Category Archives: Law

Trump Confesses

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When you hire a lawyer to represent you, it is presumed that when the lawyer speaks or files pleadings in court on your behalf, he is speaking and/or presenting positions with which you concur. He is, after all and in fact and in law, your representative.

Sometimes, lawyers are forced to make arguments that seem preposterous on their face and are in fact preposterous. They normally do this when they are “out of ammunition” in the form of well-reasoned and at least plausible arguments. They do this when the client is desperate to present a defense when none exists. Those lawyers feel duty-bound to not only the zealous representation that legal ethics required of them, but, one might say, to throw something at the judicial wall and just hope against hope that it sticks.

It is thus with the latest Trump effort to escape responsibility for his treasonous insurrection against the government of the United States. Reports state that Trump’s attorneys have thrown such stuff at the wall in the Colorado case brought by the Citizens for Responsibility and Ethics in Washington (CREW) seeking to bar him from the 2024 presidential ballot. https://www.rawstory.com/trump-wont-support-constitution/

Recall that the Fourteenth Amendment to the U.S. Constitution prohibits anyone who has “engaged in insurrection” against the United States from holding a civil, military, or elected office unless a two-thirds majority of the House and Senate approve. I quote the Rawstory article:

Trump’s lawyers are arguing that the specific language of the Constitution argues that this requirement only applies to people in offices who are bound to “support” the Constitution — and the presidency is not one of those offices.

“The Presidential oath, which the framers of the Fourteenth Amendment surely knew, requires the President to swear to ‘preserve, protect and defend’ the Constitution — not to ‘support’ the Constitution,” said the filing by Trump’s attorneys. “Because the framers chose to define the group of people subject to Section Three by an oath to ‘support’ the Constitution of the United States, and not by an oath to ‘preserve, protect and defend’ the Constitution, the framers of the Fourteenth Amendment never intended for it to apply to the President.”

My guess is that Trump’s lawyers don’t expect the trial judge to buy this nonsense. They are instead laying the foundation for an appeal, eventually, to the U.S. Supreme Court where, they hope, the “originalist” thinkers led by Clarence Thomas will “strictly construe” the Constitutional language and hold that “support” is not the same as “preserve, protect and defend” such that the Framers left a gaping hole for people like Trump to walk through while toppling the very structure the Framers worked so hard to establish.

But, you ask, why is this argument nonsense? Here’s why.

We could go on with this for hours, but I think it suffices that Oxford Languages (the world’s leading dictionary publisher, with over 150 years of experience creating and delivering authoritative dictionaries globally in more than 50 languages) has solved the puzzle for us.

“Preserve” is defined as “maintain (something) in its original or existing state.” Synonyms include: conserve, protect, maintain, care for, take care of, look after, save, safeguard, and keep. Antonyms include: damage and neglect.

“Protect” is defined as “keep safe from harm or injury.” Synonyms include: keep safe, keep from harm, save, safeguard, shield, preserve, defend, cushion, shelter, screen, secure, fortify, guard, mount/stand guard on, watch over, look after, take care of, care for, tend, keep, mind, afford protection to, harbor, house, hedge, inoculate, insulate. Antonyms: expose, neglect, attack, harm.

Finally, “defend” means “resist an attack made on (someone or something); protect from harm or danger.” Synonyms: protect, guard, safeguard, keep from harm, preserve, secure, shield, shelter, screen, fortify, garrison, barricade, fight for, uphold, support, be on the side of, take up cudgels for, watch over, be the defender of.”  The antonym: attack.

Being my discerning readers, I know you saw “support” in the third list as a synonym of “defend.”

Even if “support” were not listed there, it is defined as “enable to function or act” and is a synonym of: help, aid, assist, contribute to, back, succor, champion, give help to, be on the side of, side with, favor, abet, aid and abet, encourage, ally oneself with, stand behind, stand up for, defend, promote (among others).

One “rule” I always tried to follow in advocacy when I was practicing law was: don’t be stupid. Trump’s lawyers must be utterly desperate to put forward the argument that the President of the United States is not obligated by his oath of office to “support” the Constitution of the United States. Of all the implausible positions advanced for him and his  many co-indicted co-conspirators, this one take the cake.

The word legerdemain leaps to mind: deception; trickery, chicanery, skulduggery, deceit, deception, artifice, cheating, dissimulation. All seem to apply nicely to Trump’s argument. I particularly like “skulduggery” but that’s just me.

 

 

 

Only a Matter of Time Before Firearms Disaster On a Plane

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“Those who cannot remember the past are condemned to repeat it.”

You’ll be thrilled to know that the Transportation Security Administration has released its first-half 2023 firearm interception numbers. https://tinyurl.com/vtnnazfd You will not be surprised, I suspect, to learn that the 3,251 total interceptions, an average of 18 firearms per day (of which more than 92 percent were loaded) was a 6.5 percent increase from the first half of 2022 (3,053 interceptions; 86 percent loaded). TSA is expecting a year-end increase over last year’s record of 6,542.

Granted that 3,251 is a miniscule percentage of the total domestic passenger enplanements during the first half of 2023 (396,154,000), the fact remains that the discharge of a pistol in a pressurized confines of a cruising airplane could have catastrophic consequences for everyone on board and possibly many more on the ground. So far, we’ve been fortunate that the security systems at airports, and the people who staff them, have detected so many weapons before they were taken on board an aircraft. Whether the 3,251 represents all such weapons, however, we can only hope, but we can’t be sure.

In fact, there is a recent report of an on-duty flight attendant who was arrested at Philadelphia International Airport trying to take a loaded pistol onto a plane. https://tinyurl.com/3fxscr3k The weapon in this case was a loaded .38 Ruger semiautomatic handgun. It was in her purse. With five rounds in the magazine.

The article does not specify which of the many Ruger semiautomatic handguns she carried, but assuming it was among the less expensive, it weighed just under 10 oz with a barrel length of less than 3 inches. The online ads describe it as “highly concealable.” Great. Holds 6 rounds in the magazine and one in the chamber. (In this instance no round was in the chamber, a minor inconvenience if quick shooting were at hand).

Further,

The arrest comes just two weeks after an airport concession worker was stopped trying to take a loaded handgun into the secure airside area of the airport. The worker claimed he forgot the gun was in his bag.

“I forgot I had the gun in my … purse, briefcase, pocket” is the standard excuse offered when TSA detects these items which, in the context of an aircraft in flight, could easily become a “weapon of mass destruction.”

The article says the flight attendant faces firearms charges under Pennsylvania law and “a potential federal financial penalty” related to trying to take a gun through a TSA checkpoint.

And there lies the issue: a “potential financial penalty.” And in many states, no charges would lie under local gun laws because they basically don’t have any.

When passengers bring firearms to the TSA security checkpoint, TSOs contact local law enforcement to check the contents of the carry-on bag, safely unload and take possession of the firearm and process the passenger in accordance with local laws on firearms. TSA will impose a civil penalty up to $14,950, eliminate TSA PreCheck eligibility for five years and may require enhanced screening.

Some passengers will be arrested or cited, depending on local laws on firearms.

Not good enough. Some, but not all?  Why not all?

Then, there’s this:

Aircrew can often skip most security screening at US airports as part of the ‘Known Crewmember’ initiative ….

The Association of Flight Attendants (AFA) issued an urgent circular earlier this year warning crew members not to break KCM rules and to be particularly mindful of not accidentally trying [??] to take a firearm through the security checkpoint.

In some cases, the union warned that flight attendants had managed to leave the United States on international trips with a firearm in their luggage only for it to then be discovered as they went to return to the US resulting in hefty fines and even imprisonment.

According to another report, the flight attendant caught in PHL lives in Arizona. https://tinyurl.com/ms36hpmkOne wonders how the pistol came to be with her in PHL if it wasn’t flown there from Arizona. That article notes: “It’s possible that the flight attendant may lose her job here, but generally the consequences for being caught with a gun at a security checkpoint are quite minimal (at least compared to what they’d be in other countries).

A recent report in CNN https://tinyurl.com/3y6tmx4e notes that a June 20023 IATA report shows that “there was one unruly incident reported for every 568 flights in 2022, up from one per 835 flights in 2021.”

Thus, we have reports of deranged passengers fighting with other passengers and crews on in-flight aircraft coming in weekly combined with a multitude of pistols, the vast majority being loaded, being stopped almost literally at the boarding door (and apparently some getting through) – the perfect recipe for an in-flight catastrophe.

We know from statistical principles that even though the chances of an event may be very small, such low-probability events do happen. What will we say when an in-flight disaster brought on by a loaded pistol in-flight brings down an aircraft?

Here’s what: “Oh my, we will undertake a thorough examination of our security protocols because, you know, your safety is our top priority, and we take it very seriously.” That, by the way, is probably the most-repeated and least meaningful cliché in the English language. It is standard public relations formula for after-the-fact, but readily foreseeable, disaster events.

Two days ago, the local news outlet, Patch, reported that a VA Man Blames Wife For Loaded Gun In Carry-On Bag At Reagan National; the man

told officials that she packed his carry-on bag and did not know that he already had his loaded gun inside,” TSA said.

What the article does not discuss is why the gun was already in the man’s carry-on bag. Had he succeeded in taking it on another flight previously and just left in the bag for his next flight when his unsuspecting wife dutifully packed his bag for him?

In a classic example of understatement, TSA’s security director for National Airport was quoted,

It is disappointing to continue to see travelers carrying their loaded guns to our security checkpoints.

Disappointing, yes, indeed. But, more accurately,

There is no reasonable excuse for not knowing you are carrying an unsecured, loaded firearm in your bag. It presents a danger to everyone around you.

Here are the reported firearms captures at National Airport alone:

The current one is the sixth capture in the last three weeks.

What does this tell you? Answer: the current approach is not working and the risk to passengers on planes and people on the ground is growing.

The solution, I suggest, while imperfect, is to have an absolute policy of strictest law enforcement against every person caught with firearms in their carry-on luggage. Every one of them should be prosecuted under federal law and visited with the maximum penalty. Then, maybe, just maybe, gun owners would begin to take the rules seriously.

We can, of course, expect Second Amendment challenges to such an approach. The “originalist” argument will be that that when the Constitution was adopted there was no general prohibition against carrying firearms on planes, therefore, we cannot enforce one now. I don’t have to explain how ludicrous that argument is, so I won’t bother.

Who Was Samuel Johnson?

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Doesn’t much matter. If you must know, Wikipedia has an extensive article on his life as “poet, playwright, essayist, moralist, literary critic, sermonist, biographer, editor, and lexicographer.” https://en.wikipedia.org/wiki/Samuel_Johnson That’s a lot of jobs for one life.

One of Johnson’s most well-known attributed quotes is: “Depend upon it, sir, when a man knows he is to be hanged in a fortnight, it concentrates his mind wonderfully.”

I thought of that when reading the reports that Jenna Ellis, an unknown lawyer until she joined forces with Donald Trump to overthrow the government and install him as president/king/despot/rule-for-life, had turned on her liege lord. And make no mistake, overthrowing the government and anointing Trump was the plan.

Of course, it failed. Miserably. Not only was the incitement thoroughly documented on video and otherwise, but the attack itself was also filmed by multiple people, including some of the participants themselves in one of the great self-owns of all time. One of the best videos of the attack was produced by the New York Times:  https://tinyurl.com/4btuf4y5

For her efforts, Ms. Ellis has earned the distinction of being indicted, along with Trump and many others, in Georgia. For reasons currently unknown, she was not indicted by the Special Counsel Jack Smith but that could still happen.

Reports now indicate that Ms. Ellis, like some of the other insurrectionists, has had a change of heart. Jenna Ellis Denounces ‘Malignant Narcissist’ Trump, Publicly Distances Herself From Former President,https://tinyurl.com/km4z7v8b:

I simply can’t support him for elected office again. Why I have chosen to distance is because of that, frankly, malignant narcissistic tendency to simply say that he’s never done anything wrong.” The most notable component of Ellis’ remarks was her criticism of Trump supporters. She claimed that some of them had elevated Trump to the level of “idolatry” and were prioritizing their devotion to him over their dedication to conservative ideas, the Constitution, and the country. She challenged Americans, particularly conservatives and Christians, to reconsider their voting and allegiances.

… And the total idolatry that I’m seeing from some of the supporters that are unwilling to put the constitution and the country and the conservative principles above their love for a star is really troubling. And I think that we do need to, as Americans and as conservatives and particularly as Christians, take this very seriously and understand where are we putting our vote.

And in the Guardian, it is noted that “in 2020 Ellis rose from relative obscurity to become part of what she called an “elite strike force team” working to overturn Trump’s defeat by Biden.” https://tinyurl.com/bsk4rjyp

Covering all her bases, Ellis, while rejecting Trump as a candidate to vote for, hastened to assure him that, “I have great love and respect for him personally.” Trump, being the great transactionalist that he is, will not likely find such professions of affection meaningful if she’s going to withhold her vote.

Reading those reports reminded me of some of the defenses offered by Proud Boys and others like them who conspired to pull off the insurrection and have been sentenced to long prison terms.

One popular one was “I was just following the direction of my commander-in-chief,” an apparent reference to the Constitutional provision (Article II) that “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States….” The problem with that defense, of course, was, among other things, that the Proud Boys were not inthe Army, Navy, or a Militia of the any state called into the actual service of the United States.

But, as the Samuel Johnson quote reminds us, the mind concentrates when faced with hanging and the Proud Boys being sentenced to decades in prison is the functional equivalent of being hanged. The defense has been uniformly rejected by the courts, as it should be.

As for Jenna Ellis’ sudden “awakening” to Trump’s “malignant narcissism,” her statements smack of performative timing inspired by being indicted for multiple felonies for which she has few, if any, realistic defenses. If she had been awake during the months leading up to January 6, she would already have been aware that Trump a cancer on American democracy. Many of the tear-shedding insurrectionists in their pleas for leniency have, once sentenced, reverted to type, and continued to declare their allegiance to Trump and the false-flag “stolen election” nonsense. One can’t help wondering if Ellis won’t do the same thing once she knows just how high her hanging will be.

Shame on the New York Times

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The comments are closed, or I would have posted this in the New York Times following the frontpage article that somehow the Times believes is part of “all the news that’s fit to print,” the legendary creed it places on every print edition. The article by Katie Rogers, “a White House correspondent, covering life in the Biden administration, Washington culture and domestic policy” since 2014, is entitled, The Peril in Biden’s Inability to Say No to Son. The online version is titled differently: President Biden Keeps Hunter Close Despite the Political Peril. https://www.nytimes.com/2023/09/10/us/politics/joe-biden-hunter-relationship.html Both titles imply that Hunter Biden somehow controls or exerts undue influence over the President.

I have searched this 2,400-word piece for “news,” something that was not previously reported and widely known about Hunter Biden and his problems along with President Biden’s continuing struggle to support his son and hold his family together following tragedy after tragedy. I searched again and again. Nothing. No news. Nothing not known before.

The article begins with the collapse of Hunter’s Justice Department plea deal, leading the President to a state of “sadness and frustration” according to “several people close to him” and “more than a dozen” who spoke only anonymously. [I counted at least 7 references to unnamed sources for the various slights and jabs laced through the piece.] Predictably, this will lead to renewed Republican attacks that, even though lacking any factual basis, Ms. Rogers asserts leave “no doubt that Hunter’s case is a drain, politically and emotionally, on his father and those who wish to see him re-elected.” The link is to a CNN article about a poll asserting that, largely along partisan lines, a majority of Americans think President Biden was inappropriately involved in Hunter Biden’s business affairs. Yet, later in the article,

Mr. Biden does not believe that Republican attacks on his son will hurt him with voters as he runs for re-election in 2024, and there is data to suggest that is largely true, at least for now. A June poll by Reuters and Ipsos found that 58 percent of Americans would not factor Hunter Biden into their decision in the presidential race.

“At least for now.” Of course, in case you missed it, Ms. Rogers wants to be sure you don’t think this sad story isn’t going to affect the election.

And when it comes to polls, you can pick your poison. See Jennifer Rubin’s excellent piece on polling in Sunday’s Washington Post. I don’t write about polls. You shouldn’t bother with them, either.https://tinyurl.com/mpj94udv

The Times piece then turns to the family history, Hunter, Beau, all of it, 830 words, more than a third of the entire article, rehashing Hunter’s descent into addiction.

The article then goes subtle as a sledgehammer to the head. It describes Hunter traveling with the President on Air Force One. The piece notes that “No hard evidence has emerged that Mr. Biden personally participated in or profited from the business deals or used his office to benefit his son’s partners while he was vice president.” It’s likely true, of course, as the article suggests, that Hunter used his father’s prominence to create the “illusion” of access, but that is on Hunter, not on the President. And the “revelation” is not new or surprising that someone in Hunter’s position and condition would try to exploit his “connections.”

The article then turns back to Hunter’s life in California and his continuing struggles, another 357 words to be sure we know what a problem Hunter is. Like father like son. You know the cliché. If Hunter is bad, Joe Biden must also be bad.

Then, the final knife in the President’s back:

Last month, when asked by reporters at Camp David about the special counsel investigation into his son, Mr. Biden’s response was terse. “That’s up to the Justice Department,” Mr. Biden said, “and that’s all I have to say.” Mr. Biden then left Camp David and rode aboard Air Force One to Lake Tahoe for vacation. Hunter joined him there.

That time, the president’s son flew commercial.

End of article. Very cute.

What possible purpose in “all the news that fit to print” could this piece serve other than to remind readers yet again that (1) Hunter Biden has a lot of problems, (2) Republicans are trying to pin those problems as evidence of corruption by the President (because, you know, the Republicans are supporting a twice-impeached, four-time felony indicted man named Trump to lead the country). And, oh yes, (3) the President loves his son despite his problems but cannot solve those problems, yet still supports him. No news. Zero. Yet, the Times puts it on the Sunday front page and devoted an entire page, replete with photos, inside the paper.

Why? The continued undermining of President Biden by publishing this no-news hit-piece is obvious and obnoxious. The editors of the New York Times should be ashamed that they published this attack and, worse, prominently featured it on the front page of the Times where it would garner the most attention.

OMG – Trump’s Lawyers!!!

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Since the New York Post is only a hair’s breadth away from a super-market tabloid rack, I never know whether what is published by it is satire, just plain false or merely negligent journalism. With that caveat, I have seen the remarkable story of the Shokin affidavit in the NY Post’s reporting on August 29: DC judge apparently strikes down Viktor Shokin affidavit from Trump Jan. 6 case https://tinyurl.com/4wa6rvnf

One of the many striking aspects of this report is the use of “apparently” – if the author read the judge’s order, why is this qualifier used? In any case, the rejection by Judge Chutkan was also reported by the Washington Examiner. https://tinyurl.com/y7dpdftk  and Newsweek.  https://tinyurl.com/4whnh6ne Conclude what you will.

I tracked down the docket listings for the six orders rejecting various filings by non-parties to United States v Trump and found this:

LEAVE TO FILE DENIED-Motion of D.A. Feliciano for Leave to File Amicus Curiae Brief Supporting Neither Plaintiff Nor Defendant as to DONALD J. TRUMP.

LEAVE TO FILE DENIED- Motion for Judicial Notice Affidavit of Victor Shorkin [sic] as to DONALD J. TRUMP.

LEAVE TO FILE DENIED-Motion to Intervene as to DONALD J. TRUMP

LEAVE TO FILE DENIED-Petition for a Writ of Habeas Corpus as to DONALD J. TRUMP

LEAVE TO FILE DENIED- Galaxy Bar Association as to DONALD J. TRUMP

LEAVE TO FILE DENIED- Amicus Curiae in Support of Donald Trump as to DONALD J. TRUMP

And finally, but no less curiously: LEAVE TO FILE DENIED- Moton of Former Judges and Senior Legal Officials for Leave to File an Amicus Curiae Brief in Support of Government Proposed Trial Date and Schedule as to DONALD J. TRUMP

As to each document the notation from Judge Chutkan reads:

This document is unavailable as the Court denied its filing. Although Courts have in rare instances exercised their discretion to permit third-party submissions in criminal cases, neither the Federal Rules of Criminal Procedures nor the Local Rules contemplate the filing of amicus curiae briefs. At this time, the court does not find it necessary to depart from the ordinary procedures course by permitting this filing.

Who are these people?

D.A. Feliciano does not come up in a Google search.

I found one reference to the Galaxy Bar Association on Twitter (now X or something): “Tomi T Ahonen With Galaxy Bar Association @ tomiahonen. His X bio reads: Author, consultant, motivational speaker. Biggest social media slut in mobile. A mAd vidiot, F1 fan, globetrotting digital gypsy 007 wannabe. The T Dawg.”  He is apparently no fan of Trump.

The most interesting filing rejected by Judge Chutkan purportedly was from Viktor Shokin, former Ukrainian prosecutor fired for corruption in 2015-2016. Since the actual filings are unavailable, it seems we will not learn whether the Shorkin [sic] filing (misspelled in the docket listing) was from the real Viktor Shokin or someone else.

However, if it wasn’t the real Shokin, it’s mighty odd that Trump’s attorneys refused to comment. You would expect them to want to distance themselves and Trump from fake docket filings. There is an implication here, speculative I admit, that they knew about and perhaps even procured the Shokin filing. The filings and their summary rejection by the judge did serve Trump’s interests by affording a ready excuse for the NY Post and Washington Examiner to dredge up the entire collection of conspiracy claims about the Shokin firing and the still unproven claims of bribes taken by then Vice President Biden. Recent fact-checking by the Washington Post continues to undermine the Republicans’ obsessional claims about Biden family corruption, https://tinyurl.com/47au99hx

The other rejected filings show no names in the docket listing, so we’ll not know who filed those as well. At some point not too far down the road, however, I expect Judge Chutkan is going to call the question on this garbage. The filing of false and/or disingenuous requests for court action by fake or anonymous “persons” consumes court resources and is sanctionable. Trump and his lawyers better be careful. Judge Chutkan has made it clear she’s not fooling around and is not going to be played by Trump and his lawyers.

A Group of Election Pundits Walked Into a Bar ….

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And they began to debate the Republican debate and, just like the real debate, they agreed on almost nothing of importance.

After reading several “expert” analyses of the debate, it’s clear the “experts” are as uncertain as the candidates. Not surprising, I suppose, given that this was the first debate and Trump, the most prominent criminal in American political history, decided to debate from another location where he could not be called to account for his endless lies, incompetence, and criminality.

Speaking of which, most of the Republican “contenders” did agree on one thing: if Trump wins the nomination, they’ll support him against Joe Biden. There is little doubt that if George Washington and Abraham Lincoln were to rise from their graves and run as a Democratic ticket, the Republican contenders would support Trump for president over them. Trump’s hold on these people tells you all you need to know about this collection of losers. They will say nothing to offend the MAGA crowd that, perfectly happy with a fascist criminal like Trump, will determine the Republican nomination. Even Mike Pence, who has “boldly” observed the obvious – that Trump had demanded he raise Trump’s ambition over the Constitution — raised his hand when asked if he would support Trump as the nominee.

Profiles in courage, these are not.

One of the more substantive treatments of the debate was produced by Vox.com, seen in full at https://tinyurl.com/2bw44t8y. The author noted that the early part of the debate was a simulacrum of a Republican-style debate from yesteryear in which issues like abortion bans (they all want to control women’s bodies and health decisions, the reality of climate change (they all agree with Trump that it’s a hoax), urban crime (we need more guns), K-12 education (education is for libtards – ban the books!), immigration (furriners, keep ‘em out), the Russia-Ukraine war (appease Putin with Ukraine’s territory – communism bad, Putin OK), and the rise of China (COVID, the gift that keeps on giving).

The Vox view was that an absent Donald Trump still won the debate. The moderators, despite their Fox “News” credentials, also came in as losers (they always lose control of “debates,” apparently even when Trump is absent–remarkable).

How any of these folks expect to win much support from the MAGA crowd, or indeed any remaining “Republicans,” if they’re not willing to say anything bad about the MAGA love child remains a complete mystery. Is this just some kind of “show” designed to fool people into thinking the Republican Party is legitimate and has real options in its ranks to the fascism promoted by Trump? It’s a mystery. Seriously, why bother going through the motions when anyone there with a plausible case to make (?) is terrified of speaking ill of the poll leader?

As noted in the USAToday report, https://tinyurl.com/34bt8suy, Vivek Ramaswamy, the other billionaire candidate (do we need another billionaire president??), called Trump “the best president of the 21st century.” One positive thought about Ramaswamy: if he became president, the aliens hanging out at Area 51 would break out and immediately head back into outer space, never to return to what will remain of Earth after its habitable phase ends at the hands of climate change (I know, I know, climate change is the Democrats new hoax – Trump said so and therefore it must be true, nothing to worry about, move along).

A clear example of what we could expect in the way of logical thinking from a President Ramaswamy may be found in this quote:

Your claim that Donald Trump is motivated by vengeance and grievance would be a lot more credible if your entire campaign were not based on vengeance and grievance against Donald Trump.

Think about that for a moment: Trump can’t be “motivated by vengeance and grievance” because their campaigns are based on “vengeance and grievance against him.”

But then, of course, the great moralist Mike Pence scolded the only woman on the stage regarding a national abortion ban by offering this beauty: “consensus is the opposite of leadership.” What he meant to say was “when I’m president, I won’t care what people think; I’ll tell you female hussies what to do and you’ll do it or else.”

All in all, it was a rough night for rationality. And history, as always in Republican circles, took a back seat to ideology. While there was minority support for continuing to help Ukraine resist Russian aggression, there was much sentiment for the old “America First” claptrap: appease Russia with a big piece of Ukraine and hope the Russian Bear’s appetite for conquest is sated. Isolationism in another wrapper. It has never worked but, hey, Republicans need to have something to say, so ….

What’s left of the Republican Party thus has only this to offer: a multiply-indicted criminal lunatic or one of a cast of confused, ignorant wannabes who haven’t got the courage of their, or anyone’s, convictions to challenge the lunatic. Elect one of these beauties and it’s game over.

The Presumption of Innocence

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With all the Republican handwringing about Trump’s multiple indictments and efforts to interfere with the administration of justice (including defunding the Special Counsel’s office – to be covered in separate post), it may be useful to consider what the “presumption of innocence” means.

Some people appear to believe that the presumption of innocence has some meaning outside the courtroom and that a person cannot be “guilty” when “presumed innocent. That belief is wrong. The presumption is a legal process concept not found as such in the Constitution but implied by the right to a fair trial. The Sixth Amendment provides:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

The practical result of those words is that the accused cannot be convicted, i.e., formally found “guilty” of the alleged crimes without a trial and process that complies with the Sixth Amendment and other applicable sections of the Constitution and laws. But that does not mean that the accused is “innocent.” It means that in court, the accused enjoys the protections associated with “fair trial” at the end of which a decision of “guilt” or “innocence” will be made. It means he hasn’t been found guilty yet. This may seem like a “dancing on the head of a pin” issue, but Trump’s acolytes make much of it and the media constantly repeat it.

Being “presumed innocent” doesn’t mean you are innocent. It means you haven’t yet been found guilty by the proper process. If you are not guilty, you cannot be kept in jail pending trial unless some limited conditions are met and appropriate, evidence-based findings are made. These include being a flight risk. Or a threat to witnesses.

So, Donald Trump may be “presumed innocent” but he is not “innocent.” No one, even his most ardent sycophantic idolizers, has argued that the facts alleged in the four criminal indictments against him are untrue. Nor could they make credible arguments to that effect. Instead, they deflect and distract with unproven and unprovable claims that the various governments that charged Trump have been “weaponized” for purposes of political revenge, or to keep Trump out of the 2024 race, or Trump shouldn’t be held accountable because others for whom no meaningful evidence of criminal conduct was ever brought forward have not been charged with crimes. Or or or or something anything, look a flying squirrel, look a UFO!

Trump’s only defense is delay. On the merits, on the facts, he is dead in the water. And yes, yes, he has the legal right to ask the state courts to remove the cases to federal court [all should be denied] and the legal right to ask that trial dates be put off to 2050 [denied].

Yes, Trump has us right where we want him. American justice is painfully slow, but Trump’s standard playbook is toast. The only real question is how long this is going to take.

One other thing. Various of Trump’s political allies are trying to have Jack Smith’s Special Counsel office defunded as a means of stopping the prosecution. In Georgia, efforts are under way to impeach or otherwise halt the prosecution by Fanni Willis. I believe all of these efforts constitute obstruction of justice, and it is past time for the governments involved to say so. Republicans in Congress have no business interfering with a criminal prosecution any more than they could pass a law saying that prior conduct of a particular individual, criminal at the time, was retroactively no longer criminal. The Republican Party has lost its claim to being the party of “law and order.”

Governor DeSantis – Herald for a Second Dark Age

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Way back when, a herald was a man (of course) who made public pronouncements, often on behalf of a king. He was the “bringer of news,” as it were. Also, way back when, we had the Dark Ages, a term apparently disfavored now, but still in use to signify a period of intellectual and cultural decay in the Middle Ages (roughly the 5th through 10th centuries). Then came the Renaissance and Scientific Revolutions leading to the Enlightenment, roughly the 17th & 18th Centuries, characterized as including,

a range of ideas centered on the value of human happiness, the pursuit of knowledge obtained by means of reason and the evidence of the senses, and ideals such as natural law, liberty, progress, toleration, fraternity, constitutional government, and separation of church and state.

Western Europe and the United States (born in 1789 with ratification of the Constitution) were in the ascendancy and eventually the U.S. became one of the world’s so-called superpowers. In the U.S. freedom of expression, intellectual disputation and many other forces of democracy and personal freedom flourished on and off, at least compared with what came before and what was going on in most other countries.

Democracy as practiced here and in most other countries that have it (not many) is a rough and tumble messy affair. Many people have disparate ideas about what constitutes the good life, moral behavior and just about everything else. But underlying all the chaos was, we have believed, the underlying agreement that it was ok to have disparate ideas as long as everyone was treated with some measure of tolerance and respect. It was, in short, okay to disagree.

And, to seal the deal, the U.S. Constitution makes clear in the very first Amendment after initial adoption that “freedom of speech” is among the five most prized freedoms we have in this country: (the full five are freedom of speech, press, petition, assembly, and religion).

The governor of Florida, Ron DeSantis, nicknamed DeathSantis because his policies during the COVID pandemic almost certainly led to the unnecessary deaths of many thousands of Floridians, sees things differently now that he wants to be president of the United States. His path to glory lies through the delusional mass of Trump acolytes, and DeSantis is fine with catering to their every fear and bigotry if it paves his path to power.

Thus, we have the spectacle of DeSantis opposing the use of Advance Placement courses that cover topics he, on behalf of the STATE, finds objectionable. The topics in question? Well, of course, it was the new AP African American studies course.

The state education department, based on its view of preliminary documents, declared in January that the African American studies course “lacks educational value.”  [https://wapo.st/3nihZ92]

Of course, Florida’s governor doesn’t want Florida’s students to learn about African American history. He’d rather put Florida students at a competitive disadvantage against other states’ kids in the highly competitive arena of college education. Keep ‘em ignorant and in Florida. That’s the ticket.

But to prove it’s not just about bigotry, DeSantis suggested at a press conference that he had problems with allAP classes in Florida schools. These long-standing programs cover many subjects, including math, science, social sciences, humanities, languages and more. In fact, some AP courses were being offered a hundred years ago when I was in high school. Who knew what terrible consequences would result from having educated students, steeped in history and the rest?

The Washington Post reports that more than 199,000 Florida students enrolled in AP classes in 2020-21. Some 366,000 AP tests were given in Florida in 2021, more than in any other state except Texas (527,000) and California (683,000). Florida’s students must think these courses are valuable.

But, no worries, the state government under DeSantis will straighten them out:

The state Department of Education contends that the class is “inexplicably contrary to Florida law.” A new education law championed by DeSantis requires lessons on race be taught in “an objective manner” and “not used to indoctrinate or persuade students to a particular point of view.” Some education advocates and teachers say the law is so broadly framed that it is having a chilling effect on the teaching of Black history.

The state Education Department, under the governor’s thumb, listed “concerns” in the curriculum, including topics covering “Intersectionality and Activism,” “Black Feminist Literary Theory” and “Black Queer Studies.”

“Now who would say that an important part of Black history is queer theory?” DeSantis said at a news conference this week. “That is somebody pushing an agenda on our kids.”

There are indications that the College Board is considering modifications to the AP curricula to mollify DeSantis. A Florida Department of Education spokesman was quoted to claim that “Critical Race Theory, Black Queer Studies, Intersectionality, and other topics … violate our law.” What law that is remains something of a mystery, but it seems clear that the current government of Florida wants to keep its students ignorant of subjects that are mainstream issues in America today. Ignorance, the saying claims, is bliss.

This article from January 2023 recounts much of the controversy. https://www.washingtonpost.com/nation/2023/01/25/desantis-african-american-studies-black-history/

Here are a collection of articles discussing the DeSantis fascist impact:

Florida teachers strip classroom shelves of books in response to DeSantis ban https://tinyurl.com/bderbwmk

Florida GOP Senate advances bill to revoke Disney’s special tax status https://tinyurl.com/mtn7xv8j

DeSantis takes on Disney in a culture war with national implications https://tinyurl.com/4f3m35j5

DeSantis signs bill requiring survey of Florida students, professors on their political views https://tinyurl.com/4fkm9tvu

‘Goes beyond ignorance’ Historians slam DeSantis’ claims about American slavery https://www.alternet.org/2022/09/ron-desantis-2658332899

OpinionBeware, DeSantis is as much a threat to America as Trump  https://tinyurl.com/5n8xb29y

DeSantis pushes to permanently ban Covid-19 mandates in Florida https://www.cnn.com/2023/01/18/politics/desantis-covid-policy-florida/index.html

Florida, Missouri tell Justice Department voting monitors to stay outside polling places https://tinyurl.com/zjxn2cj2

Disney World halts vaccine requirement for workers after Florida restricts employer mandates https://tinyurl.com/bs7a6fbk

University of Florida bars faculty members from testifying in voting rights lawsuit against DeSantis administration https://tinyurl.com/bdhncjus

Ron DeSantis Is Getting His Mask Advice From A Psychiatrist Pushing Ivermectin https://tinyurl.com/mr3mhsu4

In Florida, DeSantis cut jobless aid just as virus began terrifying new wave https://tinyurl.com/2mrd9vm4

In push against ‘indoctrination,’ DeSantis mandates surveys of Florida college students’ beliefs https://tinyurl.com/2eypzdp4

DeSantis says he will pardon Floridians charged with violating pandemic rules: ‘They’ve been treated poorly’ https://tinyurl.com/4rrfzy4b

YouTube removes video of DeSantis coronavirus roundtable https://tinyurl.com/2rnh4jak

Coronavirus ravaged Florida, as Ron DeSantis sidelined scientists and followed Trump https://tinyurl.com/2p977ps6

The College Board Strips Down Its A.P. Curriculum for African American Studies https://tinyurl.com/2kfsakw8

The essence of the DeSantis phenomenon is that he is trying to out-Trump Trump to siphon Trump’s most deranged supporters and get himself elected president. It’s a fool’s errand, but DeSantis is determined. In the process, Florida will be a place where ignorance is valued over knowledge and, ironically, “political correctness” right-wing style will become essential to electoral success. At least unless and until the people of Florida wake up to the reality of how their national standing is going to be undermined by the arrival of the new Dark Ages in their state.

Is Trump Disqualified?

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The New York Times reports that:

Two prominent conservative law professors have concluded that Donald J. Trump is ineligible to be president under a provision of the Constitution that bars people who have engaged in an insurrection from holding government office.

https://tinyurl.com/yh38rjyd

Oh, Lordy, I wish they were right.

But are they?

The NYT article says:

The professors are active members of the Federalist Society, the conservative legal group, and proponents of originalism, the method of interpretation that seeks to determine the Constitution’s original meaning.

Upon reading that, my first thought was Groucho Marx’s infamous saying that, “I don’t want to belong to any club that will accept me as a member.” But I digress. I do not adhere to such absolutist thinking about most things, and I suspect there’s a club somewhere that I might want to join, though whether there is one that would have me is another question for another day.

Returning to my new-found idols (if and only if they’re right) in the Federalist Society, they summarize their conclusion this way:

Donald Trump cannot be president — cannot run for president, cannot become president, cannot hold office — unless two-thirds of Congress decides to grant him amnesty for his conduct on Jan. 6.

Affirming what I and many others have been saying since at least January 6, 2021, the esteemed authors of a forthcoming law review article state there is:

“abundant evidence” that Mr. Trump engaged in an insurrection, including by setting out to overturn the result of the 2020 presidential election, trying to alter vote counts by fraud and intimidation, encouraging bogus slates of competing electors, pressuring the vice president to violate the Constitution, calling for the march on the Capitol and remaining silent for hours during the attack itself.

“It is unquestionably fair to say that Trump ‘engaged in’ the Jan. 6 insurrection through both his actions and his inaction,” ….

Abundant evidence. Yes. Unquestionably fair. Without a doubt, reasonable or otherwise.

But is saying it enough? What about innocent until proven guilty, etc. Right to a fair trial. All that.

The relevant sections of the 14thAmendment to the Constitution state:

No person shall … hold any office, civil or military, under the United States … who, having previously taken an oath, … as an officer of the United States … to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

The central question is, I think, whether the provision is self-executing or requires a judicial finding that the person in question has engaged in insurrection, etc. The least relevant question is whether Congress would give Trump a pass. Two-thirds of “each House” means what it says (originalists are stuck with that) and that’s not happening.

According to the Times, the article concludes that:

essentially all of that evidence pointed in the same direction: “toward a broad understanding of what constitutes insurrection and rebellion and a remarkably, almost extraordinarily, broad understanding of what types of conduct constitute engaging in, assisting, or giving aid or comfort to such movements.”

It added, “The bottom line is that Donald Trump both ‘engaged in’ ‘insurrection or rebellion’ and gave ‘aid or comfort’ to others engaging in such conduct, within the original meaning of those terms as employed in Section 3 of the 14th Amendment.”

I’m fully down with that so far but the question remains, I think.

The provision’s language is automatic, the article said, establishing a qualification for holding office no different in principle from the Constitution’s requirement that only people who are at least 35 years old are eligible to be president.

“Section 3’s disqualification rule may and must be followed — applied, honored, obeyed, enforced, carried out — by anyone whose job it is to figure out whether someone is legally qualified to office,” the authors wrote. That includes election administrators, the article said.

In an interview, apparently, Professor Steven Calabresi, a law professor at Northwestern and Yale and a founder of the Federalist Society, said those administrators must act:

“Trump is ineligible to be on the ballot, and each of the 50 state secretaries of state has an obligation to print ballots without his name on them,” he said, adding that they may be sued for refusing to do so.

Therein lies the rub. Republican secretaries of state, many of whom are abjectly committed to support Trump no matter what, cannot be assumed to perform the asserted duty, no matter how forcefully that obligation is confirmed by Federalist Society professors. Some enterprising journalist should immediately put the question to each of the fifty secretaries of state, starting tomorrow. What they say will not, of course, be binding but still would be good to know their answers in fashioning a way forward.

As much as I desperately want to believe that Section 3 of the Fourteenth Amendment is self-executing, the cynics among us (me) do not believe anything so simple could possibly work in the political world Trump has handed down to our country. Lawsuits are going to be necessary, complicated, I suggest, by the fact that Special Counsel Jack Smith elected not to charge Trump with insurrection under the relevant statute:

Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States. [18 U.S. Code § 2383-enacted June 25, 1948]

Why Smith did not bring that charge has not been, and likely will never be, explained, but Trump will try to drive his denial truck through that gap and, typically, more litigation will ensue if anyone tries to disqualify him through legal action.

A final observation. I just read that Alan Dershowitz, ready to defend Trump’s criminality at every turn, has reportedly declared that the 14thAmendment applies only to “those who served the Confederacy during the Civil War.” Reported in the Daily Caller (where else?) but published only in the SmartNews app, apparently. The piece notes that the “the text does not authorize Congress—or any other body or individual—to impose the disqualification in the first place.” Further, the article claims, “It wasn’t intended as a general provision empowering one party to disqualify the leading candidate of the other party in any future elections.”

That’s an odd claim for an ultra-originalist to make. That fact, moreover, undermines Dershowitz’s argument. If no mechanism for applying the law was created, the most reasonable conclusion is that Congress thought it was self-actuating. And, if it were true that the law was only to apply to ex-Confederates, it would be most reasonable to expect that the statutory text would have been explicit to that effect.

The contrary position states that

it was fairly evident who participated in the Civil War on the part of the South. No formal mechanism was needed for making that obvious determination. If the disqualification had been intended as a general rule applicable to all future elections, it would have been essential to designate the appropriate decision maker, the procedures and the criteria for making so important a decision.

That argument ignores that Marbury v Madison was decided by the United States Supreme Court establishing the principle of judicial review, that the Constitution was indeed the supreme law of the land that Congress could not by itself change. While the article lists all kinds of mischief that might ensue without explicit mandates of who decides what, the reality, I suggest, is that the claimed disabilities are overcome by the fact that judicial review of all actions inconsistent with the plain intent of the statute would be available. As with many other laws in which judicial oversight is not expressly mentioned, the supremacy of federal law and the even greater supremacy of the Constitution are sufficient to warrant the conclusion that Congress did not have to established a specific enforcement mechanism for the operative sections of the Amendment. The courts were available to adjudicate any conflicting claims.

Thus, the absence of an explicit provision for judicial review does not support the speculation that the courts “might regard as a political question” the issue of whether a candidate had engaged in insurrection. No reason exists to think of that as a political question beyond the courts’ purview or that “if the controversy were not resolved by the Supreme Court, there would be a constitutional crisis.” Such imaginings are the product of an overactive ultra-originalist imagination.

Dershowitz gives himself away in the ensuing argument that,

Interpreting this post-Civil War amendment as a general provision for disqualifying candidates who some people may believeparticipated in what they regard as an insurrection or rebellion—as distinguished from a protest or even a riot—would create yet another divisive weapon in our increasingly partisan war. It would be used by Republicans against candidates who may have supported (gave “aid or comfort” to) riots such as those that followed the killing of George Floyd or other violence-provoking events. [boldface added]

The Constitution articulated limited qualifications for presidential eligibility. Beyond those neutral criteria, the decision should be made by voters, who are free to consider the participation of a candidate in activities with which they disagree. Unless an amendment was clearly intended to further limit these qualifications, the voters are the ones to decide who is to be their president.

Quite clearly, Dershowitz is fine if “the voters” decide it’s acceptable to elect a criminal who tried to stop the peaceful transfer of presidential power and who has threatened violence and further insurrection if he is elected. That is not the argument of a “constitutionalist,” at least not the one that laid the foundation for the United States. No basis exists, I suggest, for interpreting the Constitution or any federal statute as permitting the overthrow of the government if a bare majority use the ballot box rather than armed revolt to accomplish it.

That said, I believe it is entirely appropriate for lawsuits to be instituted to present to the courts for adjudication the question whether January 6 was an unlawful insurrection and, if so, whether Donald Trump inspired, incited, and directed it. If yes, he’s out. Period.

Let’s get on with it. Somebody (ACLU?) sue to bar his candidacy for the presidency and let the future of our democracy be decided.

What Are the Chances …

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that Donald Trump will comply with the Protective Order issued by Judge Chutkan in the January 6 case?

Near zero, I think. And his lawyers will be falling all over themselves to explain away or justify his violations when they are called before the judge, as they surely will be, to determine whether Trump should be held in contempt and, if so, what penalties should be imposed.

Trump will, I believe, continue attacking the judge, the justice system, the law, and anything else he believes will get attention in the media (who will duly report every outrage) and prepare his cultish supporters for what he hopes will be their next move, namely, a violent challenge to the law and order across the country. Trump likely believes that short of fleeing to a non-extradition country he may be out of options that his usual tactics of delay and obfuscation have achieved in the past. There is no reason to doubt that the carefully constructed evidentiary case against Trump for the January 6 insurrection will be persuasive beyond a reasonable doubt to any jury that fairly assesses it.

Trump’s trump card (sorry) is to force the judge to the edge of considering having him incarcerated, without his phone, pending trial. This prospect arises because no monetary penalty alone will suffice to control his behavior as long as he has free access, as he has in the past, to donated funds from his PACs and his rich benefactors. Money is literally no object to him in this circumstance.

Trump’s winning game therefore is to force the judge to order his arrest and detention, which will prevent him from campaigning, and thus drive his army of fanatical worshippers over the edge and into violent resistance. That is the true meaning of Trump’s social media post, ‘If you go after me, I’m coming after you.’

The judge has some alternatives, but none are going to suffice if Trump is determined not to be silenced. The judge could, for example, impose further restrictions on Trump’s access to the discovery materials that normally must be turned over by the prosecution to assist the defendant in preparing a defense. That approach hands Trump an additional claim that he was denied the opportunity for a fair trial because he could not participate fully in preparation of his defense.

The Protective Order issued by Judge Chutkan is not mysterious. It authorizes the Prosecution to designate various discovery documents as “Sensitive Materials” and imposes tight restrictions on their use [“defendant” replaced with “Trump”]:

Except as provided in this Order, without prior notice to the United States and authorization from the court, no Sensitive Materials, or information contained therein, may be disclosed to any person other than Trump, defense counsel, persons employed to assist the defense, or the person to whom the sensitive information solely and directly pertains and that person’s counsel….

… defense counsel may not allow Trump to write down any personally identifying information as identified in Federal Rule of Criminal Procedure 49.1 that is contained in the Sensitive Materials.

Of particular note:

…during any time that Trump reviews Sensitive Materials outside of defense counsel’s presence, Trump must not have access to any device capable of photocopying, recording, or otherwise replicating the Sensitive Materials, including a smart cellular device.

The trial judge has thus clamped the jaws of good order and justice tightly to send a clear message to Trump about what will be tolerated. That, of course, is a challenge Trump is unlikely to take lightly no matter how many assurances his lawyers offer up that he will comply.

Never forget that Trump has declared that “I have an Article II, where I have to the right to do whatever I want as president,” and he thinks he is still the president. People like Trump are unable to recognize that they have brought on themselves the troubles they face, by, in his case, and for example only, removing and mishandling top secret documents from the White House that he has claimed “are mine” and that he declassified just by thinking about declassifying them. He uses his abuses and law violations as a badge of victimization with which his cultish supporters sympathize because they see themselves also as victims. He hates and fears the same people they hate and fear, thus producing the perfect symbiosis.

Trump remorselessly directed his followers to attack the Capitol on January 6 to stop the transfer of executive power from him to Joe Biden. The whole world watched the attack on TV and has sense seen endless film of the assault in brutal detail, all the while Trump resisting calls from within and outside of his administration to call off the attack. Trump dug his own grave on this one, along with the Mar-a-Lago documents case, and has no one to blame but himself. He will, however, always true to his nature, almost certainly try to force the court’s hand because, well, that’s what he does.