Category Archives: Law

Gagging Trump

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This past Monday, I listened to two hours of the even longer oral arguments in United States v. Trump, regarding Judge Chutkan’s order limiting Trump’s attacks on Jack Smith, court staff and prospective witnesses in the criminal case against him. Several aspects of the argument stood out.

One was Trump’s lawyer’s desperate attempts to avoid conceding any limitation on what Trump can say, probably fearing that any concession of even the smallest point would swallow the entirety of his argument. His basic position was that Trump cannot be prevented from saying whatever he wants about anyone and everyone because of the First Amendment, and because he’s running for office, and because he’s Trump.

The court’s questioning, especially from Judge Millet, was detailed, incisive and brought back memories of law school classes in which the intellectual noose was tightened and then tightened some more as you tried to escape the traps laid by the professor. Trump’s lawyer kept trying to add facts to the hypothetical questions the judge asked, and she was not having it. It was somewhat embarrassing to witness and likely did not serve Trump well.

When counsel for the government addressed the court, however, the same questioning twisted itself into knots trying to determine whether there was any speech by Trump that could be prevented by the District Court order under review. The government was arguing that the First Amendment freedom of speech could be limited by the need to protect the integrity of the judicial process.

The judges struggled to find the limitations on that principle with questions like this: suppose Trump is in a debate during his campaign while the trial is underway, and his opponent raises testimony given in the trial. Can Trump say: that witness is a liar? A scoundrel?  A politically motivated anti-Trumper? Counsel for the government tried to argue, yes, that can be barred by court order to protect the integrity of the trial process but conceded that general statements about prejudice were acceptable. The court was not having it. Or so it seemed.

One thing you learn early in law school is that predicting how a court is going to rule by listening to questioning during oral argument is a fraught business. The media loves to predict outcomes but is often wrong — very wrong. Politico, to my surprise, published a reasonably balanced discussion of the oral arguments. https://tinyurl.com/2uy2v5e6

The key question comes down to how can “protection of the integrity of the judicial process” be accomplished without unconstitutionally restricting the speech of a defendant? It’s a difficult analysis.

In my view, the First Amendment privilege of the defendant must yield to the integrity of the judicial process. If the defendant is allowed to publicly attack witnesses and/or undermine the credibility of the prosecutors, the integrity of the process will be damaged, which is precisely why someone like Trump would and does almost daily engage in such attacks. Drawing the line between acceptable criticism, such as “the prosecution is politically motivated,” and impermissible attacks such as “the prosecutor is a thug, the witness is dishonest and prejudiced” is difficult.

But the court process has ways for these types of challenges to be brought before the court and decided, based on EVIDENCE, rather than permitting the defendant to undermine the entire process by intimidating lawyers and witnesses. Trump’s attorney made much of the challenges lawyers face in advising defendants regarding statements made about pending cases, some of which points seemed to resonate with the judges. One solution to that conundrum is to tell the client to stop talking about the case. If attacked, refer to any recorded testimony that arguably says otherwise. In short, stay factual and pass on the invective and threats.

But, of course, that’s not Trump’s style. Bullying and threatening are his standard repertoire. He’s not going to give it up unless the courts make it clear that the consequences for violating court orders designed to protect the judicial process will be met with severe consequences, including jail time. Meanwhile, since the gag order is on hold pending appellate court review, Trump will continue to be treated as a special class of one who is above the law that applies to everyone else.

Trump’s “Defenses”

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As she often does, Jennifer Rubin of the Washington Post has written a compelling piece  entitled, The trifecta that could sink Trump’s favorite defense https://tinyurl.com/3xrvzdam As often happens in criminal conspiracy cases, some of the defendants, in this case three former Trump attorneys and an Atlanta bail bondsman have proffered evidence against Trump in exchange for plea deals. Uncommonly, videos of some of their statements to prosecutors were leaked to the press by one of their attorneys. Time will tell what effect that decision has on the lawyer’s future.

But what is clear as the proverbial bell here is that three of Trump’s co-conspirators have chosen to save themselves at Trump’s expense. Anyone watching Trump for the past seven years can readily anticipate how he will react, but what is most interesting is the impact of their proffers on Trump’s defense that he truly, genuinely, authentically believed he won the 2020 election and that he lacked the necessary criminal intent to overturn the election through extra-legal or illegal means because he was acting on the advice of his attorneys.

The testimony of many participants in Trump’s scheme are aligning now in close harmony around a couple of key ideas: (1) Trump’s attorneys did not advise him that he won the election; indeed, many of them advised the opposite was true; Trump simply chose to act on the statements of those who told him what he wanted to hear but which he had every reason to know was false; (2) even if Trump somehow truly believed he won, for which point no credible evidence has thus far emerged, that belief is not a defense to the several unlawful actions he took to overturn the election result through extralegal means, such as offering phony electors and the January 6 assault on the certification process.

The legal system provides methods by which proper challenges could have been brought and, indeed, more than 60 were filed in courts across the country. None of them succeeded.

Trump’s most effective defense, the one on which he has principally relied for his entire life, is delay. In that he has a chance. The Fulton County Georgia DA has just requested an August 2024 start date which, if adopted, will virtually assure that the trial is ongoing at the time of the 2024 election. If the country were to lose its collective mind and elect Trump to the presidency, he would almost certainly try to pardon himself and would offer, for a price, pardons to everyone who might still be a threat to him. The notion that a president can pardon himself is preposterous on its face but with the current Supreme Court stacked with Trump appointees, there is no assurance he would not be “exonerated.”

The obvious and best solution, other than Trump’s earlier conviction and sentencing in one of the other felony cases, would be for him to be defeated at the ballot box. He would, of course, claim the election was rigged and start the challenge process all over again, perhaps including another attempt at a violent coup.

This pathetic situation has resulted, in part, due to the failure of the various charging parties to coordinate their activities and, in part, due to the pro-Trump preference demonstrated repeatedly by Judge Aileen Cannon in the Mar-a-Lago documents case. All the judges in all the cases are putting up with conduct that would never be accepted for any other defendant than Trump. If it is true that there is a two-tiered justice system, as many Republican Trump worshippers have claimed, it favors Trump rather than prejudicing him.

Time will tell, as usual. Meanwhile, the best offense against Trump remains producing an overwhelming election defeat in 2024. There may be no other way.

Some Questions About Trump’s Theft of Secret Government Documents

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As the prosecutors and courts muddle on with the Trump cases, I have been reflecting further about the most curious case of the secret documents Trump removed from the White House, stored in various insecure locations at Mar-a-Lago, lied about, refused to return, and, to this day, claims that he has an absolute right to have and to do with what he pleases, including, as he has already done, sharing them with persons not cleared to see them.

My main question is: why? Why would Trump set himself up for charges of violating national security in this way? Why, when the demand for return was made, did he not simply return the documents and claim it was all a big misunderstanding? Indeed, Why didn’t the Trump family rush to persuade him to return the documents? How about all the sycophantic spineless Republicans in Congress? Why didn’t they go to him and try to persuade him to return the documents?

I recognize the obvious: once Trump wants something to be true, he declares it’s true and that, for him, is the end of it. And the truth is that belief is a choice. No one inherently believes the Earth is an orb. They are taught in school that it is so and, in good schools, given the evidence from which its “orbness” has been deduced. The relatively small number of dunderheads who claim the Earth is flat have chosen not to believe the evidence.

Trump always chooses to “believe” that which benefits him. Thus, while president, he repeatedly said: “Article II allows me to do anything I want,” https://tinyurl.com/28ysddrt, all the while claiming he doesn’t talk about it while he’s talking about it. I can say with certainty that no attorney with credible understanding of the Constitution would accept that claim, but Trump chooses what he chooses.

Moreover, everything with Trump is transactional. I understand that he is stubborn and doesn’t like to be told what to do. One theory is that he kept the documents just to show that no one, not even the top law enforcement echelons of the U.S. government, can tell him what to do. Maybe, but that explanation seems thin when the criminal charges of the gravest nature are considered. Trump is not much of a gambler, and he would have to have a gambler’s mentality to persist with the document fight in the face of the felony charges brought against him.

While he likes to portray himself as a brilliant businessman, he bankrupted most of the businesses he has been involved in, including, remarkably, casinos. Starting with the millions he had at his disposal, as gifts from his father, almost anyone could’ve made a fortune in real estate in places. like New York City. Still, Trump sees everything in terms of personal benefit to him.

Those characteristics of his personality and behavior, perpetuated over his entire life cycle, thus lead to my speculation about why Trump stole the documents and refused to return them even to the point of being criminally charged. He planned to sell them to foreign governments that would be very interested in seeing top secret U.S. government intelligence reports and would likely pay top dollar for them. If Trump were, by some miracle, to escape a finding of guilt in the documents case, and regain possession of the documents, you can expect Trump to monetize the documents very quickly. It’s what he does.

DOJ Should Investigate Stefanik for Obstruction of Justice

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Reliable reports say that Elise Stefanik, member of Congress and GOP Conference Chair, has filed an ethics complaint with the New York State Commission on Judicial Conduct against Judge Arthur Engoron who is presiding over the civil fraud trial of Donald Trump. https://tinyurl.com/y4mka7xs and https://tinyurl.com/3nyb2p4p

Trump is accused of fraud and has already been found guilty. The question remaining in the case is the extent of the penalties that should be imposed on Trump and the Trump Organization.

You may wonder how it is that Trump has been found guilty already when the trial is still ongoing. I will explain.

Judge Engoron concluded based on the pleadings in the case that the legal standard for “summary judgment” had clearly been met. Summary judgment is a process by which courts routinely adjudicate claims when there is “no dispute of material facts” evident from the pleadings. Cornell Law School elaborates using Rule 56 of the Federal Rules of Civil Procedure, which is typical:

… in order to succeed in a motion for summary judgment, a movant must show 1) that there is no genuine dispute as to any material fact, and 2) that the movant is entitled to judgment as a matter of law. [https://www.law.cornell.edu/wex/summary_judgment]

“Judgment as a matter of law” means that, given the undisputed material facts, there is no legal basis for finding other than in favor of the movant. Even in a jury trial, motions for summary judgment may be brought and granted when there is no dispute of material fact in the evidence.

That brings up another point to understand. The Trump civil fraud trial is a “bench trial,” meaning there is no jury. The parties are relying on the judge to hear the evidence and issue the decisions. Why? Because Trump’s attorneys did not demand a jury trial and you don’t get a jury unless you ask for one.

Returning to Rep Stefanik’s complaint, she is not a party to the litigation and has no “standing” to be one. “Standing” is a very important principle used in all courts. In Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), for example, the U.S. Supreme Court established these principles to determine whether a party has “standing” to sue:

    1. The plaintiff must have suffered an “injury in fact,” meaning that the injury is of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent;
    2. There must be a causal connection between the injury and the conduct brought before the court;
    3. It must be likely, rather than speculative, that a favorable decision by the court will redress the injury. [https://www.law.cornell.edu/wex/standing]

The “standing” principle is the one that prevents people from filing legal complaints based on their political opinions where there is no specific injury to their interests. If it were otherwise, the legal system would be completely bogged down as everyone who was unhappy with anything could sue. Imagine you don’t like the way a local car dealer is promoting sales. Unless those promotions have directly impacted you in the purchase of a car from the dealer, you can’t sue in court to compel the dealer to change its advertising or pay you damages because you are offended by its commercial practices.

So, what is going on with Stefanik, a rapid conspiracist and Trump worshipper?

Simply this: Stefanik has attempted to derail Trump’s civil fraud trial, which he is losing badly, by challenging the judge’s conduct of the case in which she has zero actual interest other than her political desire to prevent Trump from being held accountable. In short, she has no standing to challenge the judge. What happens to Trump in his civil fraud trial is none of Elise Stefanik’s business. Her filing against the judge is an effort to obstruct justice. She is using her position as a member of Congress to try to influence the outcome of a civil fraud trial in which she has no economic or other interest other than her political desire to prevent Trump from being held accountable.

The extreme language used by Stefanik suggests that Donald Trump himself, or lawyers working for him, were intimately involved in drafting the document. It repeats most of the hysterical claims Trump and his lawyers in the fraud case have made, trying to provoke the judge into making a reversible error and for which Trump has been twice fined.

The GOP has long claimed to be the party of “law and order” but as regards Trump, it seems unwilling to let the legal system play out. If Judge Engoron has violated the judicial ethics code and made egregious trial management errors that have prejudiced Trump, the legal system provides appropriate remedies that all other Americans would have to pursue.

Stefanik and her Republican cronies aren’t willing to use the legal system properly because they’re afraid Trump will be found guilty of civil fraud and the multiple felonies with which he has been charged. So, they attack the judges, attack the clerks, attack the legal system in an effort to interfere with the system of justice established by state and federal law. They are terrified that Trump, at long last, will be exposed for the criminal that he is and held accountable under the law, like any other American would be in similar circumstances.

The Above the Law article cited in the opening paragraph of this post makes the point that Stefanik’s argument about the valuation of the Mar-a-Lago club is false:

In fact, the court simply noted that this was the value assigned by Palm Beach County tax assessors — a value which Trump himself militated for in an effort to decrease his tax liability. And that’s the entire point of this trial: Donald Trump committed persistent fraud by representing the value of his assets as astronomically high or preposterously low depending on whether he was seeking to evade taxes, score a conservation easement, or get a loan.

He also had a nasty habit of leaving out unpleasant details like rent control restrictions, options to purchase at below-market rates, and the fact that local governments had already put the kibosh on future development. Indeed, Trump told just such a lie on the witness stand Monday when he shrugged off a 2002 document in which he agreed that Mar-a-Lago could neither be converted to a private residence nor subdivided for development, writing that “the Club and Trump intend to forever extinguish their right to develop or use the Property for any purpose other than club use.”

On the witness stand, Trump made the idiotic claim that he still retained development rights because “‘Intend’ doesn’t mean we will do it.”

Another article about Stefanik’s maneuver notes that:

the complaint has all the hallmarks of Trump’s legal team pulling the strings by using the New York Republican as a cut-out to go after Judge Engoron. [https://tinyurl.com/4rv63d38]

Those indicators include multiple legal citations in correct form that Stefanik, a non-lawyer, would likely not have specified on her own.

Given the virtually identical stream of accusations made by Trump and his lawyers in court, the Stefanik complaint does appear to be a ruse perpetrated to derail the trial in which Stefanik has no legally cognizable interest.

For that reason, she is using her office to obstruct the justice process. DOJ should initiate an investigation into the backstory for her action and charge her with obstruction if the facts thus found are as they strongly appear to be.

Who is the Fool?

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In the movie Can-Can (1960), Frank Sinatra, playing, François Durnais, is in court and addresses the judge:

“Your honor, I am a member of the bar and wish to represent myself.”

The Judge replies: “You realize that a lawyer who represents himself is said to have a fool for a client?”

François Durnais responds: “That may be true, but it’s better than having a fool for a lawyer.”

The website https://quoteinvestigator.com/2019/07/30/lawyer/ attributes the earliest iteration of that retort to a book published in 1682 and to numerous others thereafter.

I mention that as background to the remarkable circus playing out in the New York fraud trial against Donald Trump in which it is alleged he, and perhaps other family members, manipulated the values of various assets to secure loans at favorable rates and reduce taxes below appropriate levels.

Overall, the testimony of Trump and family members consists of two points: (1) Trump: the businesses were worth way more than we claimed, I don’t care what anyone says; everyone involved made money so what’s the problem? I relied entirely on accountants and others for valuations despite what I might have signed off on; sure, I was a trustee but, no, I take no responsibility; and (2) Trump family members: Who, me? I wasn’t involved. I know nothing; I relied entirely on accountants and others for valuations despite what I might have signed off on; I just took the money that magically appeared at the end of the rainbow; no, I take no responsibility.”

And together: “We are innocent of all charges, as usual. We did nothing wrong. We are rich because we deserve to be. Thank you; we’re leaving now.”

Nothing about the reported testimony of Trump and family is surprising. What is surprising, shocking really to any sane, responsible lawyer, is the manner in which Trump’s lawyers have adopted his personality and style in addressing the prosecutors and the judge.

It is the most appalling display of bad judgment imaginable. I am hard to surprise at this late stage of life but am stunned that lawyers would think it’s in their client’s interest to attack the prosecutors openly and repeatedly and, worse, to attack the judge handling the case. The normal, and correct, approach is to be respectful at all times, make your arguments, fight for your evidence but always, always show respect to the judge and court staff.

The only “strategy” implied by Trump’s lawyers’ contrary approach is that, having no other meaningful or substantive defense, their attacks might goad the judge into making an appealable mistake by, for example, lashing out at the defendants or making an egregiously bad ruling out of frustration/anger.

The judge is highly experienced, however, and likely knew what was coming. So far, based on the reports, he has maintained his composure and has not made any meaningful mistakes that would support an appeal by the Trump as against the overwhelming evidence that Trump approved, indeed drove and promoted, the use of wildly incorrect asset values in the pursuit of his life-ambition to enrich himself beyond all reason.

How Trump’s attorneys think it is smart to attack the very people who hold their client’s future in their hands is simply beyond understanding, unless it is simply their personal need to get maximum media exposure for themselves by behaving like hooligans in court and to provide more fodder for Trump’s political base that is prepared to believe anything except the truth about him and his grifter family. If that’s what they are doing, they deserve the severest sanctions for gross malpractice for, among other things, putting their interests ahead of their client’s.

In this case, the adage about having a fool for a client appears to miss the mark. This client appears to have fools for lawyers as well. Client and lawyers alike.

Guns Shows & the American Curse

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[The following is a guest post by Nadine Godwin, a longtime friend and former editor of Travel Weekly among other gifts. She routinely spends huge time investigation important issues that are being considered in federal agencies and preparing/circulating alerts, often with drafts of comments. Her messages to a select list of recipients date back to 2017]

The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has proposed a rule that would effectively, for the first time ever, require almost anyone who sells guns on the Internet or at gun shows to obtain licenses to make those sales.

This matters because holders of federal firearm licenses are required to conduct background checks on their buyers, to sell only guns with serial numbers and to record the sales.

Currently, gun sellers on the Internet and at gun shows don’t have to be licensed, which means they don’t have to do background checks. This circumstance is often called the gun show loophole, but the loophole is way bigger than gun shows.

These days, nearly a quarter of all gun sales occur without background checks or adherence to the other rules associated with a license to sell firearms. Furthermore, up to 80% of firearms used to commit crimes are obtained from unlicensed sources, i.e., without background checks.

Meanwhile, Americans overwhelmingly (87% to 90%, depending on the poll) favor expanded background checks for gun buyers. I support the ATF proposal because I am one of that huge majority.

The deadline for comments on the ATF proposal is Dec. 7. 

Background + some details of the proposal

Sellers on the Internet and at gun shows aren’t licensed now because the relevant law, the 1968 Gun Control Act, was too vague about which gun sellers must be licensed. Besides which, Internet selling wasn’t a thing in 1968.

As a result, brick-and-mortar operations have gotten licenses, but other sellers have not been pressed to do so. Gun traffickers, individuals with dodgy backgrounds and buyers with lethal intent could thus make their purchases essentially unnoted. It is easy to see how this increases the odds for gun violence.

For the good news (my view), the Bipartisan Safer Communities Act, passed last year, set the stage for expanding background checks.

Whereas the 1968 legislation required licenses for those with the “principal objective of livelihood and profit,” the 2022 Safer Communities law requires licenses for anyone who deals in guns “to predominately earn a profit.” That language isn’t very specific either, but it does contemplate licenses for anyone selling guns for profit even if profits aren’t a significant portion of the seller’s livelihood.

It was left to the ATF, the only federal agency with a mandate to regulate the gun industry, to create the rule that makes clear which sellers must be licensed, based on the updated language found in the 2022 law.

For starters, the ATF proposal states, a person is presumed to be in the business of selling firearms if among other things the person:

    • Repetitively sells or offers for sale firearms within 30 days after they were purchased,
    • Repetitively sells or offers for sale firearms that are new, or like new in their original packaging, or
    • Repetitively sells or offers for sale firearms of the same or similar make and model.

Furthermore, the proposal says, it will be presumed a person intends to “predominantly earn a profit” if among other things the person a) promotes a firearms business, however casually; b) keeps records documenting profits and losses; c) obtains a state or local business license for the sale of firearms, or d) buys a business insurance policy that covers firearms inventory.

The rule, if finalized, will apply to gun sales in flea markets and mail-order businesses as well as in the oft-discussed Internet and gun show venues.

The ATF estimates that anywhere from 24,540 to an astonishing 328,296 unlicensed persons selling guns for profit would be affected by this rule.

Geez, a lot of people sell guns!

What to do

The proposed rule wouldn’t require universal background checks for gun sales (our feckless Congress must legislate that), but it gets us a lot closer.

If you support this enhancement to ATF regulations, please speak up by filing comments by Dec. 7 here: https://www.regulations.gov/commenton/ATF-2023-0002-0001.

I am adding a few sample messages, prepared by gun safety groups, that you can use for inspiration.

Finally, please share this letter with anyone you think might want to comment, as well.

Thanks

Nadine Godwin

P.S. For those who would like to know more about this proposal, I am also adding a helpful explainer. It was prepared by Giffords, a gun safety advocacy group founded by former Rep. Gabby Giffords after she was shot in the head and nearly killed while meeting with constituents in Arizona in 2011.

SAMPLE MESSAGES:

From Brady Campaign to Prevent Gun Violence

I strongly support the proposed rule to ensure that individuals who are “engaged in the business” of selling firearms are licensed, thus requiring them to complete background checks for all firearm sales and maintain records of those transactions, and that dealers who have lost their licenses may no longer sell firearms to the public.

A recent study found that more than one in five gun sales in the U.S. are conducted without a background check, amounting to millions of off-the-books gun transfers annually; many of these transactions are facilitated by individuals who profit from the repetitive sale of firearms yet avoid the oversight required of licensed dealers.

This is a public health and safety issue, and I urge the Department of Justice and the Bureau of Alcohol, Tobacco, Firearms and Explosives to finalize the rule in order to prevent further firearm transfers to prohibited purchasers.

From Everytown for Gun Safety

Our background check system was created to keep firearms out of the hands of individuals who are not allowed to purchase or possess them. But loopholes in the system — like the ones that allow unlicensed gun sellers to sell guns online and at gun shows without running background checks on their buyers — undermine it.

That’s why ATF’s proposed rule must be finalized. It will help close loopholes in our background check system that have, for decades, been exploited by bad actors like gun traffickers, straw purchasers and other prohibited persons, including domestic abusers and convicted felons.

I support the proposed rule because it makes clear that firearms dealing can take place wherever and through whatever medium guns are bought and sold — whether at a gun show or at an online marketplace — and that conduct, such as selling guns of the same or similar kind and type, constitutes firearms dealing. Such gun sellers will need to become licensed dealers and, as licensed dealers, run background checks.

More to the point, the proposed rule will save lives. That’s why I support the proposed rule and why I encourage ATF to finalize it.

Another canned message prepared by Everytown for Gun Safety

I support the ATF’s proposed rule (Docket No ATF 2022R-17), which would dramatically reduce the number of guns sold without a background check.

I urge the ATF to finalize this rule as soon as possible. Guns sold without background checks — both online and at gun shows — are a huge source for gun traffickers and people looking to avoid a check. These guns often end up trafficked across state lines, recovered at crime scenes in major cities and used against police officers. This contributes to the gun violence epidemic plaguing our country.

The long-standing lack of clarity around which sellers must become licensed and run background checks has made this problem all the worse.

I support the clear commonsense standard laid out in this rule: Anyone offering guns for sale online or at a gun show is presumed to be trying to make a profit and should therefore be licensed and run a background check on each customer. This rule will save lives and should be urgently finalized.

GIFFORDS

COURAGE TO FIGHT GUN VIOLENCE

 FACT SHEET: FEDERAL REGULATION TOEXPAND BACKGROUND CHECKS

THE PROBLEM

Under current federal law, certain individuals with a history of felony convictions, domestic violence, or involuntary mental health commitments are prohibited from purchasing or possessing firearms. This law is enforced primarily through the National Instant Criminal Background Check System (NICS), which licensed gun dealers, those holding a Federal Firearms License (FFL), are required to contact, either directly through the FBI or indirectly through state or local law enforcement, to determine a person’s eligibility to possess firearmsbefore selling or transferring a firearm to them.

There is, however, a significant loophole that exists when guns are sold by unlicensed individuals. Only those sellers who are required to obtain an FFL through the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) must perform background checks via the NICS system. As a result of this loophole, unlicensed gun sellers frequently sell guns without background checks online, at gun shows, and through unregulated person-to-person sales.

This loophole makes it far too easy for people prohibited from purchasing or possessing guns to circumvent the laws on the books and obtain guns. Up to 80% of firearms used for criminal purposes were obtained fromunlicensed sources, meaning no background check was required. With the rise of social media and the expansion of internet access, new avenues for unlicensed gun sales have opened up via websites like Armslist.This expansion of access has made the background check loophole an even more salient issue, and in fact,nearly a quarter of gun sales in recent years have occurred without a background check.

“ENGAGED IN THE BUSINESS” AND CHANGES MADE BY BSCA

Fortunately, the landmark Bipartisan Safer Communities Act (BSCA) provides a remedy for the above issue. The 1968 Gun Control Act (GCA) mandates that all those “engaged in the business” of selling firearms acquire an FFL. This status triggers federal laws and regulations that licensees must follow, including the requirement that they conduct a background check on potential purchasers. Before the BSCA,the GCA was unclear as to the level of sales activity that distinguishes someone who sells guns occasionally-and is thus not subject to licensing requirements-from someone who is “engaged in the business” of firearm sales and qualifies as a firearms dealer.

The BSCA updated the definition of “engaged in the business.” Now, instead of including only those who sellguns with “the principal objective of livelihood and profit,” the law includes anyone who deals guns “topredominately earn a profit.”

giffords.org

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Reaching Deeper Into the Bottom of the GOP Barrel

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The latest nominee for Speaker of the (barely) Republican-controlled House of Representatives is James Michael (Mike) Johnson, “representing” the 4th District of Louisiana. His official website touts the “7 Core Principles of Conservatism,” the customary blather about the “rule of law,” “free markets,” “limited government,” etc.

Last on the list is “Human Dignity:”

Because all men are created equal and in the image of God, every human life has inestimable dignity and value, and every person should be measured only by the content of their character. A just government protects life, honors marriage and family as the primary institutions of a healthy society, and embraces the vital cultural influences of religion and morality. Public policy should always encourage education and emphasize the virtue of hard work as a pathway out of poverty, while public assistance programs should be reserved only for those who are truly in need. In American, everyone who plays by the rules should get a fair shot. By preserving these ideals, we will maintain the goodness of America that has been the secret to our greatness.

Let’s unpack some of that.

For starters, note that Johnson conveniently picks up the “all men are created equal” from the Declaration of Independence but then, in a classic Republican head-fake, translates “endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness” into “in the image of God.” You will see below why this slight-of-hand is central to who Johnson is.

Here’s what Mike Johnson really stands for:

  • Opposed to abortion access.
  • Opposed to medical marijuana.
  • Opposed to same-sex marriage.
  • Falsely claimed Trump had fully cooperated with the Mueller investigation.
  • Opposed to certification of the 2020 election.
  • Voted to overturn 2020 election result in Pennsylvania.
  • Voted against establishing the national commission to investigate the January 6 attack on the US Capitol.
  • Supported Trump’s 2017 Muslim ban.
  • Supports ending military aid to Ukraine so it can be absorbed by Russia.

[Wikipedia: https://tinyurl.com/3m38bmsx]

So much for the “rule of law” and the “inalienable right” to the “pursuit of happiness.”

Johnson is a religious zealot who appears to lack a basic understanding of the principle of separation of church and state while claiming devotion to the rule of law and the Constitution.

This is the man the GOP now has focused its attention on to elect as Speaker of the House, next in line behind the Vice President to succeed to the powers of the presidency.

 

Ode to the Republican House of Representatives

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Isn’t it rich?
Are we a pair?
Me here at last on the ground
You in mid-air
Where are the clowns?

Isn’t it bliss?
Don’t you approve?
One who keeps tearing around
One who can’t move
Where are the clowns?
There ought to be clowns

Just when I’d stopped opening doors
Finally knowing the one that I wanted was yours
Making my entrance again with my usual flair
Sure of my lines
No one is there

Don’t you love farce?
My fault, I fear
I thought that you’d want what I want
Sorry, my dear
But where are the clowns?
Send in the clowns
Don’t bother, they’re here

Send in the Clowns (Lyrics by Stephen Sondheim)

House Speaker Election– Everything You Need to Know About GOP

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There are reportedly nine candidates now that madman Jim Jordan has been defeated for the third time. Whatever their actual or presumed credentials are for the job, the single telling distinction between them is absolutely clear:

Only two putative GOP Speakers voted to certify the election of Joe Biden

They are:

Tom Emmer (Minn.)

               Austin Scott (Ga.)

The other seven – well, they are pretty much Trumpers.

Interestingly though, all nine voted for Jim Jordan on all three of his failed attempts to get the Speaker spot. https://tinyurl.com/yf255a4n And,

Emmer … offered his support for a lawsuit that would have even more broadly upended the election results. Scott was included on The Washington Post’s list of election deniers running in 2022.

Finally, not to belabor this, do not forget that the Speaker of the House is much more than the default manager of the House-in-Session. The Speaker is next in line to occupy the office of the President following the Vice President.

Thus, if the Republican clowns in the House had elected Jim Jordan as Speaker, he could have succeeded to the presidency if both the then president and vice president died or were incapacitated. Jordan, who has been elected in Ohio’s 4th Congressional District nine times, https://en.wikipedia.org/wiki/Jim_Jordan, brought to Congress credentials as a wrestling coach. As reported in Wikipedia,

Jordan is a close ally of former president Donald Trump. During Trump’s presidency, Jordan sought to discredit investigations into Russian interference in the 2016 election and staged a sit-in to prevent a Trump impeachment inquiry hearing over the Trump–Zelenskyy telephone controversy. After Joe Biden won the 2020 presidential election and Trump tried to overturn the election, Jordan supported lawsuits to challenge the election results and voted not to certify the Electoral College results. He refused to cooperate with the U.S. House Select Committee on the January 6 Attack, which subpoenaed him on May 12, 2022….

 Jordan earned a master’s degree in education from Ohio State University and received a Juris Doctor degree from the Capital University Law School in 2001. In a 2018 interview, Jordan said he never took the bar examination.

Note 1: Jordan’s law school entering class in 2022 had a median LSAT score of 151. The range of LSAT scores is 120 to 180. Jordan’s LSAT score has apparently not been reported.

Note 2: Researchers at the Center for Effective Lawmaking – a joint project between academics at the University of Virginia and Vanderbilt University – rated Jordan as the 202nd most effective Republican in the House of Representatives out of 205 it examined. https://tinyurl.com/3vuf4e26

No wrestlers have accused Jordan himself of sexual misconduct, but four former wrestlers named him as a defendant in a lawsuit against the university. Jordan has denied any wrongdoing, has refused to cooperate with investigations into Strauss and has described his accusers as “pawns in a political plot.”

 As of 2023, Jordan, who has served in the House of Representatives for over 16 years, has never sponsored a bill that later became law.

Jordan is now, apparently, out of the Speaker picture. I laid out some salient facts about him to add gravitas to the situation facing the country as the GOP continues its long journey to find a replacement for the disgraced Kevin McCarthy.

There appears to be a better than 50-50 chance that the Republicans will elect a Speaker who supports the idea that the 2020 election was stolen, that Donald Trump is innocent of the astonishing list of felonious crimes with which he has been charged in four jurisdictions and for which the known evidence of guilt is overwhelming. That person then stands just below the Vice President as a successor to the vast powers of the presidency of the United States.

That is where we are because that is where the Republican Party has brought us.

 

 

Guns In Schools – American Shame

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If you haven’t seen it recently, or ever, you should watch the YouTube video of Jeff Daniels’ answer to a college sophomore’s question: why is America the greatest country in the world? It’s here: https://www.youtube.com/watch?v=z2HKbygLjJs, from a great TV show called The Newsroom, well worth watching in its entirety.

I don’t know whether the data Daniels cites in the excerpt is accurate today but in general terms it likely is. That’s a hard pill for many Americans to swallow. Fear and loathing are rampant throughout the country, especially in the so-called “red states,” where Republicans promote the decline of the United States for political gain but have no solutions to offer except blaming others for what are distinctly American failures.

No better example exists than the data on guns in schools. Guns are seized in U.S. schools each day. The numbers are soaring. https://tinyurl.com/55hxzkm5

More than 1,150 guns were seized in K-12 schools last year

Nationwide, 1 in 47 school-aged children attended a school where at least one gun was found and reported on by the media in the 2022-2023 school year.

One high school student described his school as a “war zone” following the discovery of two guns at school in the first five days of his junior year. Both pistols were loaded.

That student’s experience was typical of “students of every age in every state throughout the school year, a bleak reflection of a society awash in firearms.”

Last school year, more than six guns were seized each day, on average. Nationally, 1.1 million students attended a school where at least one gun was found and reported by the media. Data collection limitations, including the fact that many school districts don’t bother to track the information, make it clear that those figures grossly understate the true magnitude of the danger.

A Washington Post survey of 51 of the country’s largest school systems showed that 58 percent of seizures in those districts last academic year were never publicly reported by news organizations. Those same districts said the number of guns recovered on campus rose sharply in recent years, mirroring the growing prevalence of firearms in many other public places.

In some cases, quick action by other students and school administrators almost certainly prevented mass murders of students and teachers. But reports indicate that some school districts are more concerned about avoiding scrutiny and causing alarm than they are interested in protecting students and school staff.

Police in Golden Valley, Minn., complained in March that middle school officials waited five days to notify them of two boys who appeared to be posing for social media pictures while holding a gun in the school bathroom; a spokesperson for the Robbinsdale Area Public Schools district said officials have worked since then to improve the school-police partnership.

That sounds like, “we take our peoples’ security very seriously. Their safety is our top priority.” Those are probably the most common, and meaningless, clichés in modern American language.

In 51 of the 100 largest school districts, representing 6.3 million students, 515 guns were found during the last school year. Only 42 percent of those seizures were reported publicly. In DeKalb County, Ga., (includes Atlanta) with a 2020 population of 764,382, only two of the 24 guns were reported.

The 47 districts for which The Post was able to obtain five full school years of data saw a 79 percent increase in guns found on campuses over that time frame [past five years]. In many communities, the number of guns found has more than doubled, a trend that mirrors a precipitous rise in school shootings.

While many instances of guns in schools are the result of gross parental negligence, or worse, that is far from the whole story.

The gun brought to Rome High on the fourth day of school was stolen in Alabama. According to media reports, a gun stolen in Las Vegas found its way into the hands of a 16-year-old at a Lawrence, Mass., high school; another 16-year-old brought a gun stolen in Georgia to his Manchester, Conn., high school; in Columbus, Ohio, a high-schooler showed up with a gun stolen in Martin County, Fla.; and in Nashville, a 17-year-old came to school with two loaded pistols in his backpack, one of them stolen out of Madison, Ala. An 18-year-old was arrested at a high school in Ames, Iowa., for possession of a 9mm semiautomatic pistol that was stolen from the center console of a pickup truck in Cape Girardeau, Mo., according to a police report. The teen said he bought the gun from a stranger at a gas station in Missouri, seeking protection, the report said.

While it is tempting to blame the problem in large part on teenage “craziness,” the data indicates that many younger students are involved:

… authorities found guns on at least 31 students age 10 or younger during the 2022-2023 academic year …. As is the case in most school shootings, the majority of those guns were brought to campus by children who could not legally purchase a firearm on their own.

Common Threads

Several common themes leap out from the Washington Post and other reports about kids bringing guns to schools:

  • School administrators are often slow to act and slow to inform parents about incidents.
  • Administrators are sometimes more interested in protecting the school’s “image” than in protecting students and staff.
  • Administrators sometimes refuse to respond to legitimate questions about these incidents, despite their role as public officials with responsibility to protect students and staff.
  • Parents whose carelessness/indifference and/or active support for gun culture are usually not held accountable for the conduct of their children.
  • Kids who bring guns to schools are often sheltered from consequences because they are minors.

That last point raises a bigger question. American society generally is based on the view that minors are not fully accountable for their behavior. This policy is based on the science of brain development and a concern that “immature” behavior” attributed to individuals will haunt them later in life and that this is unfair.

Why, exactly, such accountability is unfair is unclear. Also unclear is why it is more appropriate to be concerned about the perpetrators than about their actual or potential victims, many of whom will be traumatized, possibly forever, by their encounter with a fellow student armed and prepared to kill.

There are other consequences too. Teacher shortages because teachers feel disrespected, unsupported, and endangered. Budget issues arising from lawsuits against school systems that failed to do the right, and difficult, thing when confronted with a gun situation. Distracted students wondering when the next threat will walk into their classroom when they should be paying attention to the lesson. And more.

I urge you to read the full Washington Post story that inspired these thoughts. https://tinyurl.com/55hxzkm5 Every American should be concerned that our submission to the prevailing gun culture has led us to a dark place where young school children must undergo training in case their school is the scene of a shooter. And to a place where school administrators are free to simply refuse to communicate about their failures and their self-interested conduct at the expense of students’ safety.

Teachers in dozens of communities raised similar concerns about school safety after gun incidents last school year. In Harper Woods, Mich., in June, the teachers union accused school officials of trying to cover up an incident in which a student with a gun escaped the school staff and evaded metal detectors; in April, the Massachusetts Teachers Association accused a superintendent of “total disregard for the safety of students and school personnel” after a student posted videos of himself on social media that showed him wielding a gun on campus. The Southbridge, Mass., school system disputed the union’s account and said it was working with police on lockdown drills and other safety procedures.

The WAPO story recounts how students evade security systems and why students are often wary of reporting what they see. Once it becomes clear that the school is more interested in its reputation than in preventing gun violence, most kids are not going to risk being called a “rat” when they report someone who is handled with kid gloves and often back in the school soon after.

The graph below tells the story as well as anything. It does not, of course, measure the trauma experienced by students and staff who managed, by luck or whatever, not to be killed or wounded. This is the price we pay for the American obsession with guns.

One of the comments submitted to the WAPO story argued that the data prove that the “fraction of criminal violators in school populations” is so low, we should stop “propagandizing” about the problem. One response posted said: “Gosh, when you put it that way the blood stains almost fade away…” But, of course, they don’t. Ever.