Category Archives: Politics

The Hunter Biden Circus – Bring in the Clowns

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Disclaimer: Since my earliest days as a lawyer, when I was assigned a few times by judges in the District of Columbia to perform pro bono (free) defense services for indigent criminal defendants, I am not, and have never been, a criminal defense attorney. But I do know a few things. Believe. Or not.

The circus surrounding the charges against Hunter Biden has its roots in the fact that he is the President’s son and Republicans are desperate to undermine the President who appears, for the present, destined to obliterate the criminal traitor Donald Trump on whom the Republican Party has pinned its hopes for 2024. Otherwise, Hunter Biden’s alcohol and drug-fueled misbehavior would be just another relatively small and unimportant criminal case against a person who, sadly and despite having all the advantages of being the son of a prominent politician, could not control himself. Addiction will do that. A Nobel Prize awaits the person who figures out how addiction works and how its deadly work can be derailed. But until then, it’s clear that the interest in the Hunter Biden case stems from one source.

Hunter Biden has been under investigation for years when the Trump administration was in charge and Trump’s personal lackeys were in charge of the Department of Justice, the FBI and more. In the ordinary boring course of such investigations, absent the connection to Joe Biden, the charges brought would most likely resemble those in the present case and a plea bargain would have emerged. Something went terribly wrong in Hunter Biden’s case and there is plenty of blame and reason for suspicion to go around.

Reports indicate that “whistleblowers” who formerly worked at DOJ have claimed their attempts to tie Hunter to the President were stymied. Yet, the man in charge of the process at DOJ says otherwise. He, like the judge assigned to Hunter Biden’s case, was appointed by Donald Trump (odd how that keeps happening). US Attorney David Weiss led the entire investigation and has been clear that there were no restraints on him from any source.

Little clarity surrounds the “restraints” claimed by the “whistleblowers” who arguably are carrying water for Rep. Jim Jordan and other MAGA Republicans whose main goal is not “justice for Hunter Biden” but pinning a corruption charge on President Biden. David Weiss has offered to testify before Jordan’s House committee but only in public and not behind closed doors as, curiously, the Republicans desire. Jordan’s approach would, of course, enable Republicans to make irrefutable claims about Weiss’s testimony, a ploy that he, despite presumed loyalty to Trump, is wise to.

The other major and possibly unique circumstance surrounding the plea deal and sentencing hearing is that the MAGA Republicans filed their own brief on Hunter Biden’s sentencing, urging the judge to reject it. And she did. Not, ostensibly, because of the claims of political interference by Biden loyalists at DOJ, but because of a serious oddity: an asserted concern raised by the judge on her own initiative, ostensibly, about the constitutionality of the plea deal’s secondary issue: Hunter Biden’s purchase of a gun when, as an admitted drug addict, he was forbidden from doing so.

Then, under probing from the judge about possible other charges against Hunter for illegal foreign lobbying under the Foreign Agents Registration Act, it was revealed that the Biden defense team and the prosecutors had different understandings of Hunter’s future exposure to such charges. And that, ladies and gentlemen, is the remarkable, astounding fact that is apparently at the root of the plea deal’s rejection, at least for now, by the judge.

If the judge’s questioning was motivated only by her appropriate interest is assuring that the parties had a complete meeting of the minds on the plea agreement, without regard to the political pressure brought to bear by the Republican Congressmen calling for rejection, the judge cannot be faulted. On the other hand, she is a Trump appointee and the issue of possible unconstitutionality of the plea deal as structured seems a bit of a stretch. We’ll likely never know.

I am personally very troubled, deeply, at the idea that a Congressional committee of partisan politicians injected itself into a criminal proceeding. I would be equally troubled if a committee of Democrats intervened in a criminal proceeding involving a Republican. We’ll never know what influenced the judge who reportedly said she had not digested the entire brief from the Congressional committee but signaled her intention to consider it.

One report characterized the judge’s concerns this way:

Noreika expressed frustration that the two sides structured the tax and gun plea deals in a way where she would need to approve the gun deal but had no powers to approve or reject the tax agreement.

The diversion agreement – which isn’t often submitted to a judge – has a provision that says if there is a dispute over whether Hunter Biden breached the terms of the deal, it would go to the judge for fact-finding. Noreika questioned why it would “plop” her in the middle of a deal she didn’t have a say in, and potentially block the Justice Department from bringing charges, a function of the executive branch.

[https://www.cnn.com/2023/07/26/politics/takeaways-hunter-biden-plea-hearing/index.html] I don’t understand the judge’s attributed remark that she had no say in the deal when the deal was before her for acceptance or rejection.

Beyond the judge, however, it is clear to me that one of counsel’s most important functions in a case like this is to suss out every possible issue that could come up, every possible thing that could do awry. This is as true of the prosecutor as it is of the defense counsel. Here, apparently, both failed in this critical responsibility. They made a deal that was incomplete, and the omitted factor was, I believe, obvious. A plea deal is a settlement and a central issue in every settlement is the question of its completeness. Does it resolve all issues? In civil settlements, it is typical to include the broadest possible language showing that all issues between the parties arising out of the dispute are resolved. No less is this to be expected in a criminal plea bargain.

Yet, in Hunter Biden’s case, the parties did not, apparently, consider the issue of future charges for other offenses even though the potential of such charges was known to and should have been obvious to both sides.

The end result is that there is no end result. Hunter Biden ended up pleading “not guilty” to the current charges while the judge considers her options. Presumably, the defense and prosecution will reconvene to negotiate further. Time will tell.

So, who was responsible for this mess? I don’t know and decline to speculate. As with the charges that appear to be imminent against Donald Trump and his many co-conspirators for the January 6 insurrection, the false electors gambit and the fully documented attempts to overturn the election in Georgia, we will have to remain patient for a while longer. Serious and expert observers of this case share your, and my, amazement that this issue was not resolved before the plea hearing. https://www.rawstory.com/hunter-biden-2662485694/

A final observation: one issue that has been raised in the press is whether the agreed charges against Hunter Biden are inappropriately “light” given the offenses involved. One’s views of this question are most heavily influenced by one’s political partisanship. I caution only this: plea deals are just that. Each side assesses the strengths and weaknesses of its case, and each side gives something to achieve settlement.

Sentencing is inherently difficult and often results in terms that seem sharply disparate. The most prominent examples lately are the various impositions on January 6 insurrectionists who were found guilty, by trial or plea in the face of overwhelming evidence. There are many reasons for this. If you are really interested in how this happens, read Noise, by behavioral economist Daniel Kahneman (Nobel Prize-winning author of Thinking, Fast and Slow), Olivier Sibony and Cass Sunstein where the variability of judgments by judges, doctors and others is analyzed in shocking detail.

Hubris and the Junk Heap of History – Part 2

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Let’s review what has happened most recently.

  • 6-8-23 Trump is indicted. Finally. Thirty-seven counts. Felonies. Trump is accused of harboring hundreds of classified documents dealing with, defense and weapons capabilities of both the United States and foreign countries; United States nuclear programs; potential vulnerabilities of the United States and its allies to military attack; and plans for possible retaliation in response to a foreign attack.
  • Classified documents were stored in multiple unsecured locations at Mar-a-Lago;
  • On at least two occasions, Trump showed classified documents to persons not cleared to see them;
  • Trump obstructed the grand jury investigation by:
  • suggesting that his attorney falsely represent to the FBI and grand jury that Trump did not have documents called for by the grand jury subpoena;
  • directing co-defendant Waltine Nauta to move boxes of documents to conceal them from Trump’s attorney, the FBI, and the grand jury;
  • suggesting that his attorney hide or destroy documents called for by the grand jury subpoena;
  • providing to the FBI and grand jury just some of the documents called for by the grand jury subpoena, while claiming that he was cooperating fully; and
  • causing a false certification to be submitted to the FBI and grand jury representing that all documents called for by the grand jury subpoena had been produced while knowing that, in fact, not all such documents had been produced;
  • Trump was personally involved in causing boxes containing hundreds of classified documents, to be transportedfrom the White House to The Mar-a-Lago Club;
  • Trump directed the move of some classified documents to non-secure locations at his Bedminster Club;
  • Despite public statements to the contrary, Trump was fully aware that he had not declassified the documents while he was president;
  • Trump and his co-defendant withheld key information from Trump’s attorneys regarding the location and number of document boxes at Mar-a-Lago;
  • Trump knowingly procured a false certification by one of his attorneys regarding the classified documents at Mar-a-Lago;
  • As a result, Trump was charged with:

Willful Retention of National Defense Information in violation of 18 U.S.C. § (e)

 Conspiracy to Obstruct Justice in violation of 18 U.S.C. §1512(k)

Withholding a Document or Record in violation of 18 U.S.C. §§ 1512(b)(2)(A), 2

Corruptly Concealing a Document or Record in violation of 18 U.S.C. §§ 1512(c)(l), 2

Concealing a Document in a Federal Investigation in violation of 18 U.S.C. §§ 1519, 2

Scheme to Conceal in violation of 18 U.S.C. §§ lO0l(a)(l), 2

 False Statements and Representations in violation of 18 U.S.C. §§ 1001(a)(2), 2

 All the allegations are supported by documents, testimony, photographs, and recordings.

TRUMP’S “DEFENSES” [Or “What, Are You, Nuts?]

[Warning: Do not eat or drink while reading this next part]

The willful ignorance of Republican politicians brings to mind Sam Cooke’s anthem song with the perverse (in current circumstances) title of Wonderful World:

Don’t know much about history
Don’t know much biology
Don’t know much about a science book

Don’t know much about the French I took
But I do know that I love you
And I know that if you love me, too
What a wonderful world this would be ….

One person who loves Trump is the Republican Speaker of the House, Kevin McCarthy, who just hours after the unsealing of Trump’s 37-count felony indictment threatened the U.S. Attorney General, stating that House Republicans “are not going to stand for” the criminal prosecution of the ex-president. McCarthy, in keeping with the observations above, claims Trump is being treated differently than others, even though no one in modern times has committed the treasonous acts for which the evidence against Trump is overwhelming. No one.

The Republican idea of “equal justice” is to treat Trump better than everyone else. Trump had numerous chances to get true equal treatment; all he had to do was return the documents and, if, and it’s a massive ‘if,’ he had a claim to them, pursue it through legal channels. Instead, he chose self-help and then engaged in a coverup. By grossly misstating the legal processes by which the Trump indictment was issued, McCarthy proved he is just as dishonest as Trump himself, a believer in what Kellyanne Conway, acting as counselor to Trump, cynically called “alternative facts.”

McCarthy’s sycophancy is not peculiar to him. In his usual manner of double-talking between law, politics and delusion, Alan Dershowitz produced this preposterous standard for judging Trump’s conduct: “the Richard Nixon test.”https://tinyurl.com/5y6zz4yv (Fox Business. Where else?):

“It has to be at least as strong as the case against Richard Nixon, which we will remember led not to Democrats to demand his resignation, but Republicans, his own colleagues came to him and said, this case is so strong that we can’t support you,” Dershowitz said Friday on “Mornings with Maria.” “I haven’t seen any suggestion that Republicans agree with this indictment,” the professor continued.

Translated to simple English, Dershowitz thinks the proper legal test for Trump’s document crimes is whether Republicans approve of his being indicted. Wow. How the mighty have lost their way. Dershowitz had more to say:

American citizens, Dershowitz argued, should be able to cast their votes for those candidates who align with their social, economic or foreign policy views as opposed to “who’s more criminal.”

The professor argued there “has to be equal justice” served as he pointed out Republicans will likely speed up their investigation into Hunter Biden and the Biden family foreign business dealings.

“If I were a Republican leader, what I would do is draft a potential indictment against Biden and his son based on the information that’s now available, and present that in the court of public opinion in juxtaposition with the indictment that will come down on Tuesday,” Dershowitz said, “and let the public judge.

Dershowitz apparently believes that the reality and nature of Trump’s crimes is simply irrelevant to whether he should be president again.

Dershowitz seems to have forgotten about the long history of the Trump family’s foreign entanglements, including massive infusions of cash from Saudi Arabia. But I am for “equal justice” too. If there is evidence of corruption in the Biden family that relates to the president doing his job, bring it.  So far, nothing but phantasmagorical claims based on missing or criminally indicted “witnesses.” It looks a lot like the claims of election fraud that Trump and his cronies repeatedly asserted without evidence. Republicans are the reincarnation of the Gang That Couldn’t Shoot Straight.

Meanwhile, otherwise responsible media continues to bemoan the fact that a former president is being charged. The Washington Post Editorial Board wrote on June 9 that,

No one should celebrate Thursday’s indictment of Donald Trump in a case involving classified documents improperly stored at his Mar-a-Lago estate. Something has gone deeply wrong when, in a historic first, federal prosecutors reach the point of filing criminal charges against a former and possibly future president. Yet, in this matter, the defendant appears to have left them little choice.

[https://www.washingtonpost.com/opinions/the-posts-view/]

On the contrary, all patriotic Americans should applaud the fact that “equal justice” means what it says and that one’s political status does not confer privileges to violate the law that applies to others. The Post finds the allegations against Trump “disturbing” as if they related to shoplifting a shirt at Macy’s. And USAToday continues to publish click-bait pieces like this one: Donald Trump was indicted over classified documents. Why aren’t Joe Biden and Mike Pence? https://tinyurl.com/5xv63mjh

Concerns have justifiably arisen about the bizarre fact that the Trump-appointed judge in the documents case is the same judge that was reversed in dramatic terms by the 11th Circuit for gross errors of law and bias toward Trump. Jack Smith is unlikely to tolerate much funny business from her but there are clearly risks in her overseeing a criminal trial like this, given her lack of experience and apparent lack of judgment. Time will tell.

Trump is in serious trouble as his standard stratagems of delay and obfuscation are, one by one, falling apart. He appears to be destined for trial in the Mar-a-Lago documents case and for new indictments related to the January 6 fake-electors scheme and the January 6 insurrection. These cannot come soon enough, particularly since, reports already indicate that Judge Cannon is falling all over herself to stall the case against Trump. https://tinyurl.com/yck42wbt  She should be removed from the case before it’s too late.

If fair-minded juries are chosen and the trials are fairly administered, Trump will surely be convicted of multiple felonies, along with, hopefully, many of his co-conspirators.

Trump will then go down in history – down being the correct word here – as what he is: the worst criminal ever to occupy the White House. He will join the legions of failed putative dictators and other men that fortune falsely anointed as “great men” but whose ignorance and greed undid them. Trump loves to do his form of “dance” at rallies to the YMCA song to show that he’s young, virile, and cool, but his real song should be Send in the Clowns to distract from the reality that his day of reckoning may finally, at long last, be approaching.

Hubris and the Junk Heap of History – Part 1

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Watching the descent of Donald Trump from indecent, corrupt, selfish, ignorant, and foolish to deliberate gross criminality that put the national security of his country at risk raises yet again the question of how someone with his alleged wealth, claimed high level of education and all the opportunities for success imaginable falls to such a state. And it’s not just Trump and his constantly grifting family to whom the question fairly applies.

The elected leaders of one of the two major political parties continue to support a candidate for leader of the country and commander-in-chief of the armed forces who has been twice-impeached (the party refused to hear the overwhelming evidence of his guilt) and now twice-indicted for multiple felonies, including threats to national security and against whom the evidence is, yet again, overwhelming. And more felony indictments are virtually certain regarding Trump’s attempt to overthrow the government on January 6, 2021, and remain in power despite his defeat in the 2020 election. Such is the reality of the Republican Party today that has aided and abetted many of his most criminal and dangerous behaviors.

MAGA Republicans, it seems, can keep multiple inconsistent ideas in their “minds” simultaneously without experiencing disabling cognitive dissonance. They can, for example, treat as “equal” situations that are plainly not “equal.” Examples of this behavior abound. They are masters of deflection: whatever Trump may have done (“who cares anyway”), someone else did something worse and was not punished so Trump should not be held accountable either. And on and on.

Interestingly, none of Trump’s most ardent supporters claim, “he didn’t do it.” Rather, they argue that he should not be punished under the law for what he did because,

            It’s a witch hunt;

            Others are more guilty of something or other;

            The investigations are “politically motivated”;

            Trump did “nothing wrong”;

            It was all antifa and Black Lives Matter

            Or it was the “deep state” out to get Trump

            Trump was framed [my personal favorite].

All very familiar Trump tropes.

Recall that Donald Trump said this: “I have an Article II where I have the right to do whatever I want as president.” And Trump thinks he is still the president.

As I have ruminated on what is happening here and why, I have, tentatively, come to some new conclusions. While I have never known anyone wholly like Trump, I have over my long life and career encountered many “successful” Type A people, almost all men, who share many characteristics with Trump.

I now believe, tentatively, that most men like Trump began their lives with various advantages that made them “successful standouts” at an early age. This phenomenon may go all the way back to grammar school, when the first genuine socialization behaviors are displayed. These are the boys who, regardless of actual talents, are always deferred to when teams are picked at recess or after school for pick-up sports. They are selected by default to pick the players they want on their side. The selection process is merciless and is repeated over and over day after day.

These same boys tend to be socially popular with both boys and girls. They exude confidence that is reinforced constantly at home and everywhere else. They are molded into dominant figures, accustomed to having their way, to being favored, to being successful in virtually everything they do. Often, they are rewarded in areas in which they do not excel because of their perceived status in other areas.

This reinforcement continues through high school and beyond. These men are the anointed “leaders” whose merit and status are rarely if ever questioned. They are, to paraphrase a line from the movie, Barry Lyndon, not the smartest, the quickest, the bravest, the most talented. They are, simply, the “best people.” And because they are so regarded, they are beyond reproach even when their behavior would otherwise warrant and even require condemnation and sanction.

Emergent from this process is a sense of self-worth, of self-regard that distorts their understanding of reality. Other men, and many women, are impressed by their self-confidence, their “authority,” that is evident in how they present themselves, independent of any objective reality as to their actual talents or worth.

The end of this process is, however, at least in my experience, almost always the same. Donald Trump is the purest manifestation of it. The hubris that develops blinds these men to the truth of their situation. They see themselves as untouchable, not subject to the same rules that govern everyone else.

How could they not? U.S. Senators and Congressmen (and now women) are fawned over, treated as special in every way, sought after socially, given power unrelated to their intelligence or actual skills. They are, after all, the “best people.” It’s just who they are. Or so they believe. American culture tends to venerate and elevate these men (mostly men).

The same is true of many “successful” businessmen. They may be dolts. They may be corrupt. Doesn’t matter. They are who they are – the winners, the top dogs. Media fawn over their every word, adding to the illusion of their superiority. These men attract money, followers, devotees – passionate supporters who need to share the penumbra of their worthiness.

Until they aren’t worthy. Until the sheen of invincibility is shattered by revelations of the lack of merit that has been concealed for so long beneath the veneer.  Examples are everywhere. Take the Cuomo brothers, Andrew and Chris. The sons of Mario Cuomo, the three-term governor of New York. https://en.wikipedia.org/wiki/Mario_Cuomo Mario Cuomo came from the humblest of circumstances – the family ran a grocery store in Queens. But he was highly intelligent and very ambitious. A powerful, dominating figure.

So too his sons. Yet, both have fallen from their pedestals, for different but related reasons. Then there is Rudy Giuliani, once called America’s Mayor for his post-9/11 “leadership.” By all accounts, he was highly intelligent and ambitious but, he too, fell from grace when he embraced Donald Trump’s brand of “truth.” https://en.wikipedia.org/wiki/Rudy_Giuliani

Consider the actor Will Smith. Highly talented and successful until he decided, and make no mistake it was a decision, to attack the Oscars’ host on live television for making a tasteless joke about his wife. Smith may recover. The Cuomo brothers and Giuliani may not.

Let’s not forget this: Trump Will Not Apologize for Calling for Death Penalty Over Central Park Five. https://www.nytimes.com/2019/06/18/nyregion/central-park-five-trump.html Presaging his views on the Charlottesville Unite the Right rally in 2017, involving alt-right, neo-Confederates, neo-fascists, white nationalists, neo-Nazis, Klansmen, and far-right “militias:  “You have people on both sides of that,” the president said when asked about the wrongly convicted defendants.”

So it goes. Over and over again. A seemingly endless progression of “great men” brought down by their own hubris – defined in dictionaries as ‘excessive pride or self-confidence.’ They come to believe they are untouchable, beyond reproach regardless of what they do. And in some sense their perception is correct, demonstrated by Trump himself in the way he has managed to not only survive but prevail, despite multiple obvious crimes, despite business mismanagement and multiple bankruptcies, and despite multiple credible allegations of sexual abuse and assault.

[to be continued in Part 2]

Moments Later – ABC News Again

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Almost immediately after posting the previous post, I came across this from ABC News:

Once again, the video with the story is about Donald Trump and promotes the idea that he is innocent. The story is about the tragedy of the sinking of the tour boat with loss of life. SHAME on ABC for using this to promote Donald Trump.

ABC News appears to be taking over where CNN left off.

ABCNews — What is Going On Here?

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The headline and story is about a fire and the collapse of the roadway on I-95, the major north-south interstate between, among many others, Washington, Philadelphia and New York. The video is Donald Trump declaring his innocence!

How can this be explained?  What is ABC News doing?

Michael Cohen is a Better Man than Donald Trump

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Michael Cohen, Donald Trump’s former attorney, did something very important that Trump has never done and will never do. He admitted to lying to the government along with other crimes and accepted his punishment. He served prison time and was disbarred. I write this not to admire Michael Cohen. He fell under the sway of Donald Trump, committed crimes and got what he deserved.

Donald Trump has told many thousands of lies, documented by the Washington Post fact checkers and many others, continues to lie about the 2020 election, the January 6 insurrection, the stolen secret government files he sequestered at Mar-a-Lago and refused to return, and has lied the multitude of other crimes he has committed.

Trump still walks free, and the media are in a frenzy over the fact that Trump is about to be arraigned in New York City for a host of criminal charges. Finally. And unlike Cohen, Trump continues to lie and rage at the District Attorney and everyone else who thinks he should be held accountable for his crimes.

I’m not going to spend more time on this. I just wanted to note for the record that Michael Cohen, who is being vilified by Trump and his defense counsel, not to mention the other sycophants who don’t care what Trump does., is a better man than Donald Trump. Not a perfect man, obviously. But better than Donald Trump by light years.

Fascism in Florida – Come & Get Me

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Subtitle: Your papers, please.

Subtitle: “We must believe in the power and the strength of our words. Our words can change the world.” – Malala Yousafzai

*******************

Florida Senator Jason Brodeur has introduced legislation (2023 SB 1316) to, among other things, require bloggers who are compensated in any way for articles “about” certain state officials (including the governor) to register with the state and file regular reports.

Brodeur is a Republican (I know, I had you at “Florida Senator”). Brodeur’s background can be read here: https://www.flsenate.gov/senators/s10/?Tab=Personal  He is not stupid, in the sense that he has earned a Master’s in Public Health from Dartmouth College. That can’t be easy. But, of course, we’ve learned that intelligence and high educational achievement do not necessarily produce rational or coherent politicians. See, e.g., Josh Hawley and Ted Cruz.

Brodeur is a very busy guy – he has nine committee assignments. But he’s not too busy to propose a law that must have been copped from a first-year law school exam question: “draft a law that violates the First Amendment in at least ten ways.”

Brodeur’s brainchild legislation applies to bloggers who receive “anything of value” for posting blog pieces “about” Florida political leaders. “Blogger” means “any person as defined in s. 1.01(3) that submits a blog post to a blog which is subsequently published.”  If the “anything of value” is not currency, then the term means the fair market value of the item or service received. The triggering action includes that the blogger has received or “will receive” compensation and thus requires registration even if the blogger has only been promised something of value, whether or not it is actually received later.

I have questions. First, what is “anything” in “anything of value?” Are “likes” posted in response to the blog post “anything of value?”  How about readers’ reposts on other blogs? What if someone just sends me money as a “reward” for my bold reporting of the truth about Florida politicians? So many questions.

I could not find “s.1.01(3)” that the bill says contains the definition of “blogger.” Search and Advanced Search of Florida statutes turned up no documents. Search of the proposed bill for the definition – same, nada. But you can get there by additive analysis of the key operative language.

Missing, however, is any geographic limitation, leaving the question whether the bill’s authors intend it to apply to bloggers everywhere. I can’t wait. I’m going to send this post to the bill’s author and ask if I’m in violation. Come for me. Please. Pulleeesee come for me. I’ll be visiting Florida in a few weeks, so if you guys hurry, you can make me a violator while I ‘m there. While there, I plan to publish another blog post entitled, Governor DeathSantis – Herald for the Second Dark Age. I can reasonably guarantee that Hiz Honor, the Govnah isn’t going to like it.

Back to the merits. The Brodeur bill requires bloggers whose post is “about” an “elected state officer” or “mentions an elected state officer” to register with the state within five (5) days after the posting. An “elected state officer” includes the “Governor, the Lieutenant Governor, a Cabinet officer, or any member of the Legislature.” Once registered, the blogger must file monthly reports, unless the blogger does not have “a blog post” on a blog during a given month. Presumably, “a blog post” refers to only those that “mention” an “elected state officer” in some way, but this is unclear.

No time limit for the reports can be found in the bill so presumably the filing requirement continues in perpetuity unless the blogger stops blogging about “elected state officers.” That, of course, is the point, isn’t it? To use the power of the state to suppress criticism of elected politicians.

But wait, there is more. The bill states exactly what must be reported:

  • The individual or entity that compensated the blogger for the blog post.
  • The amount of compensation, rounded to the nearest $10 increment, received from the individual or entity, regardless of how the compensation is structured.
  • If the compensation is for a series of blog posts or for a defined period, the blogger must disclose the total amount to be received upon the first blog post being published. Thereafter, the monthly report must disclose the actual date(s) of additional compensation received for the series of posts.
  • The date of publication of each post.
  • The website and website address where the blog post can be found.

Late reports are subject to fines of $25 per day late subject to a maximum of $2,500 per report. Fines are paid into trust funds created by Florida law to fund the administration of lobbyist registrations, including salaries and other expenses and to pay expenses incurred by, for example, the state legislature in “providing services to lobbyists.” The state legislature provides “services to lobbyists?” What?

Thus, the underlying concept of this legislation is that blog posts “about,” say, a legislator are by legislative fiat, lobbying and are to be treated as such for purpose of fining late-filed reports. This is so even if the blog post is in no way related to attempts to influence legislation. A blog post “about” a state legislator might be an exposé of asserted corruption by the legislator, but if the blogger doesn’t file the report on time, her fines are to be paid into the legislative fund for managing lobbying registrations and the cost of services for lobbyists.

Brodeur was quoted in an interview claiming that people who write about the legislature are indistinguishable from lobbyists who talk to legislators. What? Do lobbyists in Florida openly criticize the legislators whose favor they’re seeking? Not likely. People who write critically about legislators (for present purposes, “bloggers”) are in no way similar to lobbyists who try to curry favor with legislators to get (or prevent) legislation.

Even Newt Gingrich has labeled this legislation “insane” and an “embarrassment.” Yes, it’s true. Even the Newtster thinks this legislation is nuts. He urged its withdrawal. https://bit.ly/3ZPeXYc Not likely. Your papers, please.

I will not waste more time on this nonsense. The notion that a state government can compel a compensated person (“anything of value”) who writes “about” the Governor or a legislator of the state to register and file reports is so blatantly a violation of the First Amendment to the U.S. Constitution that detailed analysis is unnecessary. Recall that Florida is among the leading states banning books about various aspects of American history that politicians don’t want anyone to read. If the Republicans in Florida have their way, the state will have justly earned renaming to Gilead.

Stay tuned for publication of Governor DeathSantis – Herald for the Second Dark Age. I will never register nor pay a dime in fines to Florida so ….

The Answer is Blowin’ in the Wind

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Those of you close to my generation will recognize that phrase as part of the refrain from Bob Dylan’s famous song that became a 1960s anthem against oppression and war. The song was made broadly famous by Peter, Paul & Mary, singing it here in 1966: https://bit.ly/3J6WK2w Joan Baez, among others, sang it in 1967: https://bit.ly/3SHSEB8

The lyrics to that song came immediately to mind when I read the report that the Department of Justice has, at long last, rejected Trump’s claims to be above the law. DOJ filed a brief arguing that Donald Trump’s claims of “absolute immunity” from civil suits must be limited at least regarding the January 6 abomination he sent to descrate the Capitol  https://bit.ly/3moh3jm

You know the story: Trump summoned the mob to DC and incited them to attack the Capitol to stop the final certification of Joe Biden’s electoral victory. True, he mentioned in passing that they should be peaceful, but that was classic Trump. Say one thing, then the opposite again and again. He also said, for example, “if you don’t fight like hell, you’re not going to have a country anymore.” His message was received loud and clear as evidenced by what the mob did. One of the many remarkable videos was produced by the New York Times, showing exactly what happened: Day of Ragehttps://nyti.ms/3mlhISw Many of those later arrested have testified under oath that they understood Trump had invited them to Washington and urged them to do just what they did.

Those revelations can come as no surprise to anyone with a fully functioning mind. Recall that Trump famously said, “I have Article II where I have the right to do whatever I want as president.” It’s on tape. He said it. He believed it. Still does. Often wrong, but never in doubt.

As recounted in the USAToday story, a group of House Democrats filed two civil suits and two Capitol police officers filed the third one. USAToday reports that Trump’s lawyers have argued to the Court of Appeals for the District of Columbia Circuit that, “The underlying question here is simple: is a president immune from civil liability when he or she gives a speech on a matter of public concern? … The answer is undoubtedly, yes.”

The Department of Justice rejected that position: “The district court also correctly rejected President Trump’s categorical assertion ‘that whenever and wherever a President speaks on a matter of public concern he is immune from civil suit.’”

Let’s briefly examine the “absolute immunity” claim. Let’s pretend you’re in law school. You adopt Trump’s position that he was addressing the election results, a “matter of public concern” and thus just “doing the job of the president.” He should, you contend, be immune from vexatious and meddlesome civil suits [law students love to talk like that] that could interfere with his ability to carry out his many constitutional responsibilities.

Having adopted the role of professor of law, I hook my thumbs in my vest [law profs love vested suits, or did back in the day], frown, pace a bit, spin, and face you: “That sounds pretty good, doesn’t it? Don’t we have to protect the nation’s chief executive and chief law enforcement officer from being hauled into court every time he says something that someone doesn’t like? Isn’t it true that someone always objects to virtually everything the president, any president, says?”

You smirk at having been recognized as oh-so-clever as to receive that rare law school commodity: praise from a professor. You are sure the other students are burning with envy at your achievement and recognition.

Then I, thumbs out of the vest now, lean forward closer to you, and you start to get a queasy feeling. I glare into your eyes and ask, “but suppose the president’s January 6 speech included this statement:

…and if you meet resistance from police at the Capitol, just knock them down, beat the hell out of them. Anybody gets in your way, kill them. I don’t care, but get the job done. Safe our country! Save meeee!

President still immune? Suppose Trump further said, “Mike Pence, the vice president I mistakenly chose to elevate from well-earned obscurity, failed to do his job. He needs to be set straight. Punished if he won’t do what needs to be done. If he refuses to comply, I say, Hang Mike Pence! Repeat after me, Hang Mike Pence! Hang Mike Pence!”

You spend the rest of class looking at your shoes, wondering why you didn’t just get a job.

You think back to Trump’s penchant for lying and making outrageous claims, then, when called out for it, saying, “oh, that? I was just joking.” On January 6, his followers knew he wasn’t joking. They understood exactly why he summoned them and what he wanted them to do.

The claim of “absolute immunity” is utterly implausible in a country with a democratic republican Constitution that sets up a three-part balance of power structure in which each of the three main branches acts as a check on the other two. It makes for complex problems and many troublesome questions, to be sure. Democracy is “messy,” according to a popular formulation. But one thing is clear: no man is above the law.  A president who incites violence in an effort to interfere with constitutionally mandated processes designed for the peaceful transfer of power must be held accountable by those directly harmed by his conduct.

Now, to return to our law school conceit for a bit longer, some will argue that the proper method for holding the president accountable is impeachment and nothing more. Impeachment certainly would work … if it worked. But Trump was impeached twice and not convicted because the Republican members of Congress refused to hear all the evidence, refused even to hear witnesses, and announced they would support him even before the “trial” occurred. Republicans thus made that constitutional process a sham.

It follows that the inherently political process of impeachment is not sufficient to hold a president accountable for inciting violence that harms not only the democratic system but individual citizens as well. Therefore, there must be another remedy.

To paraphrase Trump, if you don’t hold a president accountable for inciting insurrection, you’re not going to have a country anymore.

Now to conclude today’s lesson, let’s look at the broader implications of the position taken by the Justice Department. Despite what I’ve said above, I have little hope that the courts are going to agree with the Department of Justice. I am especially doubtful that the 6-Justice conservative majority on the Supreme Court, where the case is inevitably headed, is going to hold the president accountable as DOJ has proposed.

However, many observers, the writer included, have repeatedly expressed frustration that the Attorney General was going to let Trump skate despite his many crimes. While this set of civil cases is a far cry from a criminal indictment, the position taken by Justice signals that even its relatively conservative approach to “presidential law” has its limits. It may also signify that the Special Counsel appointed to independently investigate Trump’s many crimes has more juice behind his mandate than first appeared. Hope that it is so because our survival as a democratic republic depends on it. The answer, my friends, is blowin’ in the wind.

 [Pedagogical Note: in law school, the professor rarely jumped from one proposition you thought was right to the death blow to your sense of self-worth. Instead, they usually proceeded in small steps, slowly sucking the life out of what you thought was the intellectually plausible content of your thoughts, then delivering the coup de grace at the end. I have collapsed the dialogue in the interest of time and space. It was always worse.]

What Pence’s Subpoena Resistance Means

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Special Counsel Jack Smith has subpoenaed former Vice President Mike Pence to testify before a Grand Jury investigating attempts to overturn the 2020 election. Pence has stated he will not testify, citing the Speech & Debate Clause of the U.S. Constitution (Article I, Section 6, Clause 1). https://politi.co/3xw9GZs

That Clause states:

They [Members of Congress] shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

Pence claims that because his involvement in the coup was limited to presiding over the Congress’s final tally of electoral votes and certification of Joe Biden’s victory, he was acting in a “legislative capacity” and thus cannot be questioned.

On its face there are a multitude of problems with Pence’s position. First is that he has insisted, correctly, that his acts on January 6 were purely ministerial and that he lacked any discretion under the Constitution and laws to evaluate the validity of state vote counts or other acts leading to the election certification. His job was to open envelopes and announce their contents. This alone raises fundamental doubts about the “legislative nature” of what was intended to be protected by the Speech & Debate Clause.

Second, even if his January 6 actions were covered to some extent by the Clause, he cannot justify total refusal to be questioned about other matters arising out of the January 6 coup attempt and subsequent insurrectionist activities by Trump and others of which Pence may have knowledge. His immunity claim sweeps too broadly. In fact, it seems unlikely Special Counsel is much interested in Pence’s non-discretionary acts on January 6. Rather, the investigation more likely seeks his knowledge about actions by Donald Trump and others supporting his coup/insurrection attempt to overturn the election. As far as I am aware, Mike Pence conducted no legislative activities about any of that, other than his non-discretionary overseeing of the final electoral count tally.

Thus, Pence cannot plausibly argue that “because I performed one legislative act that day, I am immune from disclosing any information I may have about other matters related to the insurrection that day.”

To my knowledge, no one has suggested that Pence’s conduct on January 6 was questionable constitutionally or otherwise. Except Donald Trump, of course, who want berserk when Pence refused to go along with the false attack on the election.

Politico reports that Pence “feels it really goes to the heart of some separation of powers issues. He feels duty-bound to maintain that protection, even if it means litigating it.” Maybe, but it’s more than coincidental that, as Politico also notes, Pence’s resistance ”will allow him to avoid being seen as cooperating with a probe that is politically damaging to Trump, who remains the leading figure in the Republican Party.”

I do not understand how “Trump’s months-long crusade to pressure his vice president to derail Biden’s win — which is central to Smith’s investigation — focused entirely on Pence’s [ministerial] duties as Senate president, which legal scholars say lends credence to Pence’s case.” Josh Chafetz, a Georgetown University constitutional law professor, supports the argument that Pence may be on to something by observing that “a lot of the action here took place in terms of arguments about how he should rule from the chair.”

But the “action” around this issue was generated by Trump, not by Pence, who consistently resisted the argument that he had any more authority/responsibility on January 6 than opening envelopes and announcing their contents. Such “acts,” even if judged “legislative,” were not likely what the framers had in mind in protecting the legislators from encroachment by the other two branches.

Roy Brownell, former counsel to Senate Minority Leader Mitch McConnell has suggested that “Pence … could characterize his pre-Jan. 6 conversations with Trump and others as research into how he might rule on matters related to the Electoral College.” True, Pence could try that, but the courts are not bound by claims like that. Pence was researching anything and if he had been, it would certainly not have been by asking Donald Trump whose credentials as an expert on the Constitution are less than zero.

In any event, the question here is not whether some specific aspects of Pence’s conversations were privileged – he is refusing to testify at all, arguing that there is nothing the Special Counsel could legitimately ask him about his knowledge of Trump’s attempt to overthrow the government. That, I suggest, is facially preposterous and inconsistent with extensive case law on the limitations of privilege assertions in all contexts.

As reported elsewhere by Politico,

A three-judge panel of the Atlanta-based 11th U.S. Circuit Court of Appeals unanimously rejected the South Carolina Republican’s [Senator Lindsey Graham] claim that he is constitutionally immune from such questioning. Though Graham may not be questioned about any conversations he had in support of his legislative activity, the panel ruled, prosecutors may question him about his “coordination” with the Trump campaign to arrange his calls with Georgia officials, as well as efforts to pressure those officials amid their ongoing audit of Georgia’s presidential election results.

The Supreme Court declined to intervene on Graham’s behalf.

We should also have regard for the literalist interpretation of the Constitution favored by “conservatives” and “originalists.” The Speech & Debate Clause refers expressly to “Senators and Representatives.” The Vice President is neither of those. The fact that he has limited, ministerial duties to perform in the legislative branch every four years does not make him one. He is there as the Vice President, conducting ministerial, non-discretionary acts involving no legislative work.

United Press International reports that Pence said at a campaign rally:

I’m going to fight the Biden DOJ’s subpoena for me to appear before the grand jury because I believe it’s unconstitutional, and it’s unprecedented. No vice president has ever been subject to a subpoena to testify about the president with whom they served. [https://bit.ly/3lC9Co9]

Unprecedented it may be, but no president has ever tried to overthrow the government and reinstall himself despite having lost the election. Arguing the lack of precedent just doesn’t work here.

At the end of the day, what Pence’s position comes down to is this: he is desperate to appease Trump’s loyalist political base and in fact supported Trump’s attempt to overturn the election while cleverly, but rightly, refusing to actively participate in the coup attempt. Pence wants it both ways – no responsibility for the insurrection but avoiding the appearance of attacking Trump, while simultaneously undermining Trump. He hopes Trump’s loyalists will overlook his refusal to play along on January 6 if he appears to defend Trump while not actually defending him.

Pence thinks Trump’s loyalists are a bunch of cultish dopes who will, when push time comes, choose him as Trump’s successor.

Pence is only slightly less a traitor than Trump. Special Counsel Smith is not going to fall for this nonsense and should vigorously contest Pence’s claim to immunity from subpoena by the Grand Jury.