported by the Constitution, this is not a problem at all. True enough, the District’s electoral vote would be determined by the number of voting citizens living within the District’s boundaries, which would be a small number than other “states,” but so what? Over time it’s likely that more people would move to the District zone and the “problem” would recede. Why is this any different than changes in population in other “states,” that have the effect of increasing electoral votes for some states and reducing votes for others? Oh, and by the way, the pending legislation does not define the federal enclave so that the only residents are the First Family. But nice try.

The Politico author translates those people in the federal enclave into “more or less nobody.” Another article adds to the silliness with the argument that “the result is a potential nightmare scenario in which a federal district exists where “zombie” electoral votes could be cast on behalf of people camping out on the Mall overnight for partisan political advantage.” https://nym.ag/3or64Cs Is it possible that writers of these pieces do not understand how voter registration and voting work in this country? If it were possible to do as they speculate, would we not have seen massive temporary migrations of “campers” moving to key swing districts to vote there rather than, say, their actual place of domicile where the outcome is certain? Republicans in the wake of Trump’s thumping in 2020 have twisted themselves into knots even sailors can’t imagine, and no such fraudulent voting was uncovered. The zombies are not the Mall campers. You can take it from there.

Fortunately, that same article just  cited notes this:

Stephen Vladeck, a professor at the University of Texas School of Law who has studied the constitutional issues around this, said that even without repeal, the text of the amendment gives Congress the power to enforce it “by appropriate legislation.” This means that Congress could simply pass a bill by the normal legislative process to, for example, hand the district’s electoral votes to the winner of the national popular vote, absent a new amendment.

Bingo! We can stop worrying about how the electoral votes of the federal enclave will be directed because Congress has complete control of that outcome and can avoid all the insane scenarios dreamed up by opponents of DC statehood.

It’s surprising that the author of the Politico piece, a person with a hugely impressive curriculum vitae, https://bit.ly/3v1s2i7, would conclude his analysis with a smug dismissal that suggests, without analysis, that there is no constitutionally acceptable way to address the issues raised by the 23rdAmendment. Certainly, he is correct that there are politically fraught issues here. Republicans are dead set against allowing the District of Columbia to become a state, but their constitutional arguments are just a cover; their opposition is grounded in their fear of adding a likely Democratic state to the mix. Their resistance is about retaining political power and nothing more.

In thinking about this, we should keep in mind that the 23rd Amendment was adopted to fix a political problem that would cease to exist if DC were made a state and a federal enclave were created to preserve the plenary authority of Congress over the seat of the federal government. The 23rd was not adopted to bar statehood for DC. If it were intended for that purpose, it could have just said so. It didn’t ,and there is no reason in the Constitution to see it otherwise. Since the purpose of the 23rd Amendment can be satisfied another way, it should be the case that, given the express and indisputable plenary authority of Congress over the federal enclave, a legislative solution is feasible and acceptable. Where there is a will, there is usually a way.

AMTRAK — Communications 101

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Late at night, I received an email from AMTRAK. I am a big fan of AMTRAK. I strongly prefer train travel over air travel between Washington and New York City and have used the regular trains, business class and, occasionally, Acela over the years. Most of the time, everything works pretty well, despite the horrors of the restrooms.

Here is Amtrak’s message, inspired no doubt by the CDC’s latest guidance:

Hi Amtrak Passenger,

Starting May 23, Amtrak will return to selling full seat capacity on most of our trains.  While you may have someone sitting next to you, our trains offer large spacious seats, ample legroom, no middle seats, and the freedom to move about the train.

When searching for travel, you will see that we added a percentage indicator that shows how full each reserved train is at the time of booking. You can use this feature to book trains that have more space and check how full your train is prior to travel.  If capacity exceeds comfort levels, you can change your ticket without incurring a fee (a fare difference may apply).

[In this spot was a screen capture of the Amtrak listing showing the percentage of seats full on a particular train. For reasons that defy understanding, WordPress will not permit that item to display]

In the meantime, Amtrak has been upgrading our technology, fleet, stations, and processes to make travel as seamless and safe as possible. This includes upgrades to the Amtrak app, where you can book, get boarding information, and check train status from a mobile device and receive real-time information before boarding. We’ve also been focusing on making the experience touch free, including contactless boarding, scanning tickets directly from the Amtrak app and installing new kiosks, which we will be rolling out throughout the year.

Thanks for being a valued Amtrak customer.  We’ll see you onboard!

The most up to date arrival and departure times are available on Amtrak.com, our free mobile apps, by texting “Status” to 800-872-7245 or by calling 1-800-USA-RAIL (1-800-872-7245).

Join us on facebook.com/Amtrak
Follow us on twitter.com/Amtrak

That’s grand, as far as it goes. My question is simple: why didn’t this message use this opportunity to reinforce the federal mask mandate? Given all the uncertainties associated with changing CDC guidance, plus the hysterical anti-vaccination, anti-mask, anti-public health, etc. crowd continuing their foolish anti-science ranting, you would think someone at AMTRAK would have piped up to note the absence of a reminder about the mask policy.

The failure to cover this runs the risk that travelers will show up, sans mask, claiming they saw the AMTRAK email and it said nothing about masks, therefore “I DON’T HAVE TO WEAR ONE AND YOU CAN’T MAKE ME, MY RIGHTS, MY RIGHTS” etc., you know the drill by now. This obvious omission of an important message may place complying passengers in a difficult place, as has occurred on numerous airplanes in recent months (kudos to the Federal Aviation Administration for imposing major fines and deplaning the morons who refuse to comply with crewmember instructions).

AMTRAK, do yourself and your passengers a favor and put out another message that makes clear the federal mask mandate still applies in AMTRAK stations and on trains.

 

Democrats, Time to Call the Question on MTGCuckoo

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Media reports, https://wapo.st/3blQSS0, for example, indicate that Marjorie Three Names, real name Marjorie Taylor Greene, known to me as MTGCuckoo, has once again violated House rules and norms of behavior by openly confronting Rep. Alexandria Ocasio-Cortez outside the House chamber, screaming at her and calling her names. WAPO reports that this led “the New York congresswoman’s office to call on leadership to ensure that Congress remains “a safe, civil place for all Members and staff.”

Indeed. It can be frustrating at times to observe the extreme formalities used by Members of Congress in addressing each other during hearings and debates, but those formalities serve a vital purpose. They are a device for keeping the focus on the issues being discussed and to reduce the flaring of tempers and personal recrimination that serious disagreements about serious matters can inspire. By and large they work.

Or at least they worked until the arrival of Donald Trump on the American political scene. Trump consistently behaved like the trashy human being he consistently proved to be. He labeled his political adversaries in his own party with offensive nicknames, made derogatory remarks about their physical appearance and their families, mocked a disabled reporter and on and on and on. His Republican competitors vehemently objected to Trump’s schoolyard behavior until he won the presidency. Then, like the miracle that was supposed to end the COVID crisis at its inception, they bent the knee to him, seeking jobs, swearing fealty to him personally and adopting his constant lies as “alternative facts.”

Trump inspired a new wave of Republican leaders who have adopted his tactics, among them is MTGCuckoo, a QAnon conspiracist among her other charming propensities. She cares nothing for tradition, standards of personal respect or any other norm of civilized conduct, just like her idol, Trump. With the support of 11 Republicans, she was stripped of her committee assignments in February because her extremist remarks that included

questioning whether deadly school shootings had been staged and whether a plane really hit the Pentagon on 9/11.  A supporter of the fantastical QAnon conspiracy theory, she also shared videos with anti-Semitic and anti-Muslim sentiment, and expressed support for violence against Democratic leaders in Congress.  [https://cbsn.ws/3yazBF6] ….

Greene has made a number of incendiary and false statements in recent years, among them that Black people “are held slaves to the Democratic Party,” that Reps. Ilhan Omar (D-Minn.) and Rashida Tlaib (D-Mich.) — the first two Muslim women elected to Congress — represented “an Islamic invasion into our government offices,” and that Jewish megadonor George Soros collaborated with Nazis.

She had previously harassed David Hogg, one of the teenage survivors of the Parkland school shooting, on the Capitol grounds and, reportedly, another member of Congress in a hallway dispute over Greene’s refusal to wear a mask.

This obnoxious and dangerous behavior has not harmed Greene’s appeal with the Trump base. She continues to collect large donations from them. In typical fashion, Republican House leadership has done nothing meaningful to rein in Greene’s manic conduct.

This is on the Democratic leadership. MTGCuckoo is violating every rule  and norm of behavior for a Member of Congress. She craves attention and will do almost anything to get more of it. One of these days someone is going to get hurt because of her low class schoolyard behavior. It may be her or someone else, but Democrats control the House and should put a stop to this immediately before it gets further out of hand. Many of the Trump sycophants look to people like MTGCuckoo for guidance regarding their own behavior. She doesn’t care a bit if she inspires some craven Trumper to act out their violent fantasies on a Member of Congress or someone else.

Closing Note: no doubt someone will decide to chastise me for hypocritically name-calling Greene in the fashion that I am criticizing her. Guilty as charged. Now they don’t have to bother. Greene has earned the nickname I gave her on Twitter, and I’ll continue to use it as long as she behaves like a tantrum-throwing child who makes statements that are, by any standard, beyond the realm of rational behavior. She belongs in rehab, not in Congress. My choice of nickname relates to her behavior, not to her appearance or her family. Apologies, however, to cuckoos.