Category Archives: Law

Georgia’s New Voting Law – Truth or Consequences?

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One of the two replies reacting to my post, Caw! Caw! Jim Crow Returns to Georgia, asserts that I am “spreading lies” about the new Georgia voting law and that “Even the Washington Post gave Biden four Pinocchios for what he said about it. Today’s Washington Examiner explores what’s behind all the lies and misrepresentations:” The Examiner article mentioned can be read at https://washex.am/31Lo8g1

Since the responder is known to me to be an intelligent person with extensive education and professional experience, I cannot just let the accusation of lying pass without comment. Quite a bit of comment, actually. I apologize for the length of this post, but accusations of lying require detailed responses. I have strong opinions about many things but work very hard to cite authorities and avoid false statements.

When someone does something inconsistent with normal practice, the action often raises questions of motive and intent. Doubly so when the asserted rationale has no factual foundation. Examples from the Trump years abound. The call with the President of Ukraine comes to mind. Demand is made for an investigation of something that has no factual basis for the apparent purpose of undermining a political opponent. No other plausible explanation of the event is presented and the documentary record of it is sequestered in a secret server by attorneys for the then president. Strange behavior causes suspicion to arise about what was really going on.

It is more than curious, then, that the new Georgia law was rushed through as if an imminent emergency faced the state’s electoral system. I am not aware that such an emergency existed. What then was going on?

The Washington Examiner tells us  that the “voting reform law contains simple, commonsense measures, most of which … will make it easier for people to vote.” That much is actually true of some parts of the law.

But then the Examiner exposes what I had argued was the underlying reality: the claim that the conduct of the 2020 election showed real risks of fraud that needed to be stamped out immediately when in fact no such fraud was found in Georgia (after, I believe, three audit/recounts [https://cnn.it/3dMbAuL] and the Governor’s own aggressive investigations). No fraud was found in Georgia or anywhere else. More than 60 lawsuits claiming fraud were brought and all were promptly dismissed, mainly for lack of evidence or other legal deficiencies. One of the principal attorneys bringing those cases on behalf of Trump has stated in court filings that, in effect, the fraud allegations made were so outlandish that no rational person would have believed them as being factual allegations. https://bit.ly/3fEhfFr

The only fraud that occurred in Georgia was the attempt by Donald Trump to induce the Georgia Secretary of State to “find” just enough votes to overturn the official results and award Trump the state’s electoral votes. It’s on tape and cannot be denied. https://wapo.st/3wn2Nrr

Thus, the stated rationale for this massive, intricate detailed rewrite of Georgia’s already intricate, detailed election statute was false. There was no fraud requiring the law to be changed and certainly not so urgently.

The Examiner, and my commenter, note that President Biden was wrong is saying that the new law forced polling places to close at 5 p.m. Fine. The President appears to have been wrong on that one point. In fact, that was the only thing the Washington Post fact checkers addressed. See https://wapo.st/3cNHTu0

Maybe Biden was recalling an earlier version of the Georgia statute or was misinformed by staff. Whatever. He apparently made a mistake about one provision in the massive changes to what turned out to be 95 pages of legislative text.

The Examiner was also up in arms over the objections noted to criminalizing the provision of food and water to voters waiting in lines at polling places, claiming that’s the law in New York and “many states.” My research suggests the Examiner is wrong about New York but even if true, it doesn’t much matter. The rest of the Examiner article is just argument about the Democrats’ motives and other things that I decline to waste time addressing. Let’s address the facts and whether I have spread “lies” about the Georgia law, bearing in mind, again, that the entire stated rationale for the changes, in Georgia and a multitude of other Republican states, is a mirage, a political fantasy about voter fraud that never happened.

In a related vein,  by the way, the state of New York is moving toward no-excuse absentee voting, a process that requires a state constitutional amendment. In each vote on this, with one exception, all the negative votes have come from Republicans. https://bit.ly/3rHh1jq

Turning back to Georgia, in drafting my post I did not actually rely on what President Biden said about the Georgia law. I cited a Washington Post article (https://wapo.st/2QIONbe) for a number of specific actions in SB202, all of which I confirmed independently. Recognizing the possibility that I could have made a mistake in reading the complex and detailed language of SB202, I re-examined the legislation after the “spreading lies” accusation. I found the following about what I had written:

  • new identification requirements for casting ballots by mail. TRUE
  • curtails the use of drop boxes for absentee ballots. TRUE
  • allows electors to challenge the eligibility of an unlimited number of voters and requires counties to hold hearings on such challenges within 10 days. TRUE
  • makes it a crime for third-party groups to hand out food and water to voters standing in line. TRUE
  • blocks the use of mobile voting vans. TRUE
  • prevents local governments from directly accepting grants from the private sector. TRUE
  • strips authority from the secretary of state, making him a nonvoting member of the State Election Board. TRUE
  • allows lawmakers to initiate takeovers of local election boards. TRUE

Given that the predicate for the legislation was false and that these “improvements” were rushed through and signed behind closed doors, I stand by my conclusion that the legislation “is voter suppression in the guise of “cleaning up” issues that never existed in the first place.”

My view of this is apparently supported by a large number of major companies that do business in Georgia, including Delta Air Lines and Major League Baseball. The Georgia legislature’s reaction to the criticism from those companies was to attack those companies. See, e.g.,  https://bit.ly/3dwyZjt and any number of many other publications reporting on this. The Georgia Republican Party often rants about “cancel culture” but when faced with “consequence culture,” it has a conniption fit of outrage.

There is more. In looking again at the actual statute adopted in Georgia, I noted some other interesting details.

The Secretary of State was chair of State Elections Board and elected by popular vote.. This is supposed to be a non-partisan position but is now selected by entirely partisan General Assembly. The Secretary of State is reduced to an ex officio nonvoting member of the Elections Board.

There is a new procedure for suspending and replacing county or municipal superintendents. New provisions provide for politically-controlled demands for review of performance of individual local election officials. Toe the expected political line or face loss of your position.

Neither the Secretary of State, election superintendent, board of registrars, other governmental entity, nor employee or agent thereof may send absentee ballot applications directly to any voter except upon request of such voter or a relative authorized to request an absentee ballot for such voter. New restrictions limit who can “handle or return” a voter’s completed absentee ballot application.

“All persons or entities, other than the Secretary of State, election superintendents, boards of registrars, and absentee ballot clerks, that send applications for absentee ballots to electors in a primary, election, or runoff shall mail such applications only to individuals who have not already requested, received, or voted an absentee ballot in the primary, election, or runoff.” The State Election Board is authorized to fine, apparently extra-judicially, anyone claimed to have violated the new rules on handling absentee ballot applications and ballots.

The law limits the days when advance voting can occur and forbids registrars from providing for advance voting on other days even if local circumstances indicate it would be helpful to people voting.

For counting absentee ballots, the process must be open to the view of the public, but no observer may make electronic records of what is observed.

“The Secretary of State shall be authorized to inspect and audit the information contained in the absentee ballot applications or envelopes at his or her discretion at any time during the 24 month retention period. Such audit may be conducted state wide or in selected counties or cities and may include the auditing of a statistically significant sample of the envelopes or a full audit of all of such envelopes. For this purpose, the Secretary of State or his or her authorized agents shall have access to such envelopes in the custody of the clerk of superior court or city clerk.”

What happens if “audit” reveals problems many months after the election result is declared? Who decides? How? The Secretary of State, as noted earlier, has been demoted to ex officio status on the Election Board. Will the solution be produced by the legislature?

Extending poll hours to accommodate a number of voters who were unable to vote during a particular period requires a court order. It is unclear what problem was this intended to resolve & how will it work in practice. Most likely, time and other practical considerations mean that no extended poll hours will be possible.

The “food and water” issue that has garnered much attention might have been more acceptable if it had stopped with “no campaigning,” which is common in many places, but instead, regardless of circumstances, no one, including non-partisan community groups, may provide foo­­d or water to voters in line. An exception was provided for “self-service water from an unattended receptacle,” whatever that means. Can party partisans set up passive food/water stations for self-service immediately adjacent to the voter waiting line and brand them with party or candidate labels?

There is a curious and unexplained disparity in treatment of two particular election offenses. If you “intentionally observe” a voter’s candidate selection, you have committed a felony. But if you “use photographic or other electronic monitoring or recording devices, cameras, or cellular telephones, except as authorized by law [??], to: (1) Photograph or record the face of an electronic ballot marker while a ballot is being voted or while an elector’s votes are displayed on such electronic ballot marker; or (2) Photograph or record a voted ballot,” you are only guilty of a misdemeanor.

Finally, special rules adopted by the State Election Board during a state of emergency “may be suspended upon the majority vote of the House of Representatives or Senate Committees on Judiciary within ten days of the receipt of such rule by the committees.” Politicians will apparently decide whether a declared public health emergency warrants changes to election processes.

To conclude, the legislation is not all bad. For example, I think that replacing signature- matching with identification requirements is a step in the right direction, provided that the identification requirements are reasonable for all classes of voters and do not have disparate effects on, for example, minority voters. It is not clear to me, and apparently to many others more expert in this, that the identification requirements adopted in Georgia satisfy that test, but I suppose we will find out soon enough.

Another provision I think is acceptable is the prohibition on campaigning while monitoring the processing of absentee ballots, although one wonders why it was necessary to impose a communications blackout on what absentee ballot monitors observe during that process and how that ban will work if litigation results and eye-witness testimony is needed.

It is, in short and overall, impossible to accept that, having lost the presidential election and two senatorial run-off elections, the Republican Party in Georgia was suddenly struck with over-powering public-spirited inspiration to straighten out the state’s already incredibly detailed, specific and, based on recent experience, reliable election processes with a bunch of politically neutral repairs that no one thought necessary before the election.

Thus, I remain steadfastly suspicious of massive and rushed legislative actions claimed to address problems that have been found, after multiple deep investigations, to be non-existent. The Georgia legislation, considered in detail and as a whole, seems to lack a rationale other than voter suppression. That’s what I called it, and I believe that’s what it is. Equally important for present purposes, everything I said about what was in the legislature was factually correct. It will take much more than an editorial in the Washington Examiner, the New York Post of the District of Columbia, to show otherwise.

 

Great Expectations Meet Legal Reality

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Politico appears to have joined the ranks of journalists who, having lost their matinee idol (Donald Trump), have turned their attention to throwing dirt at the Biden administration. It’s apparently hard doing political journalism when the President is a normal human being who actually works at his job and doesn’t spend all day demeaning others while praising himself.

In any case, Politico reports that for some reason, not entirely clear to me, the Biden administration may be embarrassed by the prospect that many of the insurrectionists who invaded and debased the Capitol on January 6 may not do much, if any, hard jail time. https://politi.co/3wbBBMj

There is nothing new or surprising about that possibility and no reason for the Biden administration to be “embarrassed” about it.

This click-bait story suggests that it was reasonable to believe that every one of the crazed mob of Trump supporters would be charged with felonies and imprisoned under very long sentences for their crimes. At the same time it notes that the many “lower-level cases” are clogging the District of Columbia federal trial court where all these cases are being “heard.” Those lower-level cases involve misdemeanor charges that typically plead out.

The reason for this is not ‘justice.” If justice were to be had here, all of the people who invaded the Capitol to stop the final approval of Biden’s election victory would be charged with felonies and required to plead to deals involving meaningful jail time.

But practical reality governs in these situations. Mass arrest scenarios rarely lead to jail time for  many who are swept up in the arrest net. This has been true for as long as mass arrests have occurred. https://en.wikipedia.org/wiki/Mass_arrest  The court system simply cannot handle trials of hundreds of people on top of its already heavy case load.

The result is that “deals” are made between prosecution and defense to an agreed sentence, often probation for first-offenders when only property damage is involved, in exchange for a guilty plea that avoids the time and cost of a jury trial. This is true almost regardless of the circumstances, although, as a society, we generally do not treat white people who commit “light crimes” with the harshness meted out to minority defendants.

There is, of course, an unusual amount of visual evidence in these cases — hundreds of hours of video of the crime scene. While the videos show a staggering amount of violence by the mob that led to dozens of injuries to police, it is apparently also true that many of those identified and arrested so far were not actually engaged in hand-to-hand combat with the Capitol Police or in physical desecration of the building. These people allegedly just “went along for the ride.” If so, they almost certainly will end up “pleading” to some misdemeanor offense and may indeed be spared jail time. That is an outrage given the threat to our democratic system that they attempted to achieve, but the judicial system simply cannot cope otherwise.

Politico takes this simple reality to the extreme of making a “federal case” out of nothing in stating that,

The prospect of dozens of January 6 rioters cutting deals for minor sentences could be hard to explain for the Biden administration, which has characterized the Capitol Hill mob as a uniquely dangerous threat. Before assuming office, Biden said the rioters’ attempt to overturn the election results by force “borders on sedition”; Attorney General Merrick Garland has called the prosecutions his top early priority, describing the storming of Congress as “a heinous attack that sought to disrupt a cornerstone of our democracy, the peaceful transfer of power to a newly elected government.

Justice Department prosecutors sent expectations sky-high in early statements and court filings, describing elaborate plots to murder lawmakers — descriptions prosecutors have tempered as new details emerged.

Nonsense. There are plenty of serious cases of violence that will lead to meaningful jail time and other penalties for the perpetrators. Many felons remain to be identified and arrested. This is not going away. It was a “uniquely dangerous event.”

The report is accurate in noting the time pressure on the prosecution, but again this is not unusual in mass-arrest cases. Speedy trial is a constitutional right, sometimes ignored, but a right nonetheless. And we can be sure that these virtually all-white “protestor insurrectionists” will get every advantage to which they are accustomed.

Other than the target of this particular mob, and the inspiration for their attack (the former president), there is nothing especially unusual about these cases. Mayhem has degrees just like other violence and the law treats each case individually. It’s likely that violent “protestors” in Portland and other places are facing the same issues, and opportunities, as the insurrectionists who attacked the Capitol.

I, at least, deeply hope that none of the Capitol attackers is going to receive what Politico refers to as a wrist-slapping. This attack was not a response to a prior event (as, for example, the protests after George Floyd’s murder) – it had a specific goal: to stop Congress from carrying out its constitutional duty to certify the election. The article refers to people “who walked into the building that day without authorization.” That, I  believe, fails to recognize the gravity of what was happening that January 6. Few, if any, of the insurrectionists just “walked into the building” – the proof is in the videos.

Politico says, “the Justice Department will soon be in the awkward position of having to defend such deals, even as trials and lengthy sentences for those facing more serious charges could be a year or more away.” Again, there is nothing “awkward” about this, beyond the simple inability of the judicial system to cope, in a constitutional democracy, with mass-type arrests, whether all at once or individually later for crimes that occurred together. Politico adds to its hyping of a non-existent issue by noting that Trump continues to lie about what happened on January 6, claiming this adds to the “political awkwardness” of the situation.

Wrong. Trump will continue lying and blathering to his last breath. Except for his die-hard political base, no serious person thinks Trump has any substantive contribution to make to the American political situation. It is certainly and indisputably true that Trump can be expected to keep lying about January 6 in an effort to thwart what he rightly fears as criminal prosecution of himself personally. No one is more deserving.

Unfortunately for journalism, Politico uses a common Trump formula in referencing “what many in the court system are referring to as “MAGA tourists,” a phrasing of unknown provenance (who, actually, are the “many” who call the insurrectionists “MAGA tourists?”) and calculated to diminish the significance of what happened on January 6.

Finally, I note that some of the January 6 defendants continue to run off at the mouth on Twitter and other social media, claiming they did nothing wrong and remain proud of their actions that day. Those defendants should face the full weight of the law – no deals for them. Let them stand trial if they like and face sentencing for their January 6 conduct and their continuing indifferent or outright hostility to the rule of law. Unless the judges in these cases want a repeat of January 6 or worse, they had better take a direct approach to such cases that are deserving of no leniency or special treatment.

Caw! Caw! Jim Crow Returns to Georgia

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Acting on the pretext that there is legitimate and widespread lack of public confidence in Georgia election processes, Governor Kemp, behind closed doors guarded by state police, signed a new law restricting voting in Georgia. The bill, 95-pages in length, was introduced in the Georgia Senate on February 17, passed on March 8, read in the House the next day, passed by the House on March 25 and that same day sent to the Senate, passed by the Senate that same day and sent to the Governor who signed it that same day. https://bit.ly/3lVoudr

When engaged in world-class voter suppression, the Georgia government can move faster than a scalded cat. Georgia joins a mob, the current Republican favorite form of action, of 43 states and more than 250 blatant vote suppression bills.

The only significant lack of confidence in state election laws comes from the Republicans’ whining, led by Donald Trump, starting well before the 2020 election, that the election was going to be rigged, if, and only if, Trump lost. If he had won, well then, no problems – voting systems working just fine. The intellectual and moral vacuity of the Republican reasoning behind this idea needs no elaboration. Nevertheless, ….

The sole reasons now given for the “voter fraud” claim are that “many people believe there was fraud.” That, need I point out, is no reason to believe anything. Large shares of the population believe that the Earth has been visited by aliens from other planets/galaxies and large shares of millennials are not sure the Earth is a spheroid shape (yes, they appear to be somewhat convinced that Earth is or may be flat). Remarkable, but that’s what the surveys show. It is what it is. I am not going to touch, beyond this sentence, on the belief of millions that the Earth, in fact, was formed out of the void in seven days.

That many people believe something is not is a justification for any rational person to believe in those ideas. You can believe them, of course; no one will lock you up for those beliefs (you may want to keep them to yourself in job interviews, though; just saying). But just because many people believe something is no reason for everyone else to believe it. Nor is it reason to legislate restrictions on behaviors and processes that are central to the function of our democracy. Unless, of course, your real motive is to undermine democratic processes and thereby ensure that your party, and people who think just like you, remain in power. That, friends, is not democracy; it’s fascism, communism and other similar forms of authoritarianism.

One tip-off to what’s really going on is that the Governor of Georgia has developed vertical pupils in his eyes. New studies confirm that “Vertical-slit pupils are most common among nocturnal predators that ambush their prey.” Science Advances, August 2015. They are also typically associated with poisonous reptiles.

While you’re recoiling at the thought of that, though you recognize it as satire, remember that the Republicans who are advancing this legislation in their states have already tried and failed more than 60 times to persuade courts that they had evidence of election fraud. Even Trump’s own Attorney General, and part-time Trump personal counsel, said there was no evidence of fraud that would have affected the outcome of the election. Even Mitch McConnell, whose relationship with truth is, well, tenuous at best, said Trump lost the election.

So, what to do, what to do? If you’re in the leadership of a Republican-majority state, you fix things (“rig” is, I believe, the correct verb here) so that Republicans don’t lose any more elections. How do you do that? Look no further than Georgia’s SB202.

As reported in the Washington Post, https://wapo.st/2QIONbe,

The new law imposes new identification requirements for those casting ballots by mail; curtails the use of drop boxes for absentee ballots; allows electors to challenge the eligibility of an unlimited number of voters and requires counties to hold hearings on such challenges within 10 days; makes it a crime for third-party groups to hand out food and water to voters standing in line; blocks the use of mobile voting vans, as Fulton County did last year after purchasing two vehicles at a cost of more than $700,000; and prevents local governments from directly accepting grants from the private sector.

The vertical pupil infection has spread throughout the Republican side of the Georgia legislature.

The 95-page law also strips authority from the secretary of state, making him a nonvoting member of the State Election Board, and allows lawmakers to initiate takeovers of local election boards — measures that critics said could allow partisan appointees to slow down or block election certification or target heavily Democratic jurisdictions, many of which are in the Atlanta area and are home to the state’s highest concentrations of Black and Brown voters.

Those steps, according to Governor Kemp’s reasoning , “will take another step toward ensuring our elections are secure, accessible and fair. … the facts are that this new law will expand voting access in the Peach State” and expanded early voting on weekends in every Georgia county.

This legislation was essential, according to Kemp, because of the “many alarming issues” in how the 2020 election was handled, leading to a “crisis in confidence.” Blathering on, in the model favored by Trump himself, Kemp gave himself credit for aggressive investigations of the election frauds, saying that the investigation he directed “got to the bottom of each and every allegation of fraud.”

OK, but then what? Turns out, there were no findings of fraud. Kemp’s own aggressive investigations found no fraud. Kemp then proceeds to simply ignore that reality while claiming that immediate legislative action was essential to fix the fraud problems.

One of the most notable provisions of the Georgia legislation adds to the ability of one voter to challenge the qualifications of another voter. The prior law provided for an elaborate process, including subpoenas and a hearing. The challenger had the burden of proof at the hearing and a right of appeal was provided to both parties to the dispute. The principal change was to add this:

There shall not be a limit on the number of persons whose qualifications  such elector may challenge.

That means that one voter can now challenge thousands of ballots cast by voters of the opposing party. Thus, one Republican voter working with the party in power can undermine the voting process and compel hearings, appeals and other steps that will lead many, if not most, challenged voters to simply give up. And that, I suggest, is the entire idea behind this change in the election law. It is voter suppression in the guise of “cleaning up” issues that never existed in the first place.

The Governor chose to sign the “historic legislation” behind closed doors, guarded by state police and in the presence of six white male legislators. This decision was not accepted by Black Democratic state Rep. Park Cannon who, after knocking on the Governor’s chamber door after being told, apparently, not to knock, was arrested by state troopers.  See  https://bit.ly/3dagtx7 for a disturbing but accurate connection of Georgia’s decision and the history of suppression in the origin story of America.

It comes down to this: some Georgians, though not a majority of Georgia voters, were unhappy with the outcome of the 2020 election. The state went for Biden and for two Democratic Senators in runoff elections. Extensive, repetitive investigations were conducted with the full resources of the Georgia state government to uncover fraud that could have overturned the election results. No such evidence was found. Nevertheless, the Republican-dominated legislature says it had to act. It’s true they withdrew controversial and widely condemned provisions that were aimed squarely at suppressing Sunday voting by Black-majority districts, but that did not stop them from, for example, criminalizing the act of giving snacks or water to people forced to stand in long lines at the polls. Anyone with a reasonably open mind can see what’s coming.

There can be little doubt that Georgia, along with the other Republican-dominated states, is employing an explicit voter suppression strategy to prevent Democrats from challenging their power in the future. Lawsuits have already been filed to overturn these blatant anti-democratic acts.

But we don’t have to wait for the protracted court battles that will ensue. Article I, Section 4, Clause 1 of the U.S. Constitution states:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

As stated by Justice Ginsburg in Arizona State Legislature v. Arizona Independent Redistricting Commission, 576 U.S. __ (2015):

There can be no dispute that Congress itself may draw a State’s congressional-district boundaries.

There is little doubt that the Congress is also authorized by the Fourteenth Amendment, among other provisions, to stop state voter suppression legislation in its tracks if it has the will to do so. This power is analyzed in detail in a Congressional Research Service report at https://bit.ly/31s6j5H

Democrats have the power. Use it. It’s time for the United States to choose between democracy and authoritarianism, whatever its technical form. End Jim Crow … again.

Note: if you are unfamiliar with the Congressional Research Service, see this https://bit.ly/3rqyOuT

 

The Larger Meaning of “Hidden Figures” – Republished

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I am republishing the above-titled post because, remarkably, it remains the most popular piece I have written and seems more relevant now than ever. It was originally published in January 2017. Many people visiting the blog continue to find it. Many of those people are in other countries according to the WordPress reports of site visitors.

In any case, the point I made in “Hidden Figures” remains. Certainly, the insight is not unique to me. More importantly, we continue to repeat the cultural, political and economic mistakes of the past, with the result that American society is consuming itself. It now seems clear that a huge number of Americans  believe that Jefferson Davis was right about Black people. Many of those Americans feel more loyalty to the Confederate battle flag than to the Stars & Stripes. And, in having such loyalties, they are the problem. James Baldwin wrote about this in his remarkable The Fire Next Time in 1963. Nineteen sixty-three! I was still in college. Civil rights was still a national issue. The Vietnam War, not yet but soon.

Baldwin published more than a half-century ago. Not much has changed. I will be discussing his amazing work in a future post. Meanwhile, here is The Larger Meaning of “Hidden Figures:”

The Larger Meaning of “Hidden Figures”

My wife and I saw the movie Hidden Figures this weekend. It’s about three Black women who worked for NASA as “computers” at the beginning of the space race between the United States and the then Soviet Union. “Computers” at that time meant “human calculators,” who ran staggering volumes of numbers, formulas and calculations in geometry and calculus to determine the necessary acceleration, deceleration, orbital angles and the thousands of other details that had to be exactly right to risk sending a human into space. For the most part they used adding machines and, though not seen, likely slide rules as well.

Without giving away too much, the movie is a well-crafted piece of story-telling, funny at times, painful to watch at other times, sometimes both at once. If it proves anything, perhaps it shows that the more things change, the more they stay the same. Having grown up in the segregated 1950s and 1960s in Memphis, Tennessee, there were moments of almost physical pain at seeing graphic reminders of the cruelty and stupidity of the suppression of Black Americans throughout our history.

As bad as slavery, Jim Crow and segregation were for the direct victims, and most of us cannot comprehend how it was to be the constant target of such practices every day of our lives with no hope of change, the larger lesson from this movie is, I believe, the staggering cost to everyone, in the United States and everywhere, of the lost contributions and achievements of which these practices deprived us.  And still do.

In the millions of people directly suppressed by these practices, it is a certainty that there were multitudes of people who would, in other circumstances, have become great scientists, inventors, artists, musicians, athletes, caregivers, writers, teachers and on and on. All of us have lost forever the benefits of the achievements of those people who never had a chance to develop into their individual potentials as human beings. The frightened people of no vision who perpetuated these practices from America’s earliest days even to today in some places have deprived the country and the world of an immeasurable gift.

Now many of those people use the consequences of these practices as the pretext for arguing that young Black males are prone to violence, are uneducated, lazy and shiftless and thus make protection against them as the priority. Imagine the result if the situation were reversed and Black people had been the masters and whites were the slaves and everything else was the same. For an interesting incident to the same effect, see http://bit.ly/2jCAG1X.

We can’t undo history. But we can at least recognize the root causes of the way things are now and thereby be inspired to work to correct what all of us have done. It is no doubt true that many advances have been made and I don’t mean to suggest there has been no progress. But isn’t it self-evident when reading the news that the United States is gravely ill. Complaining on social media or railing at Washington may make for warm feelings but it does not address with action the consequences of our troubled past. If people who can influence change fail to act, how long can our democracy endure?

 

 

The Law-Respecting, Country-Loving People Who Attacked the Capitol

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The FBI has put out another call for public help in “identifying individuals who made unlawful entry into the U.S. Capitol building and committed various other alleged criminal violations, such as destruction of property, assaulting law enforcement personnel, targeting members of the media for assault, and other unlawful conduct, on January 6, 2021, in Washington, D.C.” https://bit.ly/3c10cLE The videos are extremely violent and difficult to watch, but if you think you can identify someone in that mob, you should suck it up and watch them.

These are the same people that Senator Ron Johnson of Wisconsin described this way:

I knew those were people who love this country, that truly respect law enforcement, would never do anything to break the law, so I wasn’t concerned.

Johnson is now so offended that Americans objected to his blatant gaslighting about the January 6 insurrection that attempted to overturn the 2020 election that he has started a campaign to cast doubt on the events that have been thoroughly exposed through video taken by the proud, law-abiding, country-loving members of the mob.

He has posted a long list of tweets in which he purports to pose questions about January 6, suggesting that (1) the Capitol invaders were not armed (many were and he knows it), (2) the death of Capitol Police Officer Brian Sicknick somehow had nothing to do with the attack (he knows otherwise even though the precise cause of death has not been determined), (3) the damage was minimal (videos show otherwise and he knows it; in any case, even minimal damage would not be an excuse), (4) details of the violence are unknown (videos show it clearly, as he knows), (5) the exact extent to which the police were outnumbered and inadequately equipped (disclosed in detail already and he knows it).

His tweet list ends with “Still so many unanswered questions about January 6.”

Even for a Republican sycophant of such Trumpian commitment as Ron Johnson, this degree of gaslighting and what-about-ism is Herculean-level.

The blowback was, of course, fierce, in part because Johnson’s statements compared how he says he would have felt if the crowd had been composed of antifa and Black Lives Matter adherents. Many people took the comparison to be racist. Many people – everyone who’s not a racist understood Johnson’s racism.

Not satisfied with gold medal gaslighting, Johnson published a Commentary in the Wall Street Journal on March 15, claiming that “the left” had “twisted what I said.” The “left,” Johnson claimed, manipulated his words to deflect attention from the riots that broke out around the country in protest of the murder of George Floyd by police officers in Minneapolis, suggesting that they are equivalent to or worse than what happened in Washington on January 6. He posted videos that appear to show almost entirely young white people engaged in violent assaults on other white people and on buildings in Portland and elsewhere.

If you think those attacks, which I condemn unequivocally, are the same as the attempt to overturn the election for the office of President of the United States, you should stop reading now. The problems in Portland and elsewhere were indeed terrible and caused much damage to people who did not deserve it. Of course, there remain open questions about the role of police in stimulating those events and who was perpetrating most of the violence [studies indicate police actions were responsible for much of the violence; see, e.g., https://bit.ly/3r4FMWs] but set that aside for now. Those events were clearly inspired by the murder of George Floyd, and the many murders of unarmed Black and Brown people before him, by police. The rioting was not constructive, but it was emotionally reactive to undeniable events that the entire world saw and to which hundreds of thousands of people reacted in horror. We are fortunate, as someone observed, that Black people only want equal treatment by the law and by white people.

On the other hand the “evidence” of election fraud that animated the Capitol attack was entirely fictional. Even Trump’s own Department of Justice found no evidence of election-changing fraud and many of his devotees in Republican leadership agreed. But not all. The point is that the “excuse” for the Capitol attack is a complete fabrication, sold  by Trump and bought hook-line-and-sinker by the mob that Senator Johnson continues to extol.

I reject categorically Senator Johnson’s version of Make America Great Again. His list of grievances reads just like the Donald Trump playbook. Why wouldn’t it? Johnson is trying to appeal to the same white supremacist, racist segment of the population that, driven by ignorance and fear, devoted itself to Donald Trump and was primed and ready to accept whatever fantasy of grievance he manufactured for them.

Note, for example, how Johnson’s Wall Street Journal piece tries to minimize the January 6 attack: “Only about 800 people illegally entered the Capitol. Still fewer engaged in violent acts.” He justifies his resistance to “the left” on the grounds that they implied that all of the attackers were ““armed insurrectionists” determined to overthrow the government.”

If that was not their purpose, why were they there? What is the basis for the “only 800” entered the Capitol?

Johnson argues that the “rioters who burned Kenosha weren’t of any one ethnicity; they were united by their radical leftism” that he claims they also share with a “taste for violence.” Johnson is apparently unaware, or cynically indifferent, to the use of such claims as grounds for discrimination against Black people since long before the Civil War.

Then, in a bizarre act of twisted logic, Johnson attributes the boarding up of windows in major cities as based on fear of Biden’s supporters if he lost the election. The exact opposite is actually true, but Johnson wastes no time with evidence as he pivots quickly to a classic Trump-style attack on the media, whining about the  “censorship of conservative perspectives in today’s cancel culture” being  “antithetical to freedom.”

Here then is the nub: Republicans, led by people like Senators Johnson, Hawley, Cruz, Graham and others, claim that the phantasmagorical beliefs of Americans who have accepted the demonstrably false claims of election fraud as true are entitled to equal consideration. validation and acceptance simply because so many people believe them. But that is not how thinking and reasoning works. It is not the job of the media to simply accept massive gaslighting about important matters like elections just because a large number of people believe it.

If we accepted Ron Johnson’s concept of truth, i.e., a lot of people believe something, how would we deal with some of the most popular conspiracy theories among the general population. An Insider poll, https://bit.ly/3s2l6zJ, found that the two most popular conspiracy theories, each believed by 20% of respondents, were that extraterrestrials have come to earth, and an advanced technological society existed prior to the modern era. If the poll’s results are extrapolated to represent all of America, approximately 50 million adults would believe that aliens have made landfall on our planet. Another poll, reported in Scientific American, indicates that only 66 percent of millennials are clear that Earth is round (meaning a sphere, actually) and not flat. https://bit.ly/3sb9hY5 According to Ron Johnson, that would, by itself, validate those beliefs.

Meanwhile, also on Planet Earth, a dozen Republicans in Congress found multiple excuses to vote against the award of Congressional Gold Medals to the Capitol Police and D.C. police who defended them on January 6. https://wapo.st/316G9oR One such “excuse” was the reference to “insurrectionists” in the resolution. One said that the reference to “temple of our American democracy” in the resolution was “a little too sacrilegious for me.” Apparently that Congressman has never heard of Temple University. Other excuses were that the resolution was “politically convenient” for House Speaker Pelosi and was a “politically charged publicity stunt.” This from the party of law and order. While claiming to applaud the Capitol Police, the Republicans’ primary interest was in preventing adoption of a resolution that condemned the attack on the Capitol for what it plainly was.

With one exception (Massie), these twelve Republicans were among those who voted to overturn the election results on January 6. See Congressional Hall of Dishonor—Updated at https://bit.ly/3sby4uN

In short, these Republicans, with the silent approval of their party colleagues, will stop at nothing, even disrespecting the police who defended them, to gaslight the country about what happened on January 6. At the head of the pack is Senator Ron Johnson. Wisconsin, surely you can do better than this.

Indict & Arrest Trump — Charge with Sedition & Felony Murder

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Not surprisingly, Republican senators have already decided they have no interest in addressing the January 6 Trump-inspired attack on the U.S. Capitol in an effort to steal the election from Joe Biden. Most of them have voted that it is unconstitutional to entertain impeachment since Trump has left office. The English translation of this is that “impeachment ceases to be available unless it can be brought and tried before the president leaves office so anything he does, no matter how serious, in the closing weeks of his presidency, is immune.” More on that in a moment.

The Supreme Court appears to have added its imprimatur, without explanation or noted dissent, to the extraordinary proposition that violations of the emoluments clauses are also unavailable after a presidency ends even if suits were initiated during the presidency.

If all that is correct and it is also not lawful to indict the president for crimes during the presidency, as the Department of Justice has twice opined (wrongly, in my view), we have effectively overturned the balance of power created by the constitutional framers when they created the three branches of the federal government with separate counterbalancing powers. The imperial presidency, as declared by Trump (“I have an Article II, where I have to the right to do whatever I want as president”) has arrived.

If so, the country is in the most dangerous place since the period just before the Civil War. This raises the question of what the United States government should do if Trump’s supporters, emboldened by what they believe was a victory at the Capitol, return to attack the government again. I address this specifically at the end.

But first, as I write, the Republican leadership of the House and Senate are meeting with Trump in Mar-a-Lago. No one will ever know what they are discussing, but, given recent events and the continued obeisance of Republican legislators to Trump’s dominance, it is not outlandish to suggest that they are considering further steps to overthrow the government. Trump representatives, enablers and acolytes meanwhile are aggressively promoting false narratives that the violence on January 6 was led by “antifa” and other infiltrators and, despite overwhelming video and other evidence, Trump and his people are faultless.

Let’s begin with a short lesson in the applicable law.

“Sedition,” or more fully, “seditious conspiracy,” means,

If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to ,,, oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years or both. [18 USC 2384] [bolding mine]

As with most legal matters of import, this is more complicated than it first appears. As noted in https://criminal.findlaw.com/criminal-charges/sedition.html,

Simply advocating for the use of force … in most cases is protected as free speech under the First Amendment. For example, two or more people who give public speeches suggesting the need for a total revolution “by any means necessary” have not necessarily conspired to overthrow the government. Rather, they’re just sharing their opinions, however unsavory. But actively planning such an action (distributing guns, working out the logistics of an attack, actively opposing lawful authority, etc.) could be considered a seditious conspiracy. Ultimately, the goal is to prevent threats against the United States while protecting individuals’ First Amendment rights, which isn’t always such a clear distinction.

Of course, there are lawyers who will argue that nothing that happened at the January 6 Trump rally was outside the protection of the First Amendment. There are others who strongly disagree, me included. See https://bit.ly/39vCK80

The critical point here, in my view, is this: Donald Trump was not just another angry man voicing his grievances to a like-minded audience. If he were just that, the First Amendment would likely protect him. But, no,  Trump was President of the United States and still subject to the oath of office he took in 2017 to “faithfully execute the office of President of the United States, and … preserve, protect and defend the Constitution of the United States.”

Trump therefore had an affirmative duty to act to prevent and defend against any action that would interfere with the execution of Congress’s official constitutionally-mandated duty to validate and count the Electoral College votes. He also had an affirmative duty to protect federal property. He did not so act, and for that reason alone should lose any protection that might arguably arise from the First Amendment for his speech that preceded, for the most part, the January 6 attack. I say “preceded for the most part” because there is evidence that some of the assaulting force was already at the Capitol when Trump began speaking at noon.

Continuing with our over-brief summary of the law, “conspiracy” is also complicated but not terribly so:

A criminal conspiracy exists when two or more people agree to commit almost any unlawful act, then take some action toward its completion. The action taken need not itself be a crime, but it must indicate that those involved in the conspiracy knew of the plan and intended to break the law. A person may be convicted of conspiracy even if the actual crime was never committed ….

… an agreement may be implied from the circumstances…. [such as attending a meeting to plan the crime]

… individuals in the conspiracy must intend to agree, and all must intend to achieve the outcome.

… at least one co-conspirator [but only one] must take some concrete step in furtherance of the plan.

Finally, “felony murder” is chargeable when in the commission of a felony (which breaching the Capitol & attacking Capitol Police were) someone is killed, all of the felons are guilty of felony murder even if they had no specific role in the killing. Illustration: you and your buddy rob a bank. He goes in, you merely wait for him and drive the get-a-way car, he shoots and kills a bank teller. You are guilty of felony-murder.

Now to the known facts.

As reported at https://bit.ly/3rdBtJ,1 and elsewhere, the night before the January 6 attack on the U.S. Capitol, a private meeting assembled in Trump’s private residence at the Trump International Hotel in Washington. Reporting indicates that the following people attended the meeting:

Donald Trump Jr., eldest son of the president

Eric Trump, second-eldest son of the president

Michael Flynn, former National Security Advisor to the president

Peter Navarro, Assistant to the President, among other things

Corey Lewandowski, 2016 Trump campaign manager

David Bossie, 2016 Trump deputy campaign manager

Adam Piper, executive director of the Republican Attorneys General Association

Tommy Tuberville, United States senator from the State of Alabama

Rudy Giuliani, personal attorney to the President of the United States

Kimberly Guilfoyle, girlfriend of Donald Trump Jr

Michael Lindell, Trump donor and MyPillow CEO

Charles W. Herbster, National Chairman of the Agriculture and Rural Advisory Committee for the Trump administration

The meeting was confirmed in an attendee’s Facebook post late on January 5 that ends with “TRUMP WILL RETAIN THE PRESIDENCY!!!”

Senator Tuberville claims he was not at the Trump Hotel on January 5, but an Instagram photo of him at the hotel with two other people indicates otherwise. We can only wonder why the Senator would mislead about his presence.

To be clear, there is no report thus far that Donald Trump attended the meeting in person or by phone. Trump’s whereabouts that night would almost certainly have been noted by the White House media if he had been driven to his hotel. It beggars the imagination, however, to believe that this cast of characters was working independently of the president, given all the circumstances and what occurred the next day.

The primary report notes:

Not only does this meeting appear to confirm that Trump’s team helped orchestrate the events of January 6, but that it participated in the calibration of those events to exert maximum “pressure” on members of Congress in the midst of them executing a grave constitutional duty. Moreover, it participated in that calibration in the presence of a member of the United States Senate, who was therefore—we can now conclude, from the reporting of the Omaha World Herald—working in private with the president’s team to advise Trump on how to generate that maximum pressure on his Senate peers….

While we cannot know if these co-conspirators discussed the possibility of violence on January 6, that they contemplated the crime that most of the January 6 insurrectionists have now been charged with—Unlawfully Entering a Restricted Building—is all but certain, as is the fact that the purpose of such entries was to put improper pressure on government officials to reverse course on a government action.

In simpler terms, the purpose of the January 5 meeting at the Trump International Hotel in D.C. was arguably seditious conspiracy—as it appears to have been intended to promote and incite criminal acts by a mob whose purpose was to intimidate federal officials engaged in the certification of a democratically elected branch of government.

Much of the article cited above is speculation, but what seems clear is that many of Trump’s closest confidantes, including his attorney Giuliani, attended a meeting away from the White House for the apparent purpose of discussing how to pressure Congress in a last-ditch attempt to stop the election certification and award it to Trump. One attendee reportedly claims they were just there to watch the election returns come in from the Georgia senate runoffs. Believe what you wish about this.

The New York Times reported that the day before the rally,

“If you are not prepared to use force to defend civilization, then be prepared to accept barbarism,” a member of the Red-State Secession group on Facebook posted …

Beneath it, dozens of people posted comments that included photographs of the weaponry — including assault rifles — that they said they planned to bring to the rally. There were also comments referring to “occupying” the Capitol and forcing Congress to overturn the November election that Joseph R. Biden Jr. had won — and Mr. Trump had lost. [https://nyti.ms/3r4ZAJy]

Still earlier in January,

the extreme fringes of Trump supporters — including the Proud Boys and other groups known to incite violence, as well as conspiracy groups like QAnon — were exploring what they might do on Jan. 6 in Washington. On dedicated chats in Gab they discussed logistics of where to gather and what streets they would take to the Capitol. The Red-State Secession Facebook page even encouraged its 8,000 followers to share the addresses of “enemies,” including those for federal judges, members of Congress and well-known progressives.

At the rally on January 6, Donald Jr, preceding his father, flatly stated that the Republican Party was now “Donald Trump’s Republican Party,” the kind of claim that a banana-republic dictator would make, the meaning of which is “if Trump tells you to do something, you will do it.” The speech was replete with grievances against the Democratic leadership but also against “establishment Republicans” who were portrayed as weak and essentially traitors to the cause of “America First” and Trump’s own set of grievances.

The further events of January 6 are well-known. Video shows Trump urging the crowd to walk to the Capitol where he contended Congress was about to confirm the election he said was stolen. Among other remarks, Trump said:

“We will never give up,” he said. “We will never concede. It will never happen. You don’t concede when there’s theft involved. Our country has had enough. We will not take it anymore.”

He went so far as to say he would be with the crowd at the Capitol, but that was a lie. In any case, the crowd walked the mile-plus to the Capitol, confronted the grossly under-prepared Capitol Police, stormed the building through smashed windows and doors, screaming in rage that they could not find the members of Congress who had been moved to safe-rooms. The building was vandalized, a police officer was killed, and many were injured in a multi-hour battle against the vastly larger force of invaders. Others also died as a direct or indirect result of the attack. The Pentagon leadership working under Trump failed to send timely help.

Those events have inspired House Democrats to impeach Trump a second time. It’s the only “remedy” over which they have any real influence. Republicans, of course, overwhelmingly leapt to Trump’s defense, voting that the impeachment of a president after he leaves office is somehow unconstitutional. https://wapo.st/2YkPW9x Having refused to even hear evidence and witnesses at Trump’s first impeachment, the Republican Party completed its obeisance to Trump by essentially declaring that whatever he may have done, no sanction is justified. As a result, Democrats now are also considering a censure, a fallback proposed by Sen. Kaine of Virginia, because an impeachment trial will delay consideration of critical elements of President Biden’s plan to combat the COVID crisis.

A censure, even if adopted over Republican opposition that is certain to occur, will be nothing more than a slap on the wrist for a man who believes he is immune from the law. Republicans have every incentive to drag out the trial because, in addition to supporting Trump’s every act, they want to  impede Biden’s efforts to boost the economy and restore the health of the country.

I don’t doubt Senator Kaine’s sincerity in arguing that a censure resolution is “a potentially more politically palatable alternative to convicting Trump and barring him from future office” while also arguing that “his resolution would have much the same effect as a conviction, by condemning the former president and laying the foundation to keep him from returning to the presidency under the terms of the 14th Amendment.” Kaine argues further that “It’s more than just a censure, saying, ‘Hey, you did wrong’ ….It makes a factual finding under the precise language of the 14th Amendment that would likely put an obstacle in Donald Trump’s path if he were to run for office again.”

Kaine’s further argument is that “Just as the question of impeachment after you’ve left office is not ironclad one way or the other, this one is not ironclad, It leaves the door open for folks to make arguments down the road,”

That is, I think, plainly wrong because its premise is wrong.

The argument accepts that there is a legitimate constitutional objection to impeaching a president after he leaves office. The “immune after exit” position leaves open the possibility that in the closing days of a presidency, the president could engage in blatantly unlawful criminal activities and escape being called to account by impeachment. He could still be indicted and tried, but as a matter of principle, the position of no impeachment after office seems inconsistent with the framework established  by the Constitution — just stall long enough and escape an otherwise justified political accountability.

Impeachment, in any case, whether during or after the presidency, is insufficient to address the magnitude of the January 6 insurrection. While Republicans like John Cornyn of Texas are all so happy to “just move on” and “not live in the past,” claiming that impeachment now is “retroactively” punishing ex-officeholders,” even moderate Sen. Manchin of West Virginia understands the gravity of this situation which has no precedent in modern times. And, by the way, to Sen. Cornyn and others who subscribe to his view: all punishments, whether political like impeachment or criminal, are about past behavior. The notion that impeachment now is somehow wrong because it refers to past conduct is beyond moronic. And you can quote me on that.

So, where do we go from here? Political stalemate seems certain in Congress’ attempts to call Trump to account. The evidence of seditious conspiracy is, however, overwhelming. Do we let Trump skate? Do we ignore a blatant attempt to overturn the election and, in effect, declare Trump dictator? I think not.

Republican leadership in the House and Senate is now running away as fast as possible from early statements indicating grave concerns about Trump’s role in the insurrection at the Capitol. https://wapo.st/3a4Qd5G Both of them have rushed to Mar-a-Lago to meet privately with Trump. Why do you suppose they’re coordinating with him now? Why is House Minority Leader McCarthy now trying to place blame for January 6 on “all Americans” and other similar nonsense rhetoric? Why is McCarthy handing out choice committee assignments to QAnon conspiracy advocates like Rep. Marjorie Taylor Greene (R-Ga.), who has previously endorsed violence against Democratic leaders and who has claimed that the Parkland/Sandy Hook school massacres were staged along with the 9/11 attack and the January 6 assault as well? As noted in the article cited above,

For party leadership and top election strategists, video of protesters pummeling Capitol Police officers or chanting for the death of Vice President Mike Pence has proved less germane to current considerations than the potential to quickly return to power. They have been calling for more party comity, even with those holding extremist views.

Operating from Florida, Trump’s advisers have been encouraging party leaders to move on from impeachment and refrain from further criticism of the former president, even as they plot retribution against Republicans who opposed Trump’s final effort to overturn the election. Trump campaign advisers have commissioned and circulated to GOP lawmakers polling that shows him as still formidable in their states and made clear that he would seek revenge for votes against him.

The political reality is that the Senate is evenly divided between the parties, House Democrats have a small majority, and, despite Trump’s overwhelming defeat, Republicans gained governorships and control more than 60 percent of state legislatures. At least two Democratic senators are uncertain allies to aggressive positioning by their party.

WAPO reports that polling shows a staggering 79 percent of Republicans still approve of Trump’s conduct of the presidency and 57 percent saying the Republican Party should follow his leadership even after the attack on the Capitol. Some GOP party groups are embracing the fantasy claim that the January 6 attack was actually staged by Trump’s enemies. Some Republican Party strategists refer to the attack as “extremely unfortunate” and Republican National Committee Chairwoman Ronna McDaniel claimed that it was Democrats who were trying to “sow division and obstruct” while “Republicans will keep fighting for the American people.” If this were a TV show, it would be the Twilight Zone, but it’s the reality of where America now sits. The Republican Party really does belong to Trump and no longer adheres to fundamental democratic principles.

If you think I’m overstating it, WAPO reports that there is “speculation that the president’s daughter-in-law, Lara Trump, might run for the open North Carolina seat or that the president’s daughter Ivanka Trump might mount a primary challenge to Sen. Marco Rubio (R-Fla.).” A few Republican voices in the wilderness remain – Mitt Romney flat out said Trump “incited the insurrection” on January 6, — but their influence against the Trump Red Tide is limited at best.

While the Republicans continue to focus only on their political prospects going forward and how to align themselves with Trump’s base, evidence continues to mount that the January 6 attack was not just a spontaneous response to Trump’s words. The Washington Post, for example, reports that so-called militias in three states beginning planning to challenge the election by force in November. https://wapo.st/39pblEB US prosecutors have asserted,

Three self-styled militia members charged in the Jan. 6 breach of the U.S. Capitol began soliciting recruits for potential violence within days of the 2020 presidential election, later training in Ohio and North Carolina and organizing travel to Washington with a busload of comrades and a truck of weapons….

The report is quite detailed with communications among the parties charged as conspirators. Many other reports show that multiple January 6 participants are being charged with federal crimes of varying severity, depending on what the preliminary evidence shows they actually did at the scene of the invasion. It is reasonable to expect many more arrests as prosecutors work through the videos, recordings and social media posts of participants. The New York Times published an article with multiple videos revealing parts of the fight between police and the insurrectionists screaming “I will f*cking kill you!” https://nyti.ms/3ahHP2P That is what the Republican Party is defending.

The Acting Chief of Capitol Police is so concerned about the continuing threat to the Capitol that she is recommending permanent emplacement of unscalable fencing, possibly topped with barbed wire, around the perimeter. Mayor Bowser, thankfully, is opposed but consider what this means for the state of the nation’s politics.

So, where do we go from here?

After long reflection, my view is that nothing short of the indictment and arrest of Donald Trump can adequately begin to redress the harm done to the country. We are on the precipice of the collapse of the rule of law. Washington, DC remains an armed camp protected by thousands of National Guard due to reports of further armed attacks on the government. Failing to bring real and serious criminal charges against Trump will be seen by his acolytes as further proof that he was the victim of multiple hoaxes and a fraudulent election, despite the overwhelming evidence to the contrary. Postponing the day of reckoning while Trump reorganizes his political forces is a recipe for catastrophe from which the country may not recover. The time to deal with this is now, when the evidence is fresh and the focus is clear.

There can be no rational doubt that Trump summoned the mob to come to DC for the pre-insurrection rally, that his words called for the mob to go to the Capitol for the purpose of stopping the Electoral College vote count, that there was almost certainly planning activity in advance, not only by mob participants but by members of Trump’s inner circle of family and other advisors. People died during the attack, an outcome entirely foreseeable. The case for seditious conspiracy and felony murder is compelling.

Political accountability through impeachment will accomplish nothing of substance. Criminal liability, on the other hand, while facing a higher standard of proof, will  bring the evidence before a carefully selected jury of Americans. If they decide that Trump is not guilty, so be it. There will, at least, be no basis for complaint that political vendettas were being accomplished. The far greater likelihood is that a properly presented case against Trump will lead to his conviction.

If it were up to me, I would include in the indictment charges related to Trump’s obstruction of justice in the Mueller investigation, including perjury, and likely also the incident in which Trump attempted to leverage Ukraine’s president to interfere in the U.S. election. It is time, in other words, to call the question on Trump’s claim that he is above the law. If this fails, our democracy may well be doomed, as conspiracy theorists like MJ Greene, Lauren Boebert and other Republican fantasists remain in power in subservience to Donald Trump who, elected or not, will become de facto dictator as long as he lives.

No doubt, the bringing of criminal charges will further enrage Trump’s already deranged supporters. If they decide to attack the Capitol, no amount of fencing and barbed wire will stop them. The government must be prepared to make the most aggressive response, including overwhelming deadly force against those who seek to bring down the government by violent assault. This conflict cannot be resolved by negotiation, and it is virtually certain Trump will continue to assert his false grievances to a willing audience of true believers. If so, the nation has no choice, in fact has a solemn duty, to defend itself and its democracy with every means at its disposal.

 

 

 

Congressional Hall of Dishonor – Updated

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Members of the Sedition Caucus, you are named here because you voted to overturn the 2020 presidential election by rejecting the vote of the Electoral College on January 6, 2021, in violation of your oath of office and the Constitution.

Some of you backed out at the last moment after the man whose election loss you sought to overturn inspired a mob of angry, violent supporters to attack the Capitol. You embraced the Trump con game until expediency drove you to either vote to support the Electoral College results or to abstain from voting. The same is true for those who said they would vote to uphold the results “unless strong/overwhelming or whatever evidence is presented during the debate.” You are just as complicit as those who stood their ground, however ill-conceived it was. So, you are included here under Dishonorable Mention.

You violated your solemn oaths of office and placed the desires of a deranged aspiring dictator ahead of the will of the people as expressed by their votes. This action to undermine American democracy will not be forgotten or forgiven.

Senators

  • Ted Cruz –Texas
  • Josh Hawley – Missouri
  • Cindy Hyde-Smith – Mississippi
  • John Kennedy – Louisiana
  • Cynthia Lummis – Wyoming
  • Roger Marshall – Kansas
  • Rick Scott – Florida
  • Tommy Tuberville – Alabama

NOTE: Four of the above Senators (Cruz, Hawley, Scott & Tuberville) voted against the nomination of Janet Yellen for Secretary of the Treasury. They were joined by:

Barrasso (R-WY)
Blackburn (R-TN)
Boozman (R-AR)
Cotton (R-AR)
Cramer (R-ND)
Hoeven (R-ND)
Lee (R-UT)
Paul (R-KY)
Risch (R-ID)
Shelby (R-AL)
Sullivan (R-AK)
With his usual courage, Senator Rubio (R-FL) did not vote on the Yellen nomination
 

Representatives (Updated to Add)

Griffith, Guest & Hagedorn

  • Robert B. Aderholt AL
  • Rick Allen GA
  • Jodey Arrington TX
  • Brian Babin TX
  • Jim Baird IN
  • Jim Banks IN
  • Cliff Bentz OR
  • Jack Bergman MI
  • Stephanie Bice OK
  • Andy Biggs AZ
  • Dan Bishop NC
  • Lauren Boebert CO
  • Mike Bost IL
  • Mo Brooks –AL
  • Ted Budd NC
  • Tim Burchett TN
  • Michael C. Burgess TX
  • Ken Calvert CA
  • Kat Cammack FL
  • Jerry Carl AL
  • Earl L. “Buddy” Carter GA
  • John Carter TX
  • Madison Cawthorn NC
  • Steve Chabot OH
  • Ben Cline VA
  • Michael Cloud TX
  • Andrew Clyde GA
  • Tom Cole OK
  • Eric A. “Rick” Crawford AR
  • Warren Davidson OH
  • Scott DesJarlais TN
  • Mario Diaz-Balart FL
  • Byron Donalds FL
  • Jeff Duncan SC
  • Neal Dunn FL
  • Ron Estes KS
  • Pat Fallon TX
  • Michelle Fischbach MN
  • Scott Fitzgerald WI
  • Charles J. “Chuck” Fleischmann TN
  • Virginia Foxx NC
  • Scott Franklin FL
  • Russ Fulcher ID
  • Matt Gaetz FL
  • Mike Garcia CA
  • Bob Gibbs OH
  • Carlos Gimenez FL
  • Louie Gohmert TX
  • Bob Good VA
  • Lance Gooden TX
  • Paul A. Gosar AZ
  • Garret Graves LA
  • Sam Graves MO
  • Mark Green TN
  • Marjorie Taylor Greene GA
  • Griffith VA
  • Guest MS
  • Hagedorn MN
  • Andy Harris MD
  • Diana Harshbarger TN
  • Vicky Hartzler MO
  • Kevin Hern OK
  • Yvette Herrell NM
  • Jody Hice GA
  • Clay Higgins LA
  • Richard Hudson NC
  • Darrell Issa CA
  • Ronny Jackson T
  • Chris Jacobs NY
  • Mike Johnson LA
  • Bill Johnson OH
  • Jim Jordan OH
  • John Joyce PA
  • Fred Keller PA
  • Trent Kelly MS
  • Mike Kelly PA
  • David Kustoff TN
  • Doug LaMalfa CA
  • Doug Lamborn CO
  • Jake LaTurner KS
  • Debbie Lesko AZ
  • Billy Long MO
  • Barry Loudermilk GA
  • Frank D. Lucas OK
  • Blaine Luetkemeyer MO
  • Nicole Malliotakis NY
  • Tracey Mann KS
  • Brian Mast FL
  • Kevin McCarthy CA
  • Lisa McClain MI
  • Dan Meuser PA
  • Mary Miller IL
  • Carol Miller WV
  • Alex Mooney WV
  • Barry Moore AL
  • Markwayne Mullin OK
  • Gregory Murphy NC
  • Troy Nehls TX
  • Ralph Norman SC
  • Devin Nunes CA
  • Jay Obernolte CA
  • Burgess Owens UT
  • Steven M. Palazzo MS
  • Gary Palmer AL
  • Greg Pence IN
  • Scott Perry PA
  • August Pfluger TX
  • Bill Posey FL
  • Guy Reschenthaler PA
  • Tom Rice SC
  • Mike D. Rogers AL
  • Harold Rogers KY
  • John Rose TN
  • Matt Rosendale MT
  • David Rouzer NC
  • John Rutherford FL
  • Steve Scalise LA
  • David Schweikert AZ
  • Pete Sessions TX
  • Jason T. Smith MO
  • Adrian Smith NE
  • Lloyd Smucker PA
  • Elise Stefanik NY
  • Greg Steube FL
  • Chris Stewart UT
  • Glenn Thompson PA
  • Tom Tiffany WI
  • William Timmons SC
  • Jeff Van Drew NJ
  • Beth Van Duyne TX
  • Tim Walberg MI
  • Jackie Walorski IN
  • Randy Weber TX
  • Daniel Webster FL
  • Roger Williams TX
  • Joe Wilson SC
  • Rob Wittman VA
  • Ron Wright TX
  • Lee Zeldin NY

 

What to My Wondering Eyes Did Appear …

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You likely recognize my slight modification of the iconic line from the poem, The Night Before Christmas, a/k/a, A Visit From St. Nicholas. It came instantly and unbidden to mind upon reading today’s Washington Post report entitled, Justice Department, FBI debate not charging some of the Capitol rioters. https://wapo.st/2KGv2hM

No, I am not making this up. The story was written by two highly accomplished reporters: Devlin Barrett and Spencer Hsu. As astounding and gut-wrenching as the story is, I take it for true.

The prosecutors’ discussions are assertedly based on a number of key ideas:

  1. About 800 people (+/- 100) entered the Capitol unlawfully; bringing so many cases could overload the local court;

Objection: The message from such nonsense is: “if you’re going to be part of an illegal mob action, be sure it’s a big one.” Is that really the message the FBI/DOJ want to send here?

  1. Some insurrectionists may only be guilty of “unlawful entry,” not having engaged in “violent, threatening or destructive behavior” – they merely went along with the crowd;

Objection: The perpetrators were not mere bystanders to a large-scale criminal event. They were active participants. “I just went along with the crowd that killed people and stole property” has never been a defense; why now? How do you discourage such conduct in the future if you decide to look the other way for most of the people involved?

  1. “The primary objective for authorities is to determine which individuals, if any, planned, orchestrated or directed the violence” – people who “planned and carried out violence aimed at the government” may face charges of seditious conspiracy, carrying a maximum penalty of 20 years in prison;

Hint for FBI/DOJ: good; go big with the charges for the planners; by the way, there is substantial provable evidence that the individual who orchestrated the violence was the president, Donald J Trump. Indict him.

  1. “…investigators are still gathering evidence, and agents could easily turn up additional photos or online postings that show a person they initially believed was harmless had, in fact, encouraged or engaged in other crimes.”

Another Hint for FBI/DOJ: What?? Harmless??? It is impossible to conclude rationally that any person who entered the Capitol with the mob on Jan. 6 was “harmless.” The harm began with the attack on the defending police force and continued unabated for hours. Those who entered knew they weren’t supposed to be there, saw the violence directed at the small police contingent in place to defend the Capitol and, based on extensive video, did nothing to try to stop the entry/violence that was perpetrated by the mob of which they were a part, even if they did not all directly engage in violence against the police, the building or its contents. Sacking the Capitol cannot be harmless.

  1. Some people may have done nothing but enter, look around and leave. If the only charge is unlawful entry, prosecutors might lose some cases. The exact quote in the story was: ““If an old man says all he did was walk in and no one tried to stop him, and he walked out and no one tried to stop him, and that’s all we know about what he did, that’s a case we may not win,”

Objection: So what? Irrelevant. Prosecutors are seriously concerning themselves with the remote possibility that a handful of the invaders said “whoopsie, this has gotten out of hand; think I’ll just wander on outside and watch the fun from there?” Every prosecutor, every trial lawyer, has lost some cases. It’s not a shame; happens to the best of them once in a while. Losing should be the last thing FBI/DOJ are concerned about here.

  6.  Most of the arrestees have no prior criminal records;

Objection: Utterly irrelevant; for every criminal, there is a first time. A first-time murderer is no less a murderer because he’s not murdered before. If this has any bearing, it’s at sentencing, but surely is not a factor in deciding whether to prosecute. Surely.

  1. “…defense lawyers … are contemplating something akin to a “Trump defense” — that the president or other authority figures gave them permission or invited them to commit an otherwise illegal act.”

Yet Another Hint to FBI/DOJ: this “defense” gets a good grade for clever and bold, but it’s wrong and thus no cigar. This is the point at which I seriously consider screaming obscenities. The president lacked authority to give anyone legally effective permission to force their way into the Capitol to interfere with the scheduled work of Congress. Being delusional may get you a reduced sentence, maybe, but it cannot and should not insulate you from self-evidently unlawful conduct. Believing the unbelievable (the election was stolen –Trump said so) is no excuse.

  1. In a remarkable double/triple entendre, or something, the argument is noted that Trump’s impending impeachment trial will “raise questions about the culpability of followers for the misinformation spread by leaders around bogus election-fraud claims rejected by courts and state voting officials.” Further,

“It’s not a like a bunch of people gathered on their own and decided to do this, it’s not like a mob. It’s people who were asked to come by the president, encouraged to come by the president, and encouraged to do what they did by the president and a number of others,” said one attorney representing defendants charged in the breach who spoke on the condition of anonymity to discuss legal strategy.”

Objection: – this is the “I was too stupid to know how stupid I was…” defense. Or the “my president made me do it” defense. It speaks for itself, which is what lawyers say when they don’t know what to say. Defense lawyers may try this, which is their right, but this is not the basis for prosecutorial deference. If anything, it should inspire more aggression on the part of prosecutors.

  1. “For rioters with no previous criminal records or convictions and whose known behavior inside the Capitol was not violent or destructive, the government could enter into deferred plea agreements, a diversion program akin to pretrial probation in which prosecutors agree to drop charges if a defendant commits no offenses over a certain time period.”

Another Note: the article says this tactic “has been used before in some cases involving individuals with a history of mental illness who were arrested for jumping the White House fence. Criminal defense attorneys note there may be further distinctions between individuals who may have witnessed illegal activity or otherwise had reason to know they were entering a restricted area, and those for whom prosecutors can’t show such awareness.”

Objection: This is just a variant of “I didn’t know breaking into the Capitol with a raging, screaming mob breaking windows and attacking police was illegal.” It is, I suggest, preposterous even for Trump true-believers. It’s like the “Martians made me do it” defense deeply felt perhaps but just plain wrong. We cannot have a society in which people get away with crimes because they say they’re too ignorant to know what is right and wrong. Plead insanity if you think you can establish it, but this, again, is not a ground for prosecutors to lay off.

I close this part of the post with this final quote from the story:

“There is absolute resolve from the Department of Justice to hold all who intentionally engaged in criminal acts at the Capitol accountable,” Justice Department spokesman Marc Raimondi said in an email. “We have consistently made clear that we will follow the facts and evidence and charge individuals accordingly. We remain confident that the U.S. District Court for Washington, DC can appropriately handle the docket related to any resulting charges.”

We must certainly hope that Mr. Raimondi’s declaration is correct. This may be the most appalling story I have read about the justice system — ever.

I cannot get my mind around the idea that (1) the president of the United States calls a mob of supporters to Washington and, along with some family members and attorneys, urges the crowd to “walk down to the Capitol” (lying about his intention to join them), (2) for the avowed purpose of preventing final Congressional certification of the presidential election the president clearly lost AND (3) the people who follow his suggestion take the walk (over a mile, plenty of time to think about what they’re doing), (4) assault the Capitol police, (5)  join the mob forcing its way into the building through smashed windows/doors, (6) are present during multiple melees throughout the building including attacks on police, and (7) are allowed to simply walk out without impediment — are being considered for leniency by prosecutors.

Have we lost our collective minds? Is this the lingering product of Trump’s undermining of the Department of Justice? Let these people walk and they will just go home, laughing all the way. What happened to respect for law, never mind “law and order?” This was an insurrection against the government of the United States. People died. A police officer attacked by the mob died. Why aren’t “felony murder” charges appropriate (participation in the commission of a felony, where a death occurs during that felony, even if the defendant wasn’t the one who killed the victim)? Why isn’t felony murder being discussed? What is going on here?