Category Archives: Law

Acceptable Losses – How Many?

Acceptable Losses — a military euphemism for casualties or destruction inflicted by the enemy that are considered minor or tolerable.

That is where we are. Supported by the money from the National Rifle Association, the Republican Party has decided that the losses of hundreds of children at the hands of gun-wielding men with grievances is acceptable. It has happened again – this time in Texas. So far, 19 dead children and two dead teachers. So far.

This year – 27 school shootings. https://n.pr/3MPgqaS But it’s only May. Plenty of time to slaughter more kids. Thoughts and prayers. The NRA/Republican Party mantra – thoughts and prayers – but our guns, come and take ‘em. Just try. Nineteen dead children – acceptable losses.

The Gun Violence Archive, an independent data collection organization, has counted 212 mass shootings that have occurred so far this year…. It defines a mass shooting as an incident in which four or more people were shot or killed, excluding the shooter.

Data on the mass shootings that have occurred so far this year can be found here.

The U.S. ended 2021 with 693 mass shootings, per the Gun Violence Archive. The year before saw 611. And 2019 had 417.

That’s the trend. A few weeks ago, another shooter killed ten people in a supermarket. The most “civilized/advanced country in the world,” we like to say, has more mass shootings, more children slaughtered by guns than any other country in the entire world.

How many would be enough? One hundred? A thousand? Think of it. A thousand dead children at the hands of angry men with guns. Would that be enough to move Republicans to moral action? How many? When do acceptable losses become unacceptable? Five thousand?

The ritualistic political reactions have, of course, already begun. Republican politicians holding press conferences, tweeting “thoughts and prayers.” I wonder what those “thoughts” actually are. And “prayers?  They comfort some people, I suppose. I wonder, though, if politicians’ prayers will comfort a parent or sibling devastated by yet another preventable massacre. It all seems just like ritual at this point.

Angry kid buys guns and slaughters helpless children in school. Police and others rush to the scene, usually killing the gunman. It’s always a gun man. But it’s always too late. The dead kids pile up and the Republican politicians head for the microphones to repeat the ritual. Thoughts and prayers. But no action.

I read now that Democratic political leaders are going to try yet again to negotiate some gun law improvements, anything at all that Republicans might accept. https://wapo.st/3NEE3CH But the past is almost certainly prologue. There is no reason at all to think Republican politicians will agree to anything meaningful. And if that’s true, the only point is to show the public, yet again, who the politicians are that resist all efforts to stop the massacres. Will it matter?

Consider that Republicans in Georgia have renominated Marjorie Taylor Greene to occupy a seat in the House of Representatives. The same one who embraced QAnon conspiracy theories and now said about the Texas massacre that the solution is to “embrace God.” Ritual. She really means, do nothing. Pray for help that will not come.

Consider that Republican voters in Georgia nominated Herschel Walker, a former football player, to occupy one of the 100 Senate seats. Walker seems to have trouble stringing two coherent sentences together. Republicans want him to represent them in the Senate, where he will be expected to think about and vote on complex budget and international policy issues, among many other subjects about which he has zero experience and likely even less knowledge.

Walker is running to displace the sitting Senator Raphael Warnock. Reverend Warnock grew up in public housing in Savannah. His mother grew up in Waycross where she spent summers picking tobacco and cotton. The Senator graduated from Morehouse College, earned a PhD, and was ordained in the ministry. For over 15 years, Senator Warnock has served as Senior Pastor at Ebenezer Baptist Church in Atlanta, the former pulpit of Reverend Dr. Martin Luther King, Jr. He is an exceptional orator and the youngest pastor selected to serve in that leadership role at the historic church.

Consider that multiple leading Republican politicians are going to attend the National Rifle Association conference in Houston this weekend. There they will engage in the ritual obeisance to the God of Guns and Ammo that funnels campaign contributions to willing recipients completely ready to do vote for the NRA’s agenda: keep the guns and to Hell with the children.

Yes, the ritual will go on. And on. Until the American public finally says: ENOUGH! There is no reason to think we’re there now. I would, of course, love to be wrong about that, but the rational part of my mind says, don’t be a fool. Republican politicians across the country have continued to embrace Donald Trump’s Big Lie about the 2020 election. Republican voters for the most part are fine with the fantasy. Is there any reason to think such people are going to care about a bunch of children they don’t know? Not very likely.

So, what to do? Complaining isn’t going to change anything. Only voting will. Along with many others, I have continued to note that “we” outnumber “them” by a substantial margin. Yet the future of the country literally depends on an issue on which the nation’s record is far from reassuring. It’s all about turnout. Will enough people who understand what is at stake actually vote in the next elections? Or will the Republicans regain control of one or both Houses of Congress and end, once and for all, any chance of protecting and advancing democracy in America? That is literally what is at stake. Because as sure as you are reading this, nothing is going to change until the supporters of violence against children are removed from office. Nothing.

Democrats could, of course, accomplish a lot by removing the filibuster. But they won’t. They’re apparently concerned about what would happen if Republicans get control of Congress. But if Republicans get control (more than they already have now), they will exercise their power mercilessly. It’s time to act while action is possible.

Be afraid. Be very afraid. Democracy is under challenge around the globe. It will not save itself. Imagine what your life and the lives of your children and grandchildren will be like under a Republican managed government. Imagine.

Justice Alito’s Masquerade

A not-so-hypothetical state law of the near future:

“It is the policy and law of the state of [Gilead aka Any Republican-Controlled State] that the purpose of females in society is to serve the interests of males in all matters. Therefore, the legislature hereby declares:

    • The crime of rape in which a male forces a female, by violence, intimidation or otherwise, to engage in sexual intercourse is abolished;
    • Any female forced to engage in sexual intercourse as stated in section (1), must, if impregnated, take every measure to assure to the maximum extent medically possible that the child thus created be born alive, regardless of the circumstances of its conception or any medical issues involving its birth, survival, or future existence;
    • Any female who fails to comply with section (2) hereof shall be guilty of the felony of murder in the first degree and shall be punished by death.
    • Any female convicted under section (3) hereof shall submit to such medical tests as are necessary to determine paternity and shall forfeit all her property rights to the male who impregnated her.”

Seems insane, I know, but given the theocratic posturing of Republicans and their insistence on a society in which women’s rights are subordinated to those of men, it is not beyond imagining that the removal of constitutional protections for abortions will lead to state statutes similar in substance to the one set out above. In fact, multiple Republican-controlled states have already enacted severe restrictions on abortions with no exceptions for rape and incest.

In a recent post I raised some serious ethical concerns about the relationship between Supreme Court Justice Clarence Thomas and his wife’s involvement in efforts to overturn the 2020 election. I mentioned some issues related to Justice Alito’s November 12, 2020, speech before the Federalist Society, the far-right organization whose vetting and approval is essential for appointment of judges that Republicans in the Senate support. A rough transcript of the Alito speech can be seen at https://otter.ai/u/ezh-387rQb7p7Yq87udbMb4Eovk if you have the stomach for it.

In light of Alito’s remarks, just over a year ago, it was no surprise that he had authored the majority Supreme Court opinion that was leaked to and reported by Politico. https://politi.co/3s96yA6

Alito opened his Federalist Society speech with an homage to the role of the Society as a bastion of free speech, open dialogue with, he claimed, no political or other agenda, ignoring, among other things, the role it plays in vetting conservative candidates for judgeships, including on the Supreme Court. Keeping with his theme of what he was not speaking about, Alito noted the “previously unimaginable restrictions on individual liberty” that arose during the pandemic but insisted,

I am not saying or even implying, I am not diminishing the severity of the viruses threat to public health. And putting aside what I will say shortly about a few Supreme Court cases, I’m not saying anything about the legality of COVID restrictions. Nor am I saying anything about whether any of these restrictions represent good public policy. I’m a judge, not a policymaker.

Then,

All that i’m saying is this. And I think it is an indisputable statement of fact, we have never before seen restrictions as severe, extensive and prolonged as those experienced, for most of 2020. Think of all the live events that would otherwise be protected by the right to freedom of speech, live speeches, conferences, lectures, meetings, think of worship services, churches closed on Easter Sunday, synagogues closed for Passover on Yom Kippur War. Think about access to the courts, or the constitutional right to a speedy trial. trials in federal courts have virtually disappeared in many places who could have imagined that

Alito continued –

the COVID crisis … has highlighted disturbing trends that were already present before the virus struck. One of these is the dominance of lawmaking by executive Fiat rather than legislation. The vision of early 20th century progressives and the new dealers of the 1930s was the policymaking would shift from narrow minded elected legislators, to an elite group of appointed experts in a word, the policymaking would become more scientific. That dream has been realized to a large extent. Every year administrative agencies acting under broad delegations of authority churn out huge volumes of regulations that dwarfs the statutes enacted by the people’s elected representatives. And what have we seen in the pandemic sweeping restrictions imposed for the most part, under statutes that confer enormous executive discretion?

We had a covid related case from Nevada. So I will take the Nevada law as an example. Under that law, if the governor finds that there is, quote, a natural technological or manmade emergency, or disaster of major proportions, the governor can perform and exercise such functions, powers and duties as are necessary to promote and secure the safety and protection of the civilian population. To say that this provision confers broad discretion would be an understatement.

Now, again, let me be clear, I’m not disputing that broad wording may be appropriate in statutes designed to address a wide range of emergencies, the nature of which may be hard to anticipate, and I’m not passing judgment on this particular issue. statute,

I want to make two different points. First, what we see in this statute, and what was done under it is a particularly developed example of where the law in general has been going for some time, in the direction of government by executive officials, who were thought to implement policies based on expertise. And in the purest form, scientific expertise.

Second, laws giving an official so much discretion can of course, be abused. And whatever one may think about the COVID restrictions, we surely don’t want them to become a recurring feature after the pandemic has passed. All sorts of things can be called an emergency or disaster of major proportions. Simply slapping on that label cannot provide the ground for abrogating our most fundamental rights. And whenever fundamental rights are restricted, the Supreme Court and other courts cannot close their eyes.

When I read that, my first reaction was that a politician like Ted Cruz was speaking, making a classic right-wing anti-deep state conspiracy claim. The speech reads like a game of “which cup is the pea under,” with Alito repeatedly disclaiming the intention to make the very points he was making.

Alito next attacked the leading precedent for the constitutionality of public health measures, Jacobson v Massachusetts, 197 U.S. 11, decided in 1905. He started with a judge joke that would appeal to the ultra-conservative audience:

The case concerned an outbreak of smallpox in Cambridge, and the Court upheld the constitutionality of an ordinance that required vaccinations to prevent the disease from spreading. Now I’m all in favor of preventing dangerous things from issuing out of Cambridge and infecting the rest of the country and the world. It would be good if what originates in Cambridge stayed in Cambridge.

Almost as if signaling the lawyers waiting to challenge the national health policy regarding COVID, Justice Alito offered up multiple grounds for limiting and distinguishing Jacobson in the future and segued into a discussion of “religious liberty” with the observation that,

It pains me to say this, but in certain quarters, religious liberty is fast becoming a disfavored right. And that marks a surprising turn of events.

Noting that a Supreme Court decision in 1990 (Employment Division v. Smith, 494 U.S. 872) had “cut back sharply on the protection provided by the Free Exercise Clause of the First Amendment,” Alito noted that Congress promptly passed, and President Clinton signed, the Religious Freedom Restoration Act with nearly unanimous support.  But, according to Alito,

today that widespread support has vanished. When states have considered or gone ahead and adopted their own versions … [t]hey have been threatened with punishing economic boycotts.

Some of our cases illustrate this same trend.

Note that the majority opinion in Employment Division was authored by none other than Antonin Scalia, the leading icon of the conservative judiciary and originalist thinking on the Supreme Court (the Constitution must be interpreted according to its “public meaning” in the late 18th century). Scalia wrote:

We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition….

Respondents urge us to hold, quite simply, that when otherwise prohibitable conduct is accompanied by religious convictions, not only the convictions but the conduct itself must be free from governmental regulation. We have never held that, and decline to do so now.

This precedent, apparently, was a bridge too far for Alito who appears to believe that the assertion of any religious grounds for conduct exempts that conduct from state regulation. The mind boggles.

His speech then launched into a protracted series of complaints about the Supreme Court’s treatment of religiously motivated “good works,” even if, and perhaps especially if, they lead to discriminatory treatment of people outside the penumbra of a particular religious belief. Such belief, Alito appears to believe, despite all the denials, is by itself a sufficient basis to permit denial of services to others not committed to the same ideas.

For many today, religious liberty is not a cherished freedom. It’s often just an excuse for bigotry, and it can’t be tolerated, even when there is no evidence that anybody has been harmed….

The question we face is whether our society will be inclusive enough to tolerate people with unpopular religious beliefs.

Alito likened the trend he perceived to the treatment of Germany and Japan after 1945: “It’s not dark yet, but it’s getting there.”

Alito reviewed with disdain the Supreme Court’s treatment of the COVID pandemic, arguing that deferring to state governors on public health grounds led, in Nevada, to opening the casinos and,

“So if you go to Nevada, you can gamble, drink and attend all sorts of shows…. But here’s what you can’t do. If you want to worship and you’re the 51st person in line, sorry, you are out of luck. houses of worship are limited to 50 attendees.”

And on and on.

Since I am now at risk of writing a critique as long as the original speech (almost 5,000 words), I will cut this short. Suffice to say that the tone of Alito’s remarks was consistent with the tenor of the draft opinion released by Politico. And while Alito initially focused on religious freedom, he also complained that “Support for freedom of speech is also in danger.” His main reference there was to “things you can’t say if you’re a student or professor at a college or university or an employee of many big corporations.”

He also specifically complained that the Supreme Court’s decision on same-sex marriage had led to claims of bigotry against people who continued to assert that marriage was the union between, and only between, one man and one woman. Repeating “old beliefs” in public was predicted to lead to accusations of bigotry, just as Alito and other dissenters had expected.

Alito was clearly playing to the prejudices and fears of the arch-conservatives in the Federalist Society. He complained about attempts of individual senators to influence the Court’s decision-making, labeling a brief a group of them filed as an attempt to influence it by means other than legal argument and referencing another country where tanks were brought to bear against a high court in another country.

Following a likely-obligatory shout out to Scalia again, Alito ended his tirade with this signal [corrected for obvious transcription issues]:

… in the end, there is only so much that the judiciary can do to preserve our Constitution, and the Liberty it was adopted to protect. As Learned Hand famously wrote, Liberty lies in the hearts of men and women. When it dies there, no constitution, no law, no court can do much to help it. For all Americans, standing up for our constitution and our freedom is work that lies ahead. It will not be easy work.

Taken as a whole, this, speech resembles the work of politics, not law.  It is an ultra-conservative judge speaking to an ultra-conservative political body and, in words more elegant than those typically used by Donald Trump, warning them that their religious liberty and other “rights” are at risk from liberals bent on helping “others” and placing their needs ahead of those of “true Americans.” It appears now that with Alito’s draft opinion in circulation, the ultra-right is on their chosen path to having the state control the lives of females who comprise about half of all Americans. Welcome to Gilead.

I will have more to say about the irreconcilable paradox of Republican conservative politics in the next post. For now, it is sufficient to observe that the idea of lifetime appointments has been fatally undermined. No country, certainly not this one, can withstand the theocratic authoritarianism that has infected the Supreme Court under the phony guise of “religious liberty.”

Is Twitter the Next Republican Echo Chamber?

Social media are awash in problematic and near hysterical responses to the announcement that Elon Musk is cleared to buy Twitter. Having paid little attention to Musk, I have nothing useful to say about the acquisition as such.

I am, however, interested in the assertion that Musk is a “free speech absolutist” and that he will, therefore, apply that principle to his management of Twitter with dire consequences. Many observers believe this means Trump’s Twitter account will be restored, with predictable results. Trump himself reportedly says he won’t rejoin Twitter but anyone who has been mentally functioning for the past five years knows Trump’s word is meaningless. Meanwhile, people like Trump’s children have remained on Twitter all along, promoting their schemes, lying and all the rest. Is the furor just about Trump?

In any case what does “free speech absolutist” mean? Yesterday, Musk tweeted this:

By “free speech”, I simply mean that which matches the law. I am against censorship that goes far beyond the law. If people want less free speech, they will ask government to pass laws to that effect. Therefore, going beyond the law is contrary to the will of the people.

Putting aside the logical issues with those sentences, if Musk really means that free speech must “match the law,” there would be little to worry about. Summarized, the law is that speech that is, for example, in furtherance of a criminal conspiracy or that is demonstrably false and harmful may be regulated, not only by private entities but by the government itself. The classic example is shouting fire in a crowded and darkened theater. Such “speech” is dangerous, and the speaker may be held to account for it. Similarly, solicitation of a crime combined with actual steps toward executing the crime may be prosecuted. Speech that is normally covered by, for example, attorney-client privilege that prevents compulsory disclosure loses its privileged status if, for example, the attorney-client communication is part of a criminal enterprise.

If, on the other hand, Musk means that going forward Twitter will not discipline participants and will depend entirely on the government to do so, we will have an example of the most cynical form of disinformation in history. Why? Because Musk knows that the government is not going to undertake direct regulation of social media platforms like Twitter and claiming to depend on “the law” to do so is the height of cynical misdirection.

Mr. Musk may, on the other hand, actually believe that speech is absolute in its “freedom,” so that, for example, Donald Trump should be free to claim in Future Twitter that the 2020 election was stolen and that no consequences should attach to such false claims. Maybe.

I don’t know for sure what Musk actually thinks. Twitter participants appear to be dropping out in large numbers over fear that Musk will turn Twitter into a platform for free-form lying by right-wing lunatics. Others argue that they will “stay and fight.” Many right-wing conspiracists are rejoicing at what they believe will be the New Twitter where anything goes, including blatantly false statements about important matters like elections. Such statements are already appearing in a multitude of tweets.

Staying and fighting may not be a viable strategy if indeed Twitter is going to adopt the policy that anything goes. If it does, it will almost certainly and very quickly attract the Flat Earth and other crazies who have nothing useful to say and are not open to reason. In that case, Twitter may well die, and Musk will lose a lot of money.

I say that because I am confident that a social media platform of Twitter’s scope will not long endure as a home for lunatic fringe participants. There are, of course, plenty of them already participating. Usually, the best approach is to just block them.

Maybe Twitter really is worth $44 billion but the investment could easily be squandered by turning the platform into what Trump’s Truth Social was supposed to be but never achieved. The good news is that it won’t take too long to see which way the mendacity is blowing.

Twitter as a free-to-lie/cheat/steal platform, Twitter as the new home for Fox News and the like, can be replaced by a platform that respects truth, rejects disinformation and honors the true meaning of the idea of “free speech.” Call me naïve, if you like, but $44 billion for a platform that promotes false information is probably a bad investment. We’ll see.

What a Picture is Worth ….

Donald Trump — A Gangster in the White House

I write to give you the gist of Jeffrey Toobin’s excellent True Crimes and Misdemeanors.

If there is anything to be disappointed about, it is that the book was published in early August of 2020 and thus does not address Trump’s (and other Republicans’) incitement of the January 6 attack and his second impeachment. But there is likely little that Toobin could add at this stage to what is known about that, given the stonewalling by most of Trump’s enablers and the apparent indifference of the Department of Justice to the entire matter.

That limitation aside, this book, like the exceptional Where Law Ends by Andrew Weissman, displays throughout the gift of clear exposition. A complex tale told well. And, like Weissman, Toobin pulls none of his punches in judging the behavior of most of the participants in the criminal enterprise that defined the Trump presidency. If there is anything to complain about in that regard, it’s Toobin’s obvious fascination with and adoration of the role, style, and grit of Speaker of the House Nancy Pelosi, perhaps the only major player to come out of the Trump crime spree as a genuine hero in Toobin’s eyes.

The book reads like a true crime novel, and it is all about crimes. Sad to say, it’s also not a novel. It’s true. All of it.

So, where to begin? The book opens with a summary analysis of Trump’s survival despite the findings of the Mueller Report. There is plenty of blame to go around but much of it rests at the feet of Mueller himself:

Mueller’s caution and reticence led him to fail at his two most important tasks.  Thanks to the clever actions (and strategic inaction) of Trump’s legal team, Mueller failed to obtain a meaningful interview with Trump himself. Even worse, Mueller convinced himself – wrongly – that he had to write a final report that was nearly incomprehensible to ordinary citizens in its legal conclusions. [True Crimes at 8]

Toobin ends the opening with the observation that,

everyone – friends as well as enemies – knew what [Trump] had done. It was obvious to any sentient observer that he did what he was accused of in the Mueller Report and in the articles of impeachment. [[True Crimes at 11]

The book then narrates the story of how that happened, beginning with James Comey’s betrayal of the country by his decision to ignore FBI policy about disclosing details of investigations at all, let alone on the literal eve of an election, with the result that Hillary Clinton’s candidacy was undermined at the last minute. The subsequent narrative will be familiar to everyone who was paying attention but the details, including many not previously revealed (to my knowledge) propel the story forward. Toobin concludes, “it appears likely, if not certain, that Comey cost Clinton the presidency.” [[True Crimes at 28] Indeed.

Toobin makes a compelling case that Robert Mueller was hyper-focused on bringing his investigation to a rapid close and thus failed to pursue “the single most important piece of evidence,” namely, the testimony of Donald Trump himself. But,

Mueller didn’t. He backed down. He couldn’t bring himself to launch a direct legal attack against the president of the United States. [True Crimes at 197]

Of all the mistakes made, and in truth every serious investigation of complex events will have some, the failure to force Trump’s testimonial hand stands out as the largest and the least understandable in light of Mueller’s assignment. Everyone – Mueller’s team, Trump’s lawyers – knew Trump would perjure himself if questioned under oath. He would have had extreme difficulty responding to skilled cross-examination of his conduct and motives. This is particularly important because Mueller believed that Trump’s “state of mind” was critical to bringing charges against him. For me, that will always remain a mystery. State of mind is simply never directly knowable, despite what we’ve seen in some phantasmagorical science fiction movies. It is inferable from conduct in context and circumstances, always.

Mueller made other mistakes. He should have squeezed Michael Cohen, Trump’s personal lawyer whom they had dead to rights on campaign finance violations and lying to Congress. Without ever asking whether his jurisdiction might include the Cohen issues, Mueller turned the case over to the Southern District of New York. Because those prosecutors, accomplished though they were, saw their role narrowly – Cohen was the target, not Trump – they never sought Trump’s tax returns or his financial records.

In a precursor to what was to come, William Barr, who had once been Mueller’s boss at DOJ, volunteered in June 2018 a 19-page memo to Deputy Attorney General Rod Rosenstein, who had appointed Mueller as Special Counsel, attacking the legitimacy of the Mueller investigation. Barr argued that the president could, for any reason or no reason (the legal standard for “at will” employment firing), fire the head of the FBI (Comey) and such action could not be attacked as obstruction of justice. Barr also objected on constitutional grounds to any attempt to force Trump to testify. [True Crimes at 234-235]

Thereafter, negotiations over Trump’s possible testimony were postponed while Rudy Giuliani was brought in to lead Trump’s legal defense team. At a “get-acquainted” meeting with Mueller’s team,

Giuliani wanted to nail down Mueller’s commitment that he would follow the [DOJ Office of Legal Counsel] policy barring indictments of sitting presidents. Aaron Zebley volunteered that Mueller would. [True Crimes at 236, italics mine]

When I read that, I almost gagged. Zebley was Mueller’s former Chief of Staff at the FBI and his top aide in the Trump investigation. Zebley was the subject of much critical assessment in Andrew Weissmann’s Where Law Ends, discussed in detail here: https://bit.ly/3Jn8ye3

I can think of no plausible reason for Mueller or his team to offer such a concession at that point, or likely at any point, in the investigation without getting something of extraordinary importance in return. But, no, the point was “volunteered” away. Astonishing and inexplicable in my opinion.

Many key players in the prolonged saga of Trump’s presidency come in for harsh criticism in Toobin’s accounting, including Judge T.S. Ellis, the judge in the first trial of Paul Manafort, Trump’s former campaign chair. Toobin notes the judge’s “partisanship and incompetence.” [True Crimes at 238] Strong words, indeed, but justified by the shocking events he narrates.

One beef I have with Toobin relates to the central issue in the Mueller investigation. Mueller concluded that there was no evidence proving that Trump or his campaign “colluded” with Russia. Toobin accepts this finding, with the qualification that Trump and his inner circle certainly wanted to collude. [True Crimes at 269] Given the failure to examine Trump personally under oath or to subpoena his taxes and financial records, Toobin’s total acceptance of Trump’s innocence on the collusion issue is, I think, unjustified. Even more so because Trump’s answers to the written questions ultimately submitted to him by Mueller included 36 instances of “don’t remember” by the man who repeatedly claimed to have a genius level mind and memory. [True Crimes at 273]

Toobin holds nothing back in stating that Rudy Giuliani’s involvement in the Ukraine extortion episode “must rank among the most disastrous pieces of advocacy in the history American lawyering.” [True Crimes at 292] No doubt, but Toobin also holds nothing back regarding the Mueller Report itself. He correctly concludes that the Report established that “Trump committed several acts of criminal obstruction of justice.” [True Crimes at 300] Using his gift of snark to full advantage, Toobin paraphrases the Mueller conclusions on obstruction:

We can investigate the President, but we can’t prosecute the President. If our investigation determined that he was in the clear, we’d say that – but we’re not saying that. Nor are we saying that he’s guilty of anything. So we’re not saying he’s guilty – but we’re not saying he’s innocent either. Basically. [True Crimes at 302]

Toobin characterizes the decision to avoid saying whether prosecution was warranted as a “gift to Trump.” [True Crimes at 302] Right again.

For several reasons, a special mention must be made of then- Attorney General William Barr’s issuance of a second letter, two days after he received the 448-page Mueller Report, interpreting the Report to say things it did not say and drawing conclusions the Report did not draw. Or, as Toobin put it, Barr put “a stake in Mueller.” [True Crimes at 307] And then, one of the highlights of the entire book for me,

Many on Mueller’s team, especially at the lower levels, were incandescent with fury at Barr.” [True Crimes at 308]

I don’t think will ever forget that phrase, “incandescent with fury” that so graphically describes how I and many others felt when Barr’s treachery sank in.

The book goes on to cover Trump’s Ukraine extortion scheme, the outrageous efforts of the White House and outside counsel to defend the indefensible, the refusal of Republican senators to hear the evidence through witnesses and their determination to protect Trump at any and all costs. Toobin is unsparing in his condemnation of these efforts, and all are worth reading.

The main thing that really surprised me in the book was an omission. I may have missed it, though I doubt it. There was no discussion of the fate of the full written report (I will not dignify it with the term “transcript,” since it was in no sense an actual transcript) on the Trump-Zelensky call that was widely reported to have been sequestered in a White House server to which access was extremely limited. I have seen no reports about whether the Biden administration has opened the server to discover its contents or whether the server was removed with by the outgoing administration to, again, protect Trump from further exposure of his crimes.

I also strongly disagree, as I have previously written, with the decision of the House managers (mainly the Speaker) to limit the impeachments to narrowly drawn issues, given the breadth and depth of Trump’s crimes in office. The House was not bound by the self-imposed limitations of the Mueller Report and, knowing, as the House did, that conviction of Trump was completely unlikely, they should have thrown the book at him, exposing for the watching world the range and importance of his crimes in office.

I also must record my fundamental disagreement with Toobin’s judgment about the proper role of the Senate in the impeachments. He says,

The senators were nothing more, and nothing less, than politicians were supposed to decide the president’s fate based just in part on the evidence at trial but also on their overall sense of what was best for the country.

That view is far too narrow and validates the refusal of the Republican Party to come to grips with the realities of Trump’s presidency. There remains, and history will confirm, no doubt that Donald Trump committed multiple crimes in office and that he committed crimes in attempting to stop the peaceful transfer of power to the Biden administration. To say that the Senate’s judgment was rightly based on a self-interested determination of “what was best for the country” makes a sham of the entire constitutional process. I do not believe the Founding Fathers, if they had been able to imagine a president like Trump, would have intended that the Senate could just say “it’s in our best interest to keep the leader of our party in power, so he’s ‘not guilty’ regardless of what he did.” I believe the Founding Fathers, whatever their other flaws, wanted and expected more when the extraordinary remedy of impeachment was brought against a president.

Toobin does not spend much time on Trump’s handling of the pandemic because that was not the primary topic of the book. But, as some of the Republican senators observed, the people would eventually render their judgment of Trump on election day in 2020. And they did. For reasons I still cannot grasp, Trump received more than 74 million votes, despite everything. But, fortunately for the republic and the world, Joe Biden won more than 81 million votes and a sufficient margin in the Electoral College to take the presidency. Then, Trump incited a coup to try to stop the transfer of power to the new president.

This was what Trump cared about the most. Toobin presciently notes,

Trump had no great passions on the issues, no policy agenda that he was determined to enact. For Trump, his presidency was more about him than what he could accomplish. For this reason, the only verdict that has ever mattered to Trump is the one rendered on Election Day.

Thus it was written and thus it was done.

You may recall Michael Cohen’s testimony before Congress in which he likened Trump to a mafia boss. While Cohen’s handling of Trump and his legal affairs was problematic, to say the least, it appears that he correctly identified the central idea of Trump’s personal code of conduct.

The central question facing us now is, I think, whether the current Attorney General, Merrick Garland, is just another Robert Mueller. As an earlier post has discussed, the statute of limitations has already run on one of Trump’s obstruction crimes. Garland has publicly stated he will follow the evidence and the law even if it leads to Trump. More lawyers have apparently been hired to work on Trump matters.

Meanwhile, time marches only in one direction. The country waits for action. Trump’s crimes, and those of his enablers in the White House and Congress, stretch well back into his presidency, with the capstone being his incitement of the attack on the Capitol on January 6, 2021, more than 15 months ago. The nation waits ….

Trump’s Documents – Trump’s Crimes

By now you are likely aware that Trump’s attempts to prevent the disclosure of emails and other documents related to his attempted coup on January 6 are failing across the board. This is clearly the correct outcome. The observations of one judge, in particular, have attracted some news attention but, as usual, have disappeared into the fog of astonishing disclosures about Republican obstruction and corruption in Congress and elsewhere.

I am therefore using this forum to share with you a few quotations from the March 28 opinion in Eastman v Thomson, the federal District Court opinion that heard Trump attorney John Eastman’s claims of attorney-client and work product privilege for a tranche of 111 emails demanded by the January 6 Select Committee. These messages related to Eastman’s role, and Trump’s actions, in Trump’s legal and political strategy regarding the results of the 2020 election. [NB: footnotes and citations, the bane of effective communication, have been omitted; my helpful headings are underscored & italicized; opinion points of emphasis bolded by me] [NB2: the opinion is 44 pages long; you can read the whole thing here, https://bit.ly/3tZ0tax , but the gist is set out below. I read it so you don’t have to.]

There Was No Election Fraud in 2020

In the months following the election, numerous credible sources–from the President’s inner circle to agency leadership to statisticians–informed President Trump and Dr. Eastman that there was no evidence of election fraud.

… after “dozens of investigations, hundreds of interviews,” the Department of Justice had concluded that “the major allegations [of election fraud] are not supported by the evidence developed.”

By early January, more than sixty court cases alleging fraud had been dismissed for lack of evidence or lack of standing.

Eastman’s Plan to Overturn the Election

Ultimately, Dr. Eastman conceded that his argument was contrary to consistent historical practice, would likely be unanimously rejected by the Supreme Court,38 and violated the Electoral Count Act on four separate grounds.

Knowing that his legal theories were invalid, Eastman addressed the mob that assembled on January 6 at Trump’s invitation:

We no longer live in a self-governing republic if we can’t get the answer to this question. This is bigger than President Trump. It is a very essence of our republican form of government, and it has to be done. And anybody that is not willing to stand up to do it, does not deserve to be in the office.

But,

Before the Joint Session of Congress began, Vice President Pence publicly rejected President Trump and Dr. Eastman’s plan.

Then, and then, they threw themselves on the railroad tracks …  [NB3: paraphrase of 1969 song, Along Came Jones]

Even as the rioters continued to break into the Capitol, President Trump tweeted at 2:24 pm: “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!”

As the attack progressed, Dr. Eastman continued to urge Vice President Pence to reconsider his decision not to delay the count.

The rampage on January 6 “left multiple people dead, injured more than 140 people, and inflicted millions of dollars in damage to the Capitol.”

As the House of Representatives later wrote, January 6, 2021 was “one of the darkest days of our democracy.”

 Refusal to Produce Documents to January 6 Select Committee

 Dr. Eastman declined to produce any documents or communications to the Select Committee and asserted his Fifth Amendment privilege against production.67 During his deposition, Dr. Eastman asserted his Fifth Amendment privilege 146 times.

 NB4: You know, the Fifth Amendment that says you don’t have to testify to facts that might incriminate you. The government must find someone else to incriminate you. Or some documents ….

 The plan proposed by Dr. Eastman’s memo involve actions by the Vice President without recourse to the courts.

Litigation was never Dr. Eastman’s motivation for planning the events of January 6, perhaps because, as he conceded, his legal theories would be rejected “9-0” by the Supreme Court.

The true animating force behind these emails was advancing a political strategy: to persuade Vice President Pence to take unilateral action on January 6.

Trump Committed Crimes

The crime-fraud exception applies when (1) a “client consults an attorney for advice that will serve [them] in the commission of a fraud or crime,” and (2) the communications are “sufficiently related to” and were made “in furtherance of” the crime. It is irrelevant whether the attorney was aware of the illegal purpose or whether the scheme was ultimately successful. The exception extinguishes both the attorney-client privilege and the work product doctrine.

The Select Committee alleges that President Trump violated 18 U.S.C. § 1512(c)(2), which criminalizes obstruction or attempted obstruction of an official proceeding.

President Trump attempted to obstruct an official proceeding by launching a pressure campaign to convince Vice President Pence to disrupt the Joint Session on January 6.

Together, these actions [meetings at White House, statements to the January 6 mob] more likely than not constitute attempts to obstruct an official proceeding.

Dr. Eastman does not dispute that the Joint Session is an “official proceeding.”

A person violates § 1512(c) when they obstruct an official proceeding with a corrupt mindset. The Ninth Circuit has not defined “corruptly” for purposes of this statute. However, the court has made clear that the threshold for acting “corruptly” is lower than “consciousness of wrongdoing,” meaning a person does not need to know their actions are wrong to break the law. Because President Trump likely knew that the plan to disrupt the electoral count was wrongful, his mindset exceeds the threshold for acting “corruptly” under § 1512(c).

President Trump and Dr. Eastman justified the plan with allegations of election fraud—but President Trump likely knew the justification was baseless, and therefore that the entire plan was unlawful.

President Trump’s repeated pleas for Georgia Secretary of State Raffensperger clearly demonstrate that his justification was not to investigate fraud, but to win the election.

President Trump likely knew the electoral count plan had no factual justification.

The plan not only lacked factual basis but also legal justification.

Vice President Pence “very consistent[ly]” made clear to President Trump that the plan was unlawful, refusing “many times” to unilaterally reject electors or return them to the states.

Dr. Eastman argues that the plan was legally justified as it “was grounded on a good faith interpretation of the Constitution.”  But “ignorance of the law is no excuse,” and believing the Electoral Count Act was unconstitutional did not give President Trump license to violate it. Disagreeing with the law entitled President Trump to seek a remedy in court, not to disrupt a constitutionally-mandated process. And President Trump knew how to pursue election claims in court—after filing and losing more than sixty suits, this plan was a last-ditch attempt to secure the Presidency by any means.

The illegality of the plan was obvious.

… Court finds it more likely than not that President Trump corruptly attempted to obstruct the Joint Session of Congress on January 6, 2021.

… the evidence shows that an agreement to enact the electoral count plan likely existed between President Trump and Dr. Eastman.

President Trump likely knew that the electoral count plan was illegal.

President Trump continuing to push that plan despite being aware of its illegality constituted obstruction by “dishonest” means under § 371.

Dr. Eastman himself repeatedly recognized that his plan had no legal support.

Dr. Eastman admitted more than once that “his proposal violate[d] several provisions of statutory law….”

Dr. Eastman’s views on the Electoral Count Act are not, as he argues, a “good faith interpretation” of the law; they are a partisan distortion of the democratic process. His plan was driven not by preserving the Constitution, but by winning the 2020 election.

The evidence shows that Dr. Eastman was aware that his plan violated the Electoral Count Act. Dr. Eastman likely acted deceitfully and dishonestly each time he pushed an outcome-driven plan that he knew was unsupported by the law.

President Trump’s acts to strong-arm Vice President Pence into following the plan included meeting with and calling the Vice President and berating him in a speech to thousands outside the Capitol.

Based on the evidence, the Court finds that it is more likely than not that President Trump and Dr. Eastman dishonestly conspired to obstruct the Joint Session of Congress on January 6, 2021.

Finally,

Dr. Eastman and President Trump launched a campaign to overturn a democratic election, an action unprecedented in American history. Their campaign was not confined to the ivory tower—it was a coup in search of a legal theory.

At most, this case is a warning about the dangers of “legal theories” gone wrong, the powerful abusing public platforms, and desperation to win at all costs. If Dr. Eastman and President Trump’s plan had worked, it would have permanently ended the peaceful transition of power, undermining American democracy and the Constitution. If the country does not commit to investigating and pursuing accountability for those responsible, the Court fears January 6 will repeat itself.

The Stench from the Bench

The Washington Post reported recently that Supreme Court Justice Neil M. Gorsuch would join Mike Pence, Ron DeSantis, and Trump’s White House press secretary Kayleigh McEnany in speaking to the Federalist Society. They did and the media, as reported, was excluded. https://wapo.st/3 Jua6Dz  Even rev.com, the repository of many political speeches, could not acquire a transcript.

 I have it on pure speculation, good enough in a Trumpworld, that in a rare act of dexterity, Mike Pence got off his knees and stood erect at the podium during his portion of the show. One wonders how he was received given his shocking one-time decision to comply with the Constitution and the law in connection with Trump’s ongoing attempt to overturn the 2020 election by whatever means will work for him, including violence against the police.

A related question is hanging regarding DeSantis who swings between sycophantic adoration of Trump and hints that he may run against Trump in 2024. McEnany has no such problem. She’s not running for anything but the money. Her connection with the truth is so remote she could satisfy her obligations by just sending a copy of Big Little Lies to sit on the podium during Pence’s talk.

This wasn’t Gorsuch’s first such speech. He did a victory lap at the Federalist Society in November 2017 just after his confirmation to the Supreme Court. https://politi.co/3LySkRt Not surprisingly, perhaps, the only other Justice present then was Justice Alito who has spoken to the Federalists multiple times. In Gorsuch’s 2017 speech, he,

vowed to continue to expound the group’s favored judicial philosophies from his new post. “Originalism has regained its place and textualism has triumphed and neither is going anywhere on my watch,” the justice vowed.

Very interestingly, neither the Supreme Court nor the Federalist Society would say whether Gorsuch was paid to appear and, if so, by whom. Why, I wonder, would they not answer that simple question if he were not going to be paid? Refusing to answer in this context is analogous to pleading the 5th Amendment.

To be fair, it is reported that “liberal justices” are also “often guests of progressive organizations such as the American Constitution Society.” Despite all of that, or because of it, the justices are making public statements defending the high court’s impartiality and integrity. Retiring Justice Stephen Breyer wrote in his book that,

“Political groups may favor a particular appointment but once appointed a judge naturally decides a case in the way that he or she believes the law demands. It is a judge’s sworn duty to be impartial, and all of us take that oath seriously.”

Well, maybe not “all of us.” The sordid conduct of some Justices has now reached the nadir of ethical practice. Justice Clarence Thomas, for example, has defended the court’s “independence” during a lecture at the University of Notre Dame, but failed to mention that his wife, Ginni Thomas, is an avowed right-wing sycophant and Trump lover. She has been widely reported to have played a role in the January 6 attack on the Capitol, has argued far and wide that the 2020 election was stolen, and on and on. And now, we have reports that Ms. Thomas texted multiple times with Mark Meadows, then serving as Chief of Staff to Trump, that Meadows should do everything in his power to overturn the election.

As you likely recall, Thomas was the sole dissenting vote in the case about whether Trump had to turn over documents to the January 6 Select Committee. In Thomas’s participation in that case, there was no mention of his wife’s activities and no apparent concern about the grotesque conflict of interest, or appearance thereof. He apparently thinks he has no disclosure obligations, no recusal obligations regarding participation in cases in which his spouse is actively and aggressively interested.

Something is rotten here – ‘here’ meaning ‘right here,’ not Denmark – and the stench, has only gotten worse in recent days.

Lest we forget, judicial “ethics” also did not stop conservative icon Antonin Scalia from taking trips paid for by … someone not him. Indeed, according to New York Times reporting, Justice Scalia took more than,

258 subsidized trips … from 2004 to 2014. Justice Scalia went on at least 23 privately funded trips in 2014 alone to places like Hawaii, Ireland and Switzerland, giving speeches, participating in moot court events or teaching classes. A few weeks before his death, he was in Singapore and Hong Kong. [https://nyti.ms/3Dk8fPE]

A private individual provided Scalia with a free room at his ranch even though he had business before the Supreme Court. Again, according to the Times,

legal experts said they saw nothing wrong with Mr. Scalia’s accepting a free room at Mr. Poindexter’s lodge. While the Ethics in Government Act, adopted after Watergate, requires high-level federal employees, including judges, to fill out disclosure reports for reimbursements worth more than $335, the visit to the ranch might not have required a formal disclosure, because accommodations provided by a private individual are exempt under current rules.

WHAT????

All my years in private practice I fretted over conflicts of interest issues and Supreme Court justices can accept luxury hotel accommodations if they’re provided by “private individuals?!?!” No wonder “Supreme Court members took 1,009 paid trips between 2004 and 2014.” According to my calculations, that averages to 11 trips per year per Justice. And these are not trips to Bridgeport.

The destinations often are luxurious, including the Casa de Campo Resort in the Dominican Republic, where Justice Samuel A. Alito Jr. was listed as a speaker for an event last February, or Zurich, where Justice Scalia traveled at least three times on privately funded trips.

In 2011, a liberal advocacy group, Common Cause, questioned whether Justice Scalia and Justice Clarence Thomas should have disqualified themselves from participating in the landmark Citizens United case on campaign finance because they had attended a political retreat in Palm Springs, Calif., sponsored by the conservative financier Charles G. Koch. Mr. Koch funds groups that could benefit from the ruling. The disclosure report filed by Justice Thomas made no mention of the retreat. It said only that he had taken a trip, funded by the Federalist Society, a conservative legal group, to Palm Springs to give a speech.

Over roughly a decade, Justice Scalia took 21 trips sponsored by the Federalist Society, to places like Park City, Utah; Napa, Calif.; and Bozeman, Mont. The Federalist Society also paid for trips by Justice Alito during that period, but not for any liberal justices, the disclosure reports show.

The disclosure reports, such as they are, reportedly “show that the majority of the privately funded trips — by far — are sponsored by universities.” Maybe, but it’s a fair bet that on those trips, the Justices don’t stay in dorm rooms. Are we to believe the suggestion that universities paid to send Justices to Singapore, Hong Kong, Ireland, and Switzerland? I also note that universities are sometimes litigants or amicus curiae (friend of the court) in cases of major importance.

The cited Times story about all this was published almost exactly five years ago. At that time legislation was pending in Congress to “require the Supreme Court to create a formal ethics system, beyond the Ethics in Government Act, like the one that governs actions of all other federal judges. That system is known as the Code of Conduct for United States Judges.” It should say “United States Judges Other Than Supreme Court Justices” because it apparently does not apply to them in any meaningful way – each of them decides for himself whether his conduct raises ethical concerns.

Chief Justice Roberts has argued that the Supreme Court, even though it generally abides by this judicial ethics code, is not obligated to do so. It restricts how much judges can be paid for private travel, and limits other activities outside the court, such as allowing private organizations to use “the prestige of judicial office” for fund-raising purposes.

Richard L. Hasen, a professor of law and political science at the University of California, Irvine, said that society could benefit when justices — who are paid about $250,000 a year, far less than they would earn in private practice — leave Washington to speak about how the court works.

“Society could benefit.” Perhaps, if that’s what the Justices always spoke about to other judges, law students and the like. Somehow, I doubt that’s what Scalia was talking about in Zurich.

Self-policing is a nice concept but fails in practice a good deal of the time. And since the Supreme Court is the top of the third branch of government, enshrined in the Constitution and the final word on the constitutionality of state and federal laws, self-policing seems a particularly inapt way of assuring fair, neutral decision-making.

The sitting Chief Justice has defended the current approach by arguing that the Justices “consult the code for lower-court judges in assessing their own ethical obligations.”  They may “consult” but are not bound to follow.” Extraordinary.

The “both sides-ing” of the ethical issues involving speeches and political leanings by Justices cannot be allowed to obscure the fundamental obligation of judicial neutrality embodied in the American Bar Association’s Model Code of Judicial Conduct [bolding is mine] set out below, along with the corresponding Code of Conduct for United States Judges.

ABA: CANON 1
A judge shall uphold and promote the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.

Judges’ Code: Canon 1

A Judge Should Uphold the Integrity and Independence of the Judiciary.

 ABA: CANON 2 
A judge shall perform the duties of judicial office impartially, competently, and diligently.

Judges’ Code: Canon 2

A Judge Should Avoid Impropriety and the Appearance of Impropriety in all Activities

ABA: CANON 3
A judge shall conduct the judge’s personal and extrajudicial activities to minimize the risk of conflict with the obligations of judicial office.

Judges’ Code: Canon 3

A Judge Should Perform the Duties of the Office Fairly, Impartially and Diligently

ABA: CANON 4
A judge or candidate for judicial office shall not engage in political or campaign activity that is inconsistent with the independence, integrity, or impartiality of the judiciary.

Judges’ Code: Canon 4

A Judge May Engage in Extrajudicial Activities that are Consistent with the Obligations of Judicial Office

 Judges’ Code: Canon 5

A Judge Should Refrain from Political Activity

The Judges’ Code is accompanied by a lengthy commentary on each section that only a lawyer can appreciate. Suffice to say that, in substance, the ABA Code and the Judges’ Code are essentially the same.

A commission appointed by President Biden to consider some of these issues stated in its report that “this voluntary system may not be the best approach to conflicts of interest that may affect the public’s perception of the court. “It is not obvious why the court is best served by an exemption from what so many consider best practice,” the report said. Indeed, a masterpiece of understatement.

Ironically, I suggest without a hint of irony, Justice Alito who often speaks at the Federalist Society’s meetings, had this to say at its November 2020 convention:

Judges dedicated to the rule of law have a clear duty. They cannot compromise principle or rationalize any departure from what they are obligated to do. And I’m confident that the Supreme Court will not do that in the years ahead. When we look back at the history of the American judiciary, we can see many judges who were fearless in their dedication to principle …. [https://bit.ly/3uEG2iE]

Many, but not all, it seems. Furthering the irony, Justice Alito’s very next words were, “and one who is especially dear to the Federalist Society springs immediately to mind I’m referring to Justice Antonin Scalia.” To quote the infamous Mr. Barry, I am not making this up. I will have much more to say about J. Alito’s extraordinary speech in a future post.

Most of the comments I have read about this issue constitute the highest [lowest?] form of tiptoeing by the graveyard. The stench of politics wafting from the High Court is gag-inducing. The pussyfooting by Democrats only makes it worse: “Justice Thomas’s participation in cases involving the 2020 election and the January 6th attack is exceedingly difficult to reconcile with federal ethics requirements.” https://wapo.st/3DqCQLB “Exceedingly difficult?” Really?

This is the same Justice Thomas and his wife, Ginni, whose text messages to Mark Meadows, Chief of Staff to Trump urged Meadows and Trump to “stand firm” in pursuing legal strategies to overturn the election she claimed was stolen from Trump. In keeping with the circus-of-the-obvious that Washington has become, Democrats in Congress were shocked, yes, I say, shocked, and even “outraged” to learn of these messages. https://wapo.st/35r6N1C

Now some experts see problems with this sordid example of non-self-regulation:

Legal ethicists, even some who in the past have been sympathetic to the notion that justices’ spouses are entitled to their own political activities, said the revelations presented a serious problem for the Supreme Court.

“The public is going to be deeply concerned whether a justice can be fair when his wife has been such an active participant in questioning the outcome of the election,” said Steven Lubet, a professor and judicial ethics expert at Northwestern University law school.

Louis J. Virelli III, a Stetson University law professor who wrote “Disqualifying the High Court: Supreme Court Recusal and the Constitution,” said that “this situation is problematic” considering the Jan. 6, 2021, attack on the U.S. Capitol by hundreds of Trump’s supporters. “It is so stark.” [https://wapo.st/3LtMno4]

Not surprisingly to anyone with a functioning mind, “Congressional Republicans came to Clarence Thomas’s defense.” Names: Senate Minority Leader Mitch McConnell, House Minority Leader Kevin McCarthy, leading House shrieker, Jim Jordan. Icons of ethical conduct, every one. Some of them, McConnell in particular, it is said, oppose Thomas even recusing from January 6 cases. We should not be surprised since the last Republican known to believe in democratic principles appears to have died some time ago.

Experts in judicial ethics seem to be falling all over themselves to avoid speaking the dreaded words: RESIGN. The lawyerly hair splitting is disturbing because this is not a problem curable by disclosure or recusal in this case or that. The High Court may well end up deciding multiple cases arising from the January 6 attack and the conspiracies that led up to and followed it.

Even if recusal, the step short of resignation, were adopted by Thomas for those cases, the Court would be deprived of one voice and one vote in an already small group of decision-makers. The burdens on other Justice would increase and the possibility of tie-votes on crucial constitutional issues would increase. Ginni Thomas’s own words proof how tone-deaf and substance-indifferent she and her husband are: ““Clarence doesn’t discuss his work with me, and I don’t involve him in my work.” Sure.

Just imagine:

“How was your day, honey?”

“Fine. Just the usual run-of-the-mill insurrection cases, you know, the attempts to overthrow the government. But you know we can’t talk about that, right?”

“Of course not, so let me tell you what I did today….”

More rules and self-enforcing principles of recusal do not serve the interests of the United States, which should be the only focus here. The interests and feelings of Justice Thomas and his wife are irrelevant. They brought this problem on themselves, and the country should not bear further the costs of their conduct. Thomas has already shown himself to be indifferent, at best, to the high ethically duty that should be the watchword of every Justice on the Court. Resignation is the only appropriate remedy, and it should be forthwith, before more interference with the Court’s business and more impairment of its already wounded reputation occur.

Is It Too Late?

On Sunday, January 2, 2022, the New York Times published an Editorial entitled “Every Day Is January 6 Now.” https://nyti.ms/3qKLbEH Rather than summarize it, I am going to quote liberally from it so that it’s clear who is speaking and what is being said. I may add some thoughts of my own here and there, clearly indicated, and, of course, at the end.

This is not to say that I think the Times is the final word on this or anything. I have, and will continue to, criticize the writing in the Times and other media whose careless and/or deliberate use of words takes news reporting into another realm. A recent example is this headline: “American officials scrambled to clarify Biden’s suggestion that Putin ‘cannot remain in power.’” https://nyti.ms/3NlwD8a Three co-authors are shown and, presumably, at least one editor reviewed the headline before publication. Drop the word “scrambled” and you have the same news: that officials offered clarifications of Biden’s statement. That is the fact, shorn of the authors’ nuances implying confusion and that Biden was making a proposal rather than some of the other possible interpretations of his remark. See https://bit.ly/3tKPiTa It’s hard to avoid the conclusion that the Times was tilting the table against the President here. Why would it do that?

It’s likely part of the journalism philosophy that leads to “both sides-ing” stories. In any case, the practice is inconsistent with the editorial position of the Times on one of the most important issues of our time. Returning, then, to my main purpose here, I quote now extensively from the editorial of January 2, noting in passing that it is now March 28, another fact to which I will return at the end. Bear with me. This is really important. Really. [ As usual, the bolded text is my doing]

Jan. 6 is not in the past; it is every day.

It is regular citizens who threaten election officials and other public servants, who ask, “When can we use the guns?” and who vow to murder politicians who dare to vote their conscience. It is Republican lawmakers scrambling to make it harder for people to vote and easier to subvert their will if they do. It is Donald Trump who continues to stoke the flames of conflict with his rampant lies and limitless resentments and whose twisted version of reality still dominates one of the nation’s two major political parties.

In short, the Republic faces an existential threat from a movement that is openly contemptuous of democracy and has shown that it is willing to use violence to achieve its ends. No self-governing society can survive such a threat by denying that it exists. Rather, survival depends on looking back and forward at the same time….

The effort extended all the way into the Oval Office, where Mr. Trump and his allies plotted a constitutional self-coup.

We know now that top Republican lawmakers and right-wing media figures privately understood how dangerous the riot was and pleaded with Mr. Trump to call a halt to it, even as they publicly pretended otherwise. We know now that those who may have critical information about the planning and execution of the attack are refusing to cooperate with Congress, even if it means being charged with criminal contempt….

Over the past year, Republican lawmakers in 41 states have been trying to advance the goals of the Jan. 6 rioters — not by breaking laws but by making them. Hundreds of bills have been proposed and nearly three dozen laws have been passed that empower state legislatures to sabotage their own elections and overturn the will of their voters ….

Thus the Capitol riot continues in statehouses across the country, in a bloodless, legalized form that no police officer can arrest and that no prosecutor can try in court….

A healthy, functioning political party faces its electoral losses by assessing what went wrong and redoubling its efforts to appeal to more voters the next time. The Republican Party, like authoritarian movements the world over, has shown itself recently to be incapable of doing this. Party leaders’ rhetoric suggests they see it as the only legitimate governing power and thus portrays anyone else’s victory as the result of fraud — hence the foundational falsehood that spurred the Jan. 6 attack, that Joe Biden didn’t win the election….

Polling finds that the overwhelming majority of Republicans believe that President Biden was not legitimately elected and that about one-third approve of using violence to achieve political goals. Put those two numbers together, and you have a recipe for extreme danger….

Democrats aren’t helpless…. They hold unified power in Washington, for the last time in what may be a long time. Yet they have so far failed to confront the urgency of this moment — unwilling or unable to take action to protect elections from subversion and sabotage. Blame Senator Joe Manchin or Senator Kyrsten Sinema, but the only thing that matters in the end is whether you get it done. For that reason, Mr. Biden and other leading Democrats should make use of what remaining power they have to end the filibuster for voting rights legislation, even if nothing else.

Whatever happens in Washington, in the months and years to come, Americans of all stripes who value their self-government must mobilize at every level — not simply once every four years but today and tomorrow and the next day — to win elections and help protect the basic functions of democracy. If people who believe in conspiracy theories can win, so can those who live in the reality-based world.

Above all, we should stop underestimating the threat facing the country. Countless times over the past six years, up to and including the events of Jan. 6, Mr. Trump and his allies openly projected their intent to do something outrageous or illegal or destructive. Every time, the common response was that they weren’t serious or that they would never succeed. How many times will we have to be proved wrong before we take it seriously? The sooner we do, the sooner we might hope to salvage a democracy that is in grave danger.

[End of Times editorial]

Three months have passed since that editorial was published. We are now a year and three months past the January 6 attack on the Capitol and on American democracy. Here’s where we are:

  1. No main planners behind the January 6 insurrection (referring here to members of the Trump administration, members of Congress and Trump himself) have been indicted,
  2. Members of Congress and others continue to spit in the face of the Select Committee to Investigate the January 6th Attack on the United States Capitol by defying demands, including subpoenas, for records and testimony.
  3. The Select Committee is moving at a pace that makes the tortoise in the famous tale look like War Admiral, the fourth winner of the Triple Crown. At this rate nothing of substance will have been accomplished by the mid-term elections of 2022.
  4. Attorney General Merrick Garland’s Department of Justice has not produced a single indictment of any of the principal conspirators behind January 6, or any indictments of those refusing to comply with lawful orders of the Select Committee, meaning that any indictment now almost certainly would not be tried before the 2024 elections.

I practiced law for 48 years, including conducting investigations of lying and highly resistant conspirators, and closely observed Watergate, the Clinton impeachment, and other sordid political matters. Strategies such as “run out the clock” are well-known by prosecutors. The statute of limitations has already run on at least one of Trump’s crimes. See https://shiningseausa.com/2022/02/18/trump-may-skate-obstruction-justice/

I understand the natural reluctance of prosecutors to bring cases they fear might lose and that might lead to judicial decisions with lasting negative effects on our politics. No one wants to be associated with losing a big case. But failing to bring a case that is justified by evidence, but where the law may be unclear, for fear of defeat is to be defeated already. You have beaten yourself and the country too. That’s where we seem to be now. We are defeating ourselves by allowing the primary perpetrators of the January 6 insurrection to escape swift justice.

Lawyers lose cases all the time. Every trial has a winner and a loser. It’s rare that losing a case has long-term consequences for the attorneys involved.

We’ve seen this before, as I noted in reviewing Andrew Weissmann’s remarkable analysis of the Mueller investigation in Where Law Ends: “rigid thinking and timidity in the face of threats from the subjects of the investigation led to catastrophic errors.” https://bit.ly/3uTJ7M7 Among the leading ones were decisions not to interview Trump’s children who worked in the White House throughout his term.

Even more egregious was the decision not to force Trump’s hand regarding testimony under oath. I almost fell over yesterday when reading in Jeffrey Toobin’s True Crimes and Misdemeanors [started before the 2020 election but only now being finished – more on that in a future post] that Aaron Zebley, Mueller’s chief of staff at the FBI and a senior member of the investigation team, committed one of the worst negotiating sins imaginable.

A meeting was held between Mueller’s people and Trump’s defense team, for the purpose of introducing Rudy Giuliani as the new lead defense lawyer. According to  Toobin, Giuliani wanted to,

nail down Mueller’s commitment that he would follow the DOJ’s Office Legal Counsel policy barring indictments of sitting presidents. Aaron Zebley volunteered that Mueller would. [True Crimes at 236]

It appears that Mueller got nothing in exchange for this astounding concession that removed one of the largest leverages that Mueller had. I would not have believed this happened were it not consistent with Weissmann’s descriptions of the influence Zebley exerted at critical moments in the investigation.

Successful investigations require maximum pressure. I don’t mean that the investigators should behave unreasonably or unfairly. That approach would likely backfire at some point. But there is no reason whatsoever to give away leverage without securing at least an equal value in some other form. As it happened, Trump himself was never placed under oath  for an interview, never answered many of the written questions posed to him and almost certainly lied in answering many others in which the self-declared “stable genius” claimed to not remember much of anything. See my series of posts about the Mueller investigation, beginning at https://bit.ly/3tLT2Us.

The Select Committee is run by politicians so there is perhaps even less reason to expect world-class investigative technique, but if something doesn’t change soon, the entire point will be lost. In what universe do leaders of a democracy, all sworn to follow the law and sustain the Constitution, walk free in the face of evidence that they conspired to overthrow the democratically constituted government?

I say ‘evidence’ recognizing we don’t have all of it. But if all the evidence would show they were innocent, is it plausible that so many members of Congress and of the Trump administration would refuse to cooperate, refuse to produce documents, and refuse to testify under oath? Enough is already known to warrant very aggressive and immediate action to bring the Republican dogs to justice. ALL of them.

As the New York Times astutely said back in January 2022,

Jan. 6 is not in the past; it is every day.

The White House and the Department of Justice had better wake up before it’s too late.

Meme Time Again

These photos and memes were captured from Twitter and Facebook. They present in images and a few words the essence of important messages for these times.

In closing, I want to note that Ukraine was never a threat to Russia. Putin’s claims otherwise are pretextual. His rationale of needing a bulwark against NATO likewise fails because, if he takes Ukraine, his new border will line up against multiple other current  NATO members. Then what? Will he stop there or is Ukraine Putin’s Sudetenland? If you’re not familiar with Sudetenland’s place in history, read this: https://bit.ly/3sqaddo 

We must not make that mistake again.