Category Archives: Politics

Old White Guy Has Some Questions for the Sedition Caucus

Having gone to the trouble of creating the Congressional Hall of Dishonor, it seems, upon further reflection, appropriate to pose some questions to some of the more illustrious, and seemingly most proud, members of the Sedition Caucus. I refer to Senators Cruz, Hawley and the others who voted to overturn the 2020 election on January 6.  See Congressional Hall of DishonorUpdated at https://bit.ly/3rOT89t Think of this as a final exam that determines who these politicians really are and what they are destined to become.

As an Old White Guy, I report (confess, if you prefer) that I grew up, partially, in Memphis, Tennessee. The standing joke was that Memphis was really in Mississippi because its racial attitudes and conduct toward Black people most closely resembled that of Mississippi. But, alas, Tennessee was destined, it seems, to grow more like Mississippi as Mississippi was, perhaps, growing less like Mississippi.

Growing up in Memphis, one was exposed to naked racism everywhere. As a child I was reprimanded for drinking from a “Negroes only” water fountain in Sears. The idea was that  it was socially unacceptable to behave as if “Negroes” were the equal of white people. Go along to get along. I was embarrassing everyone. Nothing to discuss or debate. That’s how it was and how it was supposed to be according to … something no one could or would identify. Raise the question and people looked at you like you were insane and dangerous. I didn’t understand it then and I don’t understand it now.

We are now 70+ years on from those days. Sometimes it feels as if nothing much has changed.

I have some questions for the Sedition Caucus and all those who support them:

  1. Are you prepared to say that QAnon is a ridiculous concept, impossible for a rational person to believe? If not, why not?
  2. Are you prepared to denounce the Proud Boys as a domestic terrorist organization? If not, why not?
  3. How about the Three Percenters? The Oath Keepers?
  4. OK, here’s an easier one: the Ku Klux Klan?
  5. Further on No. 4, are you prepared to state, without qualification, that the Ku Klux Klan is a racist organization/entity/group/assemblage/collection/aggregation?
  6. Reversing field for a moment, are you prepared to state, without qualification, that the Charlottesville march by the Proud Boys and others was a racist action? If not, why not? Are you prepared to state, without qualification, that in Charlottesville there were not “fine people on both sides?”
  7. Are you prepared to say, without qualification, that the murders of children at Sandy Hook & Parkland were not staged?
  8. Are you prepared to say, without qualification, that the 9/11 attacks were not an “inside job” by the American government?
  9. Are you prepared to state, without qualification, that anyone who claims the California wildfires were started by Jewish space lasers is delusional?
  10. United States leads world in firearms per capita. Why is the population armed to that extent? You may not answer “ because they can” or “Second Amendment allows it.” The question is: WHY are so many people armed? Be precise. Very precise and specific.
  11. Do you believe that in general Black males are more prone to violence than white males? Why?
  12. Do you believe that police generally treat Black people the same as white people? If yes, upon what facts/data do you base that belief ?
  13. What, exactly, do you believe is the symbolism in the year 2021 of monuments to Confederate soldiers/generals/politicians? Define your terms – nothing like “southern culture” – be specific.
  14. Do you believe it is alright, ethically or morally, for one human being to own another human being and treat that person as property?
  15. Do you believe females should have the same rights and be treated with the same deference and respect, as males?
  16. Do you believe that non-white people should have the same rights and be treated with the same deference and respect as white people?

If you think these are fair questions to ask men and women who purport to lead the country, who seek our approbation for their views of our values and ideals, send the questions to your senators, congresspersons, mayors, councilmen and others in positions of “power” and who are members of the Sedition Caucus. You are among the grantors of those powers so it’s entirely appropriate to ask them to answer these questions. They’re mostly easy to answer – a yes or no will suffice. Some of the explanations will be … harder. But that’s why it’s a test.

If you get any answers and want to share them, please do so via the Leave a Reply.

Georgia’s New Voting Law – Truth or Consequences?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

Great Expectations Meet Legal Reality

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Caw! Caw! Jim Crow Returns to Georgia

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

The Larger Meaning of “Hidden Figures” – Republished

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

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

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

The Larger Meaning of “Hidden Figures”

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

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

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

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

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

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

 

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

TASK FORCE 1-6: Capitol Security Review

The Task Force led by Lieutenant General Russel L. Honoré, USA (Retired), working at the direction of the Speaker of the House, has published its draft report on Capitol Security Review (March 5, 2021). The work was inspired by the violent assault on the Capitol Building on January 6, 2021 by supporters of Donald Trump. The report describes it mandate as “to review and provide recommendations in the following areas: Capitol security operations, infrastructure physical security, and Member security in their Congressional districts, their residences, and during travel.” https://bit.ly/3ldcjbG

As I write, the Capitol Building and adjacent federal properties such as the United States Botanic Garden, are surrounded by tall metal fencing topped with razor wire and guarded by members of the National Guard. This spectacle of failure represents the supreme irony that Trump, the main proponent of a wall across the southern border, is responsible for the construction of a kind of “wall” around the U.S. Capitol to protect it from his supporters. The situation is so fraught that a session of the House of Representatives set for March 4 was canceled based on a “possible plot to breach the Capitol by an identified militia group.” https://bit.ly/3qG6og2

That means that plotting is continuing even as the government goes after the January 6 insurrectionists. More than 300 have been arrested and “more than 900 search warrants have been executed in almost all 50 states and the District of Columbia,” according to federal prosecutors. https://reut.rs/38B5CL7 Investigators are processing more than 15,000 hours of video from surveillance and body-worn cameras during the assault. Still, the “militia groups” are apparently not yet deterred.

One thing not mentioned in the extensive Task Force recommendations is the question, “under what circumstances is the use of deadly force by defenders of the Capitol authorized?” As I use the terms, “deadly force” refers to the type of response, not necessarily its use for the deliberate purpose of killing. Somewhere in the “orders” applicable to the Capitol Police and others involved in federal security there is almost certainly some specification of the conditions under which deadly force may be used. The policy is not, however, set out in the USCP Department Strategic Plan for 2021.

It’s a question that has received little public attention because, overwhelmingly, citizens and others approaching the Capitol have understood that the Capitol Police guarding the building meant business and that disobeying their instructions could lead to serious consequences. The Capitol has, therefore, been relatively safe as a workplace and monument to American democracy.

Until January 6, 2021.

Some people believe that had deadly force been promptly brought to bear that day, the invasion of the Capitol would have ended quickly. It’s true, of course, that deadly force was used against one insurrectionist as she attempted to force her way into the House Chamber. She died. But the assault continued because the attackers were already inside the Capitol in very large numbers and scattered throughout the building as they hunted for the Speaker of the House, the Vice President and likely any other Member they perceived as on the other side of the claim (utterly false) that the election had been stolen. Most of the assaulting force was therefore unaware that a member of their group had been killed. [One macabre observation about that incident is that it did not lead to the immediate retreat of the invaders at the scene, almost as if they expected worse and still were determined to carry out their mission. Or, perhaps, they simply didn’t care.]

In any case, we can only speculate about what would have happened if the defending force had used deadly force early in the struggle. A thoughtful treatment by someone with training and experience in the field of the responsibility faced by each officer in that situation can be read at https://wapo.st/3csLWu7 The article is clear that the existing training for Capitol Police simply did not cover the situation that existed on January 6.

This is a sensitive subject, but it needs to be considered. The draft report notes that, “communicated threats against Members [are] tracking at nearly four times last year’s level ….” That is an astonishing reality and likely is traceable to the constant haranguing by Donald Trump and his enablers, even before the election and continuously thereafter, that the process was rigged against him, rife with fraud and that the election would be/was stolen.

But whatever the cause, the effect is reason for alarm, which is reflected in the urgency that Task Force 1-6 urged upon the various powers-that-be to move swiftly to address the concerns in the report. While the language is, not unexpectedly, a bit dry and matter-of-fact, the realities of threat, risk and security shortfalls that it reveals are far from mundane or routine.

The question I am raising is whether the published policy of the security apparatus for the Capitol should make explicit that any further attempted breach of the building may be met with deadly force at any time. It would, and should, also state that, in bringing deadly force to bear, efforts will be made to avoid loss of life, but anyone contemplating an attack on the Capitol, or any other federal building, for that matter, should understand the risks that gunfire directed at, for example, the legs could well inflict mortal wounds.

We are talking about a true combat situation. Members of the January 6 assault force were carrying weapons and presumably some were prepared to use them. The insurrectionists were responsible for the death of one police officer on the scene as well as severe injuries to others. The combat was hand-to-hand for hours and it is, frankly, miraculous that no more lives were lost. Video of the events clearly showed prolonged assaults with, among other things, a flagpole holding an American flag. It seems that the Capitol Police and others sent, belatedly, to help them were not operating under clear instructions regarding the use of their weapons. The shooting of one invader occurred as a last resort to stop her from forcing her way into the House Chamber where she almost certainly would have been followed by others.

The U.S. Customs and Border Protection force has a 117-page manual entitled Use of Force Policy, Guidelines and Procedures Handbook. https://bit.ly/3ld3kqC The relevant policy text on use of deadly force states:

D. Use of Deadly Force

    1. Deadly force is force that is likely to cause serious physical injury or death.
    2. The Department of Homeland Security Policy on the Use of Deadly Force governs the use of deadly force by all DHS employees.
    3. Authorized Officers/Agents may use deadly force only when necessary, that is, when the officer/agent has a reasonable belief that the subject of such force poses an imminent danger of serious physical injury or death to the officer/agent or to another person.
      1. Serious Physical Injury – Injury which creates a substantial risk of death or which causes serious disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ or structure or involves serious concussive impact to the head.

The people putting their health and lives on the line to protect the Capitol should have clear policy to follow regarding when deadly force can be used to repel an attack, and the assurance that the department will support them. Citizens considering such an assault should have no illusions about what might happen to them the next time. Clarity will be beneficial for everyone involved.

That is not to say that the use of deadly force is a simple and always clear-in-the-circumstances situation. Plainly, it is not. But the complexity and uncertainty surrounding the use of deadly force is not made better by having no standards at all. Before another attack on the government occurs, the force established to repel it should be given the best tools available for dealing with it.

Then take the damn fences and razor wire down.

 

 

The 2020 Election Was Not Stolen

I continue to see reports of Republicans claiming that the 2020 presidential election was stolen. Republican talking heads are being given air time on the networks and, of course, on cable, to continue arguing about this. They are wrong. It’s time to move on.

Republicans claiming the election was stolen due to rampant voter fraud are wrong for multiple reasons.

Belief is a choice. If we are to be rationally and coherently connected to the world, we must have a basis for that choice. There are several options.

One option (Evidence Principle) is: evidence. I believe X because there is sufficient evidence that X is true and insufficient evidence that non-X or anti-X is true, when both X and non/anti-X cannot be true at the same time.

Another option (No Evidence Principle): I go by the “absence of evidence rule” that the “absence of evidence is not evidence of the absence.” Thus, if there is no evidence from which to adopt Belief X, I still may choose to believe X because of the “rule.” Don’t try to tell me X is not true; I believe it because there is no evidence to disprove X. Bear in mind, however, that this option is only rational and coherent if there is no evidence. If there is evidence that X is not true, one cannot use this “absence of evidence” rationale for asserting X is true.

Another option (Don’t Know/Don’t Care Principle): I have no idea whether there is evidence or not regarding the truth of Belief X, but I choose to believe X anyway, because I believe a lot of things for which I have no evidence: (1) there is too much evidence to cope with, (2) evidence exists but we just don’t know what it is yet, (3) I know a lot of other people who believe X and I like them/respect them/want to be seen as one of them, so I really don’t care what is true. I believe what I believe.

What do we know regarding the 2020 election?

    1. After more than 60 legal challenges, the Republicans supporting Trump prevailed in exactly none that would have changed the result of the presidential election – NONE. Trump’s counsel and experts were never able to produce evidence that X was true, where X is the fact that the presidential election was stolen by rampant fraud in the handful of battleground states that decided the election.
    2. Since the legal battles ended and the Electoral College results were certified, the pro-Trump crowd has still not produced evidence of X, that the presidential election was stolen, despite months of opportunities to do so.
    3. During the multitude of legal challenges prior to January 6, the pro-Trump contingent was never able to explain how the presidential election was stolen (X was true) while Republicans continued to have electoral success in other races in the same battleground states (Belief Y, that would be expected to be concurrently true if X were true).

It appears that the Evidence Principle and the No Evidence Principle must be rejected as rational and coherent explanations for the continuing claim that the election was stolen.

We are left with the Don’t Know/Don’t Care Principle that, I suggest, means that there is no rational or coherent basis for the claim that the election is stolen. The apparently widespread belief in the QAnon Conspiracy and some of the other nonsense being spread on cable TV, most notably FoxNews, Newsmax and OAN, including but not limited to shows like Breitbart, are examples of the Don’t Know/Don’t Care Principle in practice – large numbers of Americans choose to belief utter nonsense for which no evidence exists or even could exist.

To be clear, I am open to being shown the error of my thinking on this but, absent such proof, this is where we are.

I am happy to have settled this problem for the nation. The subject should be considered closed. The media can now stop giving air time to the proponents of the Don’t Know/Don’t Care Principle. They have nothing useful to contribute to the national dialogue about how we should govern ourselves and therefore no more valuable air time should we wasted on them.

The End. Roll the credits. Blackout.

Republican Titanic – “I don’t see no stinkin’ iceberg”

Republican senators had an advantage over the Titanic command – the attack on the Capitol occurred in broad daylight and was captured on video by hundreds of gleeful participants. The attack, we now know, was planned by some participants in advance. The mob was summoned to Washington by Donald Trump, then the president of the United States, and directed to walk to the Capitol to stop the counting of Electoral College votes that would, at long last, end any hope Trump had of retaining power. It all happened in public view – Trump’s call to action, hours of hand-to-hand fighting with police, the mob hunting for members of Congress (particularly for Speaker Pelosi and Vice President Pence—“Hang Mike Pence,” they yelled) and ransacking the hallowed ground of American democracy. Calls for help went unanswered.

The desecration did not end on January 6. After reviewing the undeniable evidence, only seven Republican senators (Burr, Cassidy, Collins, Murkowski, Romney, Sasse and Toomey) had the courage, moral conviction, instinct for survival, call it what you will, to vote to convict Trump of the incitement to violence the entire world had witnessed. The other Republicans were fine with what happened, so much so that many of them literally ignored the proceedings in the Senate trial.

The media reported that Trump was “acquitted,” and while it’s a fine point, this was not an acquittal but just a failure to reach a super-majority for “guilty.” The total vote for “guilty” was 57, well past a simple majority and a historic first. In substance, Trump was found “guilty but not guilty.” In a supreme irony, the failure to achieve a two-thirds majority spared Trump by virtue of the very Constitution that he spat upon throughout his presidency.

Before the vote occurred, I was penning a blog post entitled “Senator Ted Cruz – Sophist in Wonderland,” addressing an op-ed Cruz wrote for, who else, Fox News. https://fxn.ws/2ZfvsQ0 The op-ed is remarkable for many reasons, but what stood out for me was the surprising conclusion that the Senate did indeed have jurisdiction to conduct a trial of a former president for in-office conduct. That conclusion, however, is followed by ““I believe the Senate should decline to exercise jurisdiction-and so I voted to dismiss this impeachment on jurisdictional grounds.” [boldface & italics mine] Thus, Cruz would have you believe that the Senate had jurisdiction but also did not have jurisdiction.

This style of reasoning is typical of the Republicans who have accepted Donald Trump as their liege lord. In their eyes, he can do no wrong. In the rare case where they admit he was wrong about something, they still support him. Absolute in their views about many things, so-called Republican “conservatives” apply total relativism for Trump’s conduct – relative to Satan himself. (Trump’s not so bad compared to the Beast himself, so what’s the problem?) Trump’s hallucinatory view of reality as totally malleable – essentially, “it is what I say it is” – is the Alice in Wonderland world the Republican Party has adopted as its operative principle. Beyond that, it has no principles. Power is all.

That much has been clear for the entirety of Trump’s presidency, at the very least since KellyAnne Conway uttered the infamous line about “alternative facts” two days after Trump’s inauguration. The January 6 insurrection that, reduced to its essence, was an attempt to overthrow the government by a sitting president, at least provided clarity about where the Republican Party stands.

Senators like Rand Paul can still appear on television and with a straight face argue that there are “two sides to everything.” But only someone with no moral foundation would say that. Even a craven individual like Mitch McConnell has admitted there is no evidence that the election was stolen from Trump. But, like Cruz, McConnell, moments after voting against the Senate majority, agreed that Trump had incited the violence for which McConnell had just voted he could not be held accountable. In Trumpland, reality really is whatever Trump says it is.

Now comes former Professor Alan Dershowitz in Newsweek, to offer cover for Republicans looking for a seemingly intellectually plausible basis to argue that Trump’s “incitement” was really protected speech under the First Amendment. https://bit.ly/3pnLWzY  [Disclosure: Dershowitz taught my 1L criminal law class at Harvard]

Dershowitz argues there is no difference between what Trump did and the actions of Representative Jamie Raskin’s father (Marcus Raskin) and others who, in the 1960’s, encouraged young men to resist the draft and endorsed  “the burning of draft cards, break-ins at draft boards and other unlawful actions to obstruct the war effort.” According to Dershowitz,

the defense was that the First Amendment protected Marcus’ advocacy of resistance to the draft, even if such resistance then took a form of unlawful actions by others….The jury acquitted Marcus, and the court of appeals reversed the convictions of the other defendants. They were all saved by a broad reading of the First Amendment.

While it’s remotely possible that my limited access to research has failed to find some relevant authorities, I am at loss to understand what Dershowitz is saying. The Court of Appeals case he refers to must be United States v Spock, 416 F.2d 165 (1st Cir. 1969). This was the appeal from the trial that acquitted Marcus of conspiracy but found the other four members of the “Spock Five” guilty. Contrary to the implication of Dershowitz’s description, the Court of Appeals in Spock did not reverse the convictions of the other four due to a “broad reading of the First Amendment.”

A couple of quotes from the opinion suffice to frame what was really going on:

The defendants here are not charged … with expressions of sympathy and moral support, but with conspiring to counsel, aid and abet Selective Service registrants to disobey various duties imposed by the Selective Service Act….

What we do determine is that the First Amendment does not, per se, require acquittal.

The central question addressed by the opinion was,

Whether … the evidence was sufficient to take the defendants to the jury.

There was, of course, an obvious and complex relationship between the First Amendment protections of speech and the adequacy of the evidence of illegal intent. The Court’s opinion expressly recognized the problem, but it also set out three different ways in which a speaker critical of the government could be found to have unlawfully conspired to violate the law, notwithstanding the First Amendment: (1) prior or subsequent “unambiguous statements;” (2) “subsequent commission of the very illegal act contemplated by the agreement;” or (3) “subsequent legal act if that act is ‘clearly undertaken for the specific purpose of rendering effective the later illegal activity which is advocated.”

The opinion, moreover, did not discuss Marcus Raskin at all because he was acquitted at trial. There is no way to know what the basis for a jury’s decision is, so Dershowitz cannot plausibly claim that Raskin was saved by a “broad reading of the First Amendment.”

The Court of Appeals did reverse the guilty findings of the other four defendants, as Dershowitz said. The Court reversed the trial court’s guilty finding for Spock because the evidence against him did not establish the “necessary intent to adhere to its [the charged conspiracy’s] illegal aspects.” Further, “Spock’s actions lacked the clear character necessary to imply specific intent under the First Amendment standard.”

While it’s certainly  true that the Court was applying the principle of strictest interpretation of law required by the First Amendment, as to which there was nothing surprising given the history of decisions regarding controversial speech, the actual decision as to Spock was based on evidentiary failures.

As to defendant Michael Ferber, at the time a draft-age student, the Court said,

the evidence did not warrant a finding that through other statements or conduct he joined the larger conspiracy for which the other defendants were prosecuted.

Rev. Coffin and Andrew Goodman had a different outcome entirely, but it was determined not by the First Amendment but by what the Court of Appeals determined, rather easily, was a fundamental error by the trial judge in posing questions to the jury designed to elicit “specific findings” of separate elements of the crimes charged, if they had reached a guilty verdict. That approach, condemned rather universally by precedent, ran afoul of the independence accorded to juries under American law. Juries, in other words, are free in criminal cases to do what they will; the Court of Appeals wrote:

To ask the jury special questions might be said to infringe on its power to deliberate free from legal fetters; on its power to arrive at a general verdict without having to support it by reasons or by a report of its deliberations; and on its power to follow or not to follow the instructions of the court. Moreover, any abridgement or modification of this institution would partly restrict its historic function, that of tempering rules of law by common sense brought to bear upon the facts of a specific case…

Uppermost … is the principle that the jury, as the conscience of the community, must be permitted to look at more than logic…. If it were otherwise there would be no more reason why a verdict should not be directed against a defendant in a criminal case than in a civil one. The constitutional guarantees of due process and trial by jury require that a criminal defendant be afforded the full protection of a jury unfettered, directly or indirectly….

Here, whereas, as we have pointed out, some defendants could be found to have exceeded the bounds of free speech, the issue was peculiarly one to which a community standard or conscience was, in the jury’s discretion, to be applied.

The Court thus reversed the trial court as to Coffin and Goodman and ordered new trials, leaving open the possibility that a properly instructed jury could convict them.

Thereafter, the government dropped the charges, ending the case.

Undeterred by those realities, Dershowitz goes on to expand his view of Trump’s innocence with this:

Several years later, Marcus [Raskin] was once again protected by a broad reading of the First Amendment, when he served as an intermediary between Daniel Ellsberg, who unlawfully stole the Pentagon Papers, and The New York Times, which published them despite their being classified. But for the First Amendment, Marcus would have been charged with conspiracy to publish classified material.

Unlike Dershowitz, I don’t claim to know what would have happened if there had been no First Amendment precedents, but I do know that the referenced case, New York Times Co. v. United States, 403 U.S. 713 (1971), involved the government’s attempt to stop publication of stolen classified documents. It dealt with “prior restraint” of the press and is remotely, if at all, relevant to the fate of Marcus Raskin.

Dershowitz then engages in a clever application of “whataboutism,” not to mention historical speculation and revisionism:

If Jamie Raskin’s current view of the First Amendment had prevailed back in the day, his father would likely have been convicted of two felonies. If President Trump incited his followers to commit unlawful conduct, so did Marcus.

In an all-too-familiar trope, Dershowitz goes on with this:

I would have thought that Jamie Raskin—in light of his history as a constitutional law professor, his family history under the First Amendment and his own protests against the 2016 election—would be leading the charge to protect the First Amendment. But no! He is leading the charge to compromise President Trump’s free speech rights—and thus the rights of all Americans to express controversial, even wrongheaded and provocative, views.

The English translation is “I thought someone as smart as you would not hold such crazy and disreputable views.” I really hate to see that, perhaps because it’s been used against me by people holding Trump-ish views. If someone disagrees about something, explain yourself, but don’t do the “how could someone as smart as you be so dumb” routine, especially following an incomplete, and arguably inaccurate recital of historical facts about which the author should know better (he claims to have been involved in the defense of the Spock case).

Returning to what Dershowitz labels as the desire of various people and groups to create a “Trump exception” to the First Amendment, Trump’s speech on January 6 does not stand alone. Indeed, in the Spock case, the Court of Appeals addressed in some detail not only the words spoken but other conduct that indicated participation (or not) in the charged conspiracy.

Trump actively invited his supporters to come to Washington on January 6 to “stop the steal,” a false claim that the election had been stolen from him. His public statements, through Twitter and otherwise, painted a false picture of what had happened. More than 60 court cases had heard his claims and rejected them. Some of his staunchest allies, including the Republican Majority Leader and his former Attorney General, had publicly acknowledged that the claim of stolen election was false.

Trump could say what he wanted, but there is no plausibility to the argument that he actually believed what he was saying to the mob. He lied repeatedly to them. Why? The only plausible reason was to stir them up, to play upon their anger and fear. He was supported in this by his attorney (who called for “trial by combat,” a statement Trump did not reject), and his sons addressing the mob that assembled at the “rally” in Washington.

It should be obvious, but speaking at a Trump rally is not like karaoke night at a bar where anyone who wants to perform can take the mic. Trump approved everything. He explicitly stated that the mob was going to walk down to the Capitol and that he would be with them, a crucially important element in the incitement component of the speech. That is a fact that his Republican supplicants would like to overlook but Trump’s assurance that he would accompany the mob to the Capitol is conclusive of his intent to direct them. Even before he finished talking, a large contingent of supporters headed for the Capitol Building, apparently led by the Proud Boys. Trump continued egging on the others who soon followed.

Thus, Trump’s call for action went well beyond merely voicing objection to government action. He explicitly directed the mob to go to the Capitol, leading them to believe he would be going with them. That Trump lied about going with them is irrelevant to the question whether his speech was simply a complaint about the government or a specific incitement to specific violent action that was foreseeable because it was called for by his choice of words, his continuing to lie about the election and by his subsequent failure to take action to resist the assault on the Capitol.

Indeed, the fact that no steps were taken by the Secret Service to move Trump to a secure location in the face of a brutal physical attack by thousands on the Capitol that lasted for several hours of hand-to-hand combat is itself strong evidence that Trump had directed the attack and intended for it to occur. He was perfectly content to sit back and watch his handiwork play out. Statements from White House sources, not credibly rebutted by evidence of contrary action, indicate that Trump was pleased with the violence and could not understand why others on White House staff were not equally moved by it.

A finding in those circumstances that Trump incited the attack on the Capitol does not create a “Trump exception” to the First Amendment. Dershowitz flatly states that the First Amendment recognizes no exception for actions by the president, but his assertion begs the question. Trump took an oath to defend the Constitution.

Dershowitz’s argument that Trump could not violate the law because he was “protesting the actions of other  branches of government” also fails to address the key issue: was the “protest” an active incitement to violence that the president sought to inspire and that he effectively directed to occur? Was he merely complaining out loud about what he thought, however absurdly, was a bad election? Or, was he effectively leading (from behind, but still leading) a physical attack to stop a constitutionally-mandated action from sealing his electoral fate?

In World War II, General Eisenhower did not physically assault the beaches at Normandy, but he was Supreme Commander of the Allied Expeditionary Forces. No person of reason would say that Eisenhower did not lead and direct the attack. Dershowitz’s categorical claim that Trump’s words were protected by the First Amendment would, if true, immunize any person, including a president, from organizing and directing from a distance a violent attempt to overthrow the government and capture or retain power. Whatever the First Amendment means, it doesn’t mean that. If it did, the framers would have created the seed from which the defeat of the democratic republic they risked so much to create could be easily destroyed. Dershowitz’s snarky attack on Jamie Raskin aside, that facile exercise in “whataboutism” is simply implausible.

Returning then to the metaphor I used at the outset of this post, if the democratic republic we know as the United States is going to survive, and we know that democracy is rare in world politics, the Republican Party must now face a reckoning unlike anything in its history. If the republic is fortunate, the GOP has doomed itself by aligning with a wannabe-dictator. An overwhelming majority of Americans who believe in the principle of rule by the people through a neutral system of laws will emerge from the horrors of January 6 with a stronger commitment to assure that such outrages are not repeated.

An agenda to achieve that end should include strong criminal prosecutions not only of the perpetrators of violence at the Capitol but of the leader. The spinelessness of the Republican senators who voted “not guilty” in the second impeachment should motivate true patriots to demand complete justice accomplished through the justice system without political involvement.

In addition to the offenses arising from January 6, we must not forget that the Mueller Report documented no fewer than ten instances of blatant obstruction of justice by Donald Trump. Those cases must be prosecuted so that no future president thinks he or she can follow Trump’s approach to governance with impunity. Don’t forget that Trump claimed Article II of the Constitution authorized him to “do whatever I want.”

As part of that process, but separate from it, the Department of Justice should reconsider its policy position that a sitting president cannot be indicted while in office. The “Republican gap” – you can’t indict while in office and you can’t try impeachments after leaving — must be closed definitively.

The federal government also needs to re-examine the states’ voter suppression tactics, which are rampant in the wake of the 2020 election. While I remain profoundly suspicious that Republican-dominated state governments will give good-faith and fair consideration to voter -expanding processes, a brief attempt should be made to find mutually-acceptable policies, to be ingrained in federal and state laws, that will put a permanent stop to the meddling that occurred in 2020 and long before. Nothing is more important to the survival of democracy than assuring that the will of the people is effectuated through elections at every level of government. The Biden administration should add this to its long list of priorities.

Finally, Americans who are committed to the continuation of government of, by and for the people must wake up, sign up, get informed and vote in every election. Failure to attend to the democratic opportunity will result in its being eliminated. We saw this in 2016 and almost again in 2020.

As for the Republican Titanic Party, Americans who believe in the principles once held by the GOP now must find a new political home. The GOP has been taken over by conspiracy theorists and violent extremists. They believe America can survive as an independent country even as it returns to an imaginary yesteryear in which a huge percentage of the population is treated like property, the country’s best opportunities are reserved for white people and we ignore issues like climate change and the need for international relationships based on shared interest and peace. They often espouse principles that would destroy the separation of church and state, a bedrock element of American freedom and independence.

Those Americans who, for better or worse, still genuinely believe that a country in the 21st century can prosper only with smaller government, less regulation of virulent capitalism and the other central tenets of traditional conservative values must find a new political home. If they choose to remain with the GOP, they are going to be swamped by Trumpers who have captured the machinery of its state parties (witness the multiple censures of Republicans who dared go against Trump during the election and after the January 6 attack). The old GOP is a dead duck, a backward-looking myth-based hallucination. Donald Trump, Jr. said it straight out on January 6: the GOP is now Trump’s party.

I hope that genuine conservatives will reconsider whether a modern 21st century country can prosper, or even survive, if it relies on Trump’s values. I hope they will join the Democratic Party in a future that accepts reality and welcomes change (which is inevitable), is inclusive (more interesting people in a diverse population) and works extra hard to ensure that its children are raised as independent thinkers (not replicas of their parents) who are more prepared to face the daunting challenges of 21st century life, open to new experiences, new people and hope. If those people come over, the old GOP will lose a huge element of its power and become a marginalized collection of white supremacists, misogynists and extremists with little to no influence on American political life going forward.

“Hang Mike Pence” – Politics as Usual?

If you’ve had the stomach to watch the videos shown to the U.S. Senate in Donald Trump’s second impeachment trial, you saw and heard this chant from the mob that attacked the Capitol on January 6. This was the threat to the Vice President instigated by the President. The evidence is overwhelming. Trump inspired and directed the mob of crazed right-wing insurrectionists and conspiracy-believers to attack the Capitol to stop the counting of Electoral College votes so that he could declare himself the winner of the election he so clearly lost. I am no fan of Mike Pence as a politician or person but “Hang Mike Pence” and “Pence is a traitor” for refusing to follow Trump’s expressed direction to throw the election to him are simply, unequivocally, irrefutably wrong and unacceptable.

Political pundits of all stripes predict that the Republicans in the Senate, as Lindsey Graham and others have declared, will vote to acquit Trump despite the evidence, just as they did in his first impeachment for trying to strong-arm a foreign president to damage his expected election opponent. I am not going to waste space reciting the evidence against Trump or addressing the preposterous defenses that his hapless counsel have presented. No, my question today relates to a different aspect of  this situation.

The question is simple enough: after the Republicans again prevent a guilty verdict, will the remaining Senators and Congresspeople just return to “politics as usual,” as they normally do after sometimes bruising political conflicts? Do they just go back to normal arguing, debating, schmoozing, dining together, attending meetings together and all the rest … as if this latest offense to truth and the Constitutional order were just another political difference of opinion?

Because it indisputably wasn’t just another difference of opinion. Based on the evidence, the mob sent by Trump was intent upon doing harm to not only the person second in succession to the presidency but also to members of Congress, including the Speaker of the House, third in the line of succession.  The mob engaged the Capitol Police and the Metropolitan Police in a pitched battle for hours. The mob threw fists, threw fire extinguishers, beat police with hockey sticks and metal poles, hit police with bear spray and much more. For hours. Once inside the Capitol building, they ransacked offices while hunting for the prime targets of Trump’s and their anger. They desecrated the Capitol building not just with their presence but with their violence as they hunted for the fleeing members of Congress.

Those facts are not in dispute. The mob was fortunate in some ways that the police, for whatever reasons, did not fire on them. Imagine for just one moment what that scene would have looked like. Dead insurrectionists piling up in front of dead police (many of the mob were armed and almost certainly would have returned fire in close quarters with the defending police force). The worst that will happen to the mob now is that some of them will be convicted of multiple federal crimes, will be sentenced to prison terms, will lose their jobs and their families, and on and on. All for what? Some, of course, will be lionized by the Republican right-wing as heroes, a dubious honor already conferred on the woman who was shot trying to force her way into the House chamber. The others will disappear into well-earned obscurity.

Left behind will be the politicians, one group of which will have turned their backs on their colleagues to seek the favor of the mob back home that, while perhaps sharing the views of the January 6 attackers, stayed put and retains the right to vote in the next election. Left behind will be the politicians on the “other side of the aisle,” the mystical dividing line between the parties in the House and Senate chambers, most of whom are Democrats. A few will be Republicans who understood their higher duty and acted honorably, for which they are being vilified by Republican party leaders around the country. Left behind will be the Democrats holding slim majority power in both chambers and, of course, the White House. Left behind to deal with the carnage wrought by Trump’s violent and deranged army. Left behind also will be the Black Capitol Police officers who, well before January 6, had good reason to wonder if all their white colleagues really had their backs in a fight. See, for example, https://bit.ly/3u0aEds reporting on the long history of racism and other issues in the Capitol Police, largely ignored by Congress.

As those politicians who miraculously survived the mob assault return to their normal legislative work after the acquittal vote, how will they treat the senators who were perfectly content to have the mob kill them for doing their constitutional duty and for refusing to adopt the lies Donald Trump continued to promote about the election. How does one sit across from another politician with whom you have not just a profound disagreement about governance policies but who has basically said: “I am fine with your being murdered by a mob of Trump supporters because your life means nothing compared to keeping Trump, and myself, in power.?”

We’ve seen one hint, from Congresswoman Alexandria Ocasio-Cortez. She responded to Ted Cruz’s tweet purporting to agree with her regarding the dispute over stock market activity/manipulation with this:

I am happy to work with Republicans on this issue where there’s common ground, but you almost had me murdered 3 weeks ago so you can sit this one out. Happy to work w/ almost any other GOP that aren’t trying to get me killed. In the meantime if you want to help, you can resign. [Tweet, Jan. 28]

AOC is well-known for speaking her mind and this is a situation that calls for bold and clear responses. Going along to get along just won’t do anymore.

The question Democrats and a handful of honorable Republicans will have to face is how to deal with the reality that, looking at the evidence, that the Trump-acquitting Republicans no longer see their opposing representatives as other than enemies in the truest sense of that word. This is not a case of just another political fight where afterward everyone hoists a drink to celebrate messy but glorious democracy and moves on to the next dispute. A line has been crossed and there is no going back from here. The Republican Party has forfeited its legitimacy as an American political institution and there must be consequences.

What those consequences are, I am not competent to describe, but the members of Congress who have prosecuted the case against Trump will have to deal with it. There is no going back; no return to politics as usual. The American public, the majority that still believes in the American concept of democracy, will have to face it as well. We cannot just go back to the Before Times, like nothing much happened, like this was just a bad episode in the march toward truth, justice and the American way. A large contingent of Republican senators didn’t even bother to show their faces today, on the last day of the prosecution presentation. Their disdain for the process, for the American way of political life, is blatant and undeniable.

In light of all of this, the challenge is overwhelming to contemplate, especially when added to the racial divisions that have afflicted the country for all these hundreds of years and that boiled over in the wake of the latest spate of killings of unarmed Black people by police. The mythical “idea of America” has been brutally exposed for its essential unreality and it’s a hard pill to swallow. But it’s a truth from which we cannot escape until we have faced the demon and vanquished it.