Category Archives: Politics

Judge in Trump’s Pocket Played Like a Fiddle

“Power tends to corrupt and absolute power corrupts absolutely. Great men are almost always bad men even when they exercise influence and not authority.”

So wrote John Emerich Edward Dalberg-Acton, 1st Baron Acton, an English Catholic historian, politician, and writer who lived from 1834 to 1902. No better contemporary example of Baron Acton’s statement exists than Donald Trump. The same Trump who having falsely promoted the Big Lie that he was denied re-election due to massive voter fraud. The same Trump who directed a failed attempt to overthrow the government and install himself as president-emperor. The same Trump who stole multiple classified government documents and removed them to an insecure facility in his Florida mansion.

In the same fashion that he has conducted his entire life, Trump is now fighting desperately to stop the Department of Justice from indicting him for that theft. He is using the courts, aided by a judge he appointed, and issuing threats of violence if he is held accountable for his actions.

Word is that Trump pre-paid millions of dollars to induce a lawyer to represent him, given his long history of refusing to pay lawyers and others who worked for him.

This saga has many parts. I will try to simplify them.

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Let’s be clear about a few things at the outset. Trump made no mere “mistake” in removing top secret and other classified documents from the White House during his last days there. He meant to take them, meant to keep them and, most likely, meant to use them for personal profit. The documents and folders are clearly marked with classifications. No person with reasonably normal vision could have mistaken the nature of those documents.

Second, there is no evidence that Trump declassified the documents while he was president. None. Zero. There are elaborate procedures for declassifying documents and an evidentiary record of such actions would have been created. That record has not been produced because it doesn’t exist. The declassification defense is just another Trumpian lie being used by Trump’s lawyers to obfuscate and delay. Remember this question of declassification as you read on. It is the punchline of Trump’s latest “joke’s on you.”

None of this should surprise anyone who has been paying attention for the past five years.

Trump has shown time and again that he lacks respect for American institutions and the checks and balances that preserve our democracy. Trump’s interests are entirely transactional and acquisitive. His conduct in office repeatedly showed a complete lack of concern for national security. He regarded the documents from his presidency as belonging to him – his private property notwithstanding the federal laws on preservation of records. Indeed, Trump clearly did not regard the law, any law, as applicable to him. As he famously said, “I have an Article II, where I have to the right to do whatever I want as president.”

Third, Trump is no longer the President of the United States. His lawyers are as confused about that reality as Trump himself. Forms of address matter and referring to Trump as “The President” or “President Trump” is misleading. Trump is not the president. His term ended January 20, 2021. Of that there is no doubt.

Fourth, and finally, one of the basic tenets of legal argument is that you should not try to prove too much. I will explain below how that principle undermines Trump’s position.

The Chronology

The timeline is well known:

January 6, 2021 – Donald Trump, unable to establish a legal basis for remaining in office, sends a violent mob to stop the government from certifying the election of Joe Biden

January 20, 2021 – Joe Biden inaugurated as 46^th President of the United States – Trump leaves the White House with many boxes of materials

Months pass – some classified documents are returned, others are withheld, and their existence denied

August 5, 2022 – Search Warrant approved based on showing of probable cause to believe multiple serious crimes committed

August 25 – Court order approving release of redacted search warrant affidavit

The Search Warrant Affidavit

The original affidavit for the search warrant makes clear:

(1) DOJ is conducting a “criminal investigation concerning the improper removal and storage of classified information in unauthorized spaces, as well as the unlawful concealment or removal of government records;”

(2) after some boxes of documents were returned, it became clear that “there is probable cause to believe that additional documents that contain classified NDI or that are Presidential records subject to record retention requirements currently remain at the [Mar-a-Lago] in an unauthorized and insecure location. There is also probable cause to believe that evidence of obstruction will be found at [Mar-a-Lago];”

(3) there was also “probable cause to believe that the locations to be searched at [Mar-a-Lago] contain evidence, contraband, fruits of crime, or other items illegally possessed in violationof18 U.S.C. §§ 793(e), 1519, or 2071;”

(4) “Classified information of any designation may be shared only with persons determined by an appropriate United States Government official to be eligible for access, and who possess a “need to know;”

(5) “highly classified records were unfoldered, intermixed with other records, and otherwise unproperly [sic] identified;”

(6) repeated requests for return of classified documents were made for more than six months before the National Archives was informed that 12 additional boxes of records were found;

(7) the initial 15 boxes of documents contained 184 documents bearing classification marks;

(8) Trump’s lawyer told DOJ the former president “has absolute authority to declassify documents;” [but did not say that he had in fact declassified them]

(9) a Trump administration official publicly claimed, without proof, that Trump had declassified all the documents at Mar-a-Lago;

(10) DOJ thus concluded that “probable cause exists to believe that evidence, contraband, fruits of crime, or other items illegally possessed in violation 18 U.S.C. §§ 793(e), 2071, or 1519 will be found at [Mar-a-Lago].”

The Less-Redacted Search Warrant Affidavit

Following more legal filings, a less-redacted version of the search warrant affidavit was filed and publicly released. After comparing the two versions, very few new facts were revealed:

(1) the June 3 release of documents to DOJ was by prior arrangement with Trump’s attorney who represented in writing that there were no more classified documents remaining at Mar-a Lago;

(2) the June 3 release contained an additional 38 documents with various levels of security classification;

(3) Trump’s lawyer did not claim that the documents had been declassified;

(4) DOJ soon learned about, and obtained, security camera footage covering the storage room in Mar-a-Lago but the affidavit material discussing that footage remains redacted.

Note again that the Trump counsel letter asserting the president’s “absolute authority” to unilaterally declassify documents stops short of asserting that Trump actually declassified any of the classified documents found at Mar-a-Lago. One of the most illuminating aspects of the arguments made by Trump’s lawyers is how careful they are to avoid asserting as fact that he declassified any of the seized documents while in office. They make much of his presumed powers to declassify but never say he did so. [Hint: this will soon become one of the most blatant deceptions of a willing dupe, the Trump-appointed judge to whom the case was assigned]

The Raid on Mar-a-Lago

DOJ subsequently raided Mar-a-Lago and took possession of many additional classified documents that Trump’s representatives had claimed were not there.

In keeping with prior Trump practice, a lawsuit was filed to delay the criminal investigation of Trump by seeking appointment of a Special Master to review all the documents. A Trump-appointed judge agreed, over DOJ’s strong objections, to appoint the Special Master and ordered DOJ to stop its criminal investigation.

Trump’s Judge Issues Bizarre Decision to Delay Criminal Proceedings

The judge’s order that reads more like a political polemic than a sound judicial evaluation of the competing claims about the documents. But it’s worth noting some of the findings made by the judge:

“based on the volume and nature of the seized material, the Court is satisfied that Plaintiff has an interest in and need for at least a portion of it”
Despite that statement, the court’s decision applied to all the seized documents
Trump would be “deprived of potentially significant personal documents, which alone creates a real harm”
Trump made no effort to show a particularized need for any of the seized personal materials that had been haphazardly stored in the Storage Room at Mar-a-Lago for many months, even after he knew DOJ was interested in them
Trump might suffer “unquantifiable potential harm by way of improper disclosure of sensitive information to the public”
No evidence was cited by the judge as to what “sensitive information” of a personal nature was in the documents and Trump cited none
“[Trump] has claimed injury from the threat of future prosecution.” This finding is astonishing. Judge Cannon is completely off the rails here – the threat of criminal prosecution is present in every criminal investigation and is, indeed, the purpose of document discovery which in this case was being conducted pursuant to a grand jury subpoena. If this threat were grounds for a Special Master review, such a review would be automatic in every criminal investigation, and it’s not.
“As a function of Plaintiff’s former position as President of the United States, the stigma associated with the subject seizure is in a league of its own. A future indictment, based to any degree on property that ought to be returned, would result in reputational harm of a decidedly different order of magnitude…. the Court takes into account the undeniably unprecedented nature of the search of a former President’s residence.” Here the judge gives up all pretense and declares that Trump, as a former president, should have privileges accorded to no other citizen under criminal investigation.
This point is further established by the court’s later reliance on “[Trump’s] inability to examine the seized materials in formulating his arguments to date – the documents had been requested multiple times over many months during which Trump had ample opportunity to evaluate what he had. His failure to act should not confer an advantage in an argument about the equities of the situation.
The judge further cites “Trump’s stated reliance on the customary cooperation between former and incumbent administrations regarding the ownership and exchange of documents.” The judge claims to be unaware of the Fact that the Trump administration for an extended period refused to cooperate in the transition to the Biden administration. This cannot be true unless Judge Cannon has been living under a rock for the past few years. The refusal to cooperate was widely reported for an extended period.
Apparently determined to ignore the Fact of the classified markings on hundreds of seized documents, Judge Cannon treats everything as Trump’s personal material: “this is not a situation in which there is no room to doubt the immediately apparent incriminating nature of the seized material.”
Finally, the judge declares that the possibility of Trump’s having an interest in the comingled personal items seized is sufficient to warrant a Special Master for ALL the documents, including those marked classified! Trump’s decision to mingle the documents and later decline to examine them when demanded by DOJ is thus used as an excuse to give Trump a litigation advantage against the government.

This opinion will likely be the subject of law school examinations in future years as indicative of how judicial bias can undermine the rule of law. It almost certainly would receive a failing grade at any creditable law school if presented in answer to an exam question.

DOJ’s Motion for a Partial Stay

DOJ filed a motion for a stay of Judge Cannon’s order only as regards the classified documents and the ongoing criminal investigation related to the unlawful removal and improper storage of those documents. As to the seized classified documents, DOJ argued, among other points, that,

[Trump] does not and could not assert that he owns or has any possessory interest in classified records; that he has any right to have those government records returned to him; or that he can advance any plausible claims of attorney-client privilege as to such records that would bar the government from reviewing or using them.

[Trump], however, has no right to the “return” of classified records, which are not “his” property.… Classified records also are not “personal” to [Trump] and would not reveal any sensitive personal information.…. Accordingly, [Trump] has no cognizable “individual” interest in any classified records (or in having a special master review those records), and he cannot be “irreparably injured” if such records are not returned to him.

Trump Claims Personal Ownership of Government Records

That should have been the end of it, but, as usual, Trump continued to argue. His response to DOJ’s motion for partial stay characterized the case as a “document storage dispute” in which “the Government wrongfully seeks to criminalize the possession by the 45th President of his own Presidential and personal records.”

That utter nonsense stands right alongside Trump’s continued lie that the 2020 election was stolen.

Trump’s lawyers then argued that Trump had the right, and by implication only [no evidence], had exercised the right to convert federal government classified documents into his personal documents:

The [Presidential Records Act] accords any President extraordinary discretion to categorize all his or her records as either Presidential or personal records …. the former President has sole discretion to classify a record as personal or Presidential….

At best, the Government might ultimately be able to establish certain Presidential records should be returned to [the National Archive]. What is clear regarding all the seized materials is that they belong with either President Trump (as his personal property to be returned pursuant to Rule 41(g)) or with [the National Archive], but not with the Department of Justice.

Trump’s position at that point is that he simply cannot be criminally liable for mishandling documents of the highest secrecy classifications because … well, because he was president and well, he could, like he said, do whatever he wanted. Further, Trump’s argument is that the next president is powerless to uncover documents, including highly classified ones, that are evidence of a crime committed by the former president. That is not and cannot be the law.

If you’ve been following the “reasoning” closely, it has perhaps dawned on you that if Trump has the rights he claims to have – to convert secret government documents this personal property at will – then all other presidents must have had the same rights. Thus, for example, President Clinton could now assert personal ownership over documents that were classified during his presidency and compel their disclosure. Same for presidents Bush II, Carter, and Obama.

Trump’s argument, in addition to inconsistency with statutory and case law, proves too much and thereby violates a cardinal rule of advocacy. It should have been rejected outright.

Trump’s opposition to the DOJ motion for a partial stay also violates at least two other principles of advocacy. For example, he argues “the Government’s stance assumes that if a document has a classification marking, it remains classified irrespective of any actions taken during President Trump’s term in office.” But Trump’s team, following in the footsteps of the incompetents who failed in more than 60 attempts in the courts to change the outcome of the 2020 election, does not allege, yet alone prove, that he took any steps to declassify the seized documents while in the White House. Even if it were true that he had the powers he claims, he would have to show they were exercised. They weren’t and his lawyers know it. Their argument is pure sophistry.

The second, and closely related problem, is that Trump’s lawyers appear to believe he is still President of the United States. They refer to him in their legal papers as either the “former president” or as “President Trump,” whichever suits their claim of the moment. This is more sophistry. Trump is no longer president and has not been since January 20, 2021. He cannot, therefore, continue to exercise the powers granted to the president under the Constitution.

Consider for just a moment what the situation would be if Trump were right. President Biden would decide X policy as a matter of national security. Trump would countermand that policy, claiming he had the right to exercise the powers of the presidency indefinitely. Preposterous on its face.

Equally fatuous is Trump’s claim that he has the right to indefinitely restrict access to his “Presidential records” as defined in the Presidential Records Act. Putting aside that the statute cannot be construed to permit a president to conceal documentary evidence of a crime, the argument ignores 44 USC sec. 2202 that says, “The United States shall reserve and retain complete ownership, possession, and control of Presidential records….”

Whatever else Trump may be, he is not the United States.” And his claim that “there still remains a disagreement as to the classification status of the documents” lacks even the rudiments of a viable argument. Matters are not “in dispute” just because one party, without factual basis, claims they are. We know that Trump has made a lifetime practice of bald-faced lying but his attorneys are subject to a higher standard, as is the judge. They should be particularly sensitive to this because of the many failed attempts to overturn the 2020 election without evidence to support their outlandish claims.

Trump’s Judge Rejects DOJ’s Motion for Partial Stay

DOJ’s Reply In Support Of Its Motion To Stay Pending Appeal thoroughly eviscerates Trump’s claims that the Presidential Records in dispute are his personal property. Nonetheless, and unsurprisingly, Trump’s handpicked judge rejected DOJ’s position by giving full credence to Trump’s claim that “the record suggests ongoing factual and legal disputes as to precisely which materials constitute personal property and/or privileged materials …; and there are documented instances giving rise to concerns about the Government’s ability to properly categorize and screen materials.” The judge also continued to give controlling weight to Trump’s bootstrap argument that he “has not had a meaningful ability to concretize his position with respect to the seized materials.”

The judge should have said that Trump chose not to do so when the opportunity was readily available during the months of haggling with the government about whether he had classified documents and, if so, which ones. Instead, apparently because Trump is entitled to special treatment under the judge’s conception of the law, Judge Cannon simply gives Trump yet more opportunities to delay justice, opportunities no other citizen would have been granted.

The effect of Judge Cannon’s rejection is remarkable. He went to some lengths to describe the various investigative steps still open to DOJ while repeatedly foreclosing any reliance on the content of the seized classified documents. Worse, his decision means that the Special Master will have to decide whether the government properly classified the seized documents.

The decision gives no hint of how the Special Master is to make such determinations, but it seems certain this will require extensive inputs from the intelligence community, leading to further delays in the criminal investigation into which the judge has inserted the court. When the Special Master’s report becomes available, Trump will almost certainly challenge each adverse finding, leading to more opinions from the judge and appeals. Neither the Special Master nor the judge have any particular expertise in the decisions they will be making.

Among the on-going investigative actions permitted by the judge’s order are “as indicated in the September 5 Order, the temporary restraint does not prevent the Government from continuing “to review and use the materials seized for purposes of intelligence classification and national security assessments.” This logical inconsistency perfectly illustrates the travesty of the judge’s decision: the seized documents can somehow be used for further intelligence classification even as the Special Master, and eventually the judge himself, decide whether the documents were properly classified.

Another stunning misrepresentation by Judge Cannon resides in this remarkable statement:

“there has been no actual suggestion by the Government of any identifiable emergency or imminent disclosure of classified information arising from Plaintiff’s allegedly unlawful retention of the seized property. Instead, and unfortunately, the unwarranted disclosures that float in the background have been leaks to the media after the underlying seizure.”

The judge is more concerned about leaks from the government than about the national security implications of leaving the classified documents in Trump’s control.

In a final attempt to show his even-handedness, Judge Cannon notes:

Lastly, the Court agrees with the Government that “the public is best served by evenhanded adherence to established principles of civil and criminal procedure,” regardless of the personal identity of the parties involved …. It is also true, of course, that evenhanded procedure does not demand unquestioning trust in the determinations of the Department of Justice.

The problem here is that it is not the determination of the Department of Justice that are at issue. It is the determinations of the agencies that classified the documents in the first place. Rather than giving any presumption of validity to the government’s classifications, and without any attempt by Trump to show that the classifications were defective or overridden by an actual presidential decision, the judge has inserted the judiciary into a process it is incompetent to evaluate. The opinion reads like a sophisticated but unmistakable MAGA polemic on the evils of the federal government.

Hey, Judge – Fooled Ya!

Rather than spend more time analyzing the DOJ arguments against the judge’s bizarre and illogical decision, let’s leap ahead to the final step in which Trump, through his lawyers, springs the trap on Judge Cannon.

The judge’s order denying DOJ’s motion for a partial stay was issued September 15. The Special Master wasted no time thereafter. A letter from Trump’s lawyers states: “On September 16, 2022, Your Honor invited the parties to the above-captioned litigation to provide a docketed letter with suggestions regarding the agenda for tomorrow’s hearing.” Then this:

the Draft Plan [set out by the Special Master] requires that the Plaintiff disclose specific information regarding declassification to the Court and to the Government. We respectfully submit that the time and place for affidavits or declarations would be in connection with a Rule 41 motion that specifically alleges declassification as a component of its argument for return of property. Otherwise, the Special Master process will have forced the Plaintiff to fully and specifically disclose a defense to the merits of any subsequent indictment without such a requirement being evident in the District Court’s order.

The appropriate response to this astounding claim should be:

claims regarding declassification have been waived and no further action regarding them is required. The stay is lifted as to the classified documents and DOJ is free to use them in its criminal investigation as it chooses. Trump’s counsel have been more than a little too cute in their attempt to manipulate and delay these proceedings and the pending criminal investigation. Neither the Special Master nor the court will countenance further obfuscation. The Special Master is relieved of any duty to consider the classification of the classified documents. At a later date the court will consider whether Trump’s counsel should be sanctioned for their attempt to manipulate this proceeding for purposes of delay.

Recall that the presence of classified documents in the materials removed by Trump was known as early as February of 2022. https://wapo.st/3BPYXMs It is now late-September and Trump’s lawyers have exposed their delay strategy in the starkest terms. They baited Trump’s appointed judge who took the bait. Now he looks like just another sucker who was played by Trump. Trump’s loyalists in the White House have been lying and dissembling about Trump’s theft of classified documents for more than a year. Last year they claimed the boxes contained nothing but newspaper clippings. https://wapo.st/3Sesd4u

It’s past time for either the district court judge and/or the 11^th Circuit Court of Appeals to declare an end to the Trump charade. It should not take long to confirm that the purloined classified documents are authentic and that, by itself, should be sufficient for the grand jury to indict Trump on multiple criminal counts.

A Special Place in Hell

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On August 16, 2022, a United States Senator representing Florida published an “open letter” to “American Job Seeker.” The letter purports to address grievances about the planned hiring of 87,000 new employees for the Internal Revenue Service. In keeping with Scott’s general method of operation, the letter is replete with lies, distortions, and deflections. A U.S. Senator addressing the legislation he’s complaining about should know better. I believe he does and that his mendacity is deliberate. Donald Trump will be happy with him, though, so in Senator RIck Scott’s mind, he is fine with lying, distorting, and deflecting. Let’s have a closer look.

First, Scott decries the “labor participation rate” that he says the Biden administration has caused “to drop to historic lows.” That is a gross distortion at best and a bald-faced lie at worst.

The labor participation rate is the percentage of the population that is either working or actively looking for work. A casual look at Labor Department data would have shown Scott that the rate has remained within a percentage point or so of the level during Trump’s administration. https://bit.ly/3SZT71u Except, of course, for the big dip in 2020 caused by, you will recall, Trump’s grotesque mishandling of the pandemic. In July 2022 the rate was only .3 below the level when Biden was inaugurated. Oh, by the way, Florida, Scott’s state, ranks among the lowest states in LPR. Also, by the way, the national unemployment rate was 3.5% in July 2022, exactly where it was in February 2020, just before the pandemic struck. By most standards that unemployment rate is considered “full employment.”

Scott then says, “I write to you today to offer a few things for you to consider as you continue your job search.” Ah, job hunting advice from a professional politician from Florida, a man whom Wikipedia describes this way:

During his tenure as chief executive, the company [Columbia/HCA, then the largest private for-profit healthcare company] defrauded Medicare, Medicaid and other federal programs. The Department of Justice ultimately fined the company $1.7 billion in what was at the time the largest health care fraud settlement in U.S. history.

Scott has two messages: (1) expansion of the IRS workforce is a threat to Americans and when Republicans get control of Congress in the fall elections, they will remove the funding for these jobs; therefore, don’t waste your time applying; (2) the original job posting indicated the new IRS employees would be armed and one of their “major duties” was to be prepared to kill your neighbors and friends.

That deliberately misinformed and childish hysteria is plainly designed to frighten ordinary Americans. Scott goes on to refer to an “IRS super-police force” that will not only audit your taxes (that you are required by law to pay — remember, Scott is in the party of “law and order”) but directly suggests a mob of armed government employees will kill you if you don’t pay up.

This is the face of the modern Republican Party that uses the rhetoric of government running wild to frighten Americans into believing that a utopian and authoritarian solution is their only safeguard. The reality is quite different.

Lower taxes are, first, a lie. Republicans only lower taxes for the very wealthy. Ordinary Americans see little of the oft-promised tax cuts. Trump’s oft-toted big tax cut went almost entirely to the wealthy and increased the federal deficit by a huge amount. While promising to eviscerate the government, Republicans also promise stronger borders, a more powerful military, and more efficiency – all for less money! The Republican Party is the modern version of the snake oil salesman – buy my elixir and enjoy good health for life! Nothing to it. Something for nothing.

Let’s look more closely at Scott’s hysterical claims. He uses transparent techniques. All caps on “$80 BILLION.” He then compares the resulting IRS work force to the combined employment of four familiar federal agencies: Pentagon, FBI, Customs and Border Protection, and the State Department. If his original claim of doubling the size of the IRS was accurate, then this might be true even if totally pointless. But it is not. The IRS is not going to hire 87,000 new employees in one year. So, Scott’s workforce comparisons are just more distortions/lies.

The more important question is: what will the new employees be doing that is good for America? Senator Scott doesn’t want you to know about that. Here’s why.

The IRS’s budget has been cut by nearly 20 percent since 2010, impacting the agency’s ability to staff up and modernize half-century-old technology. In 2010, the IRS had about 94,000 employees. That number dipped to about 78,000 employees in 2021. Some of the agency’s computers still run on COBOL, a programming language that dates back to the 1960s. Since 2010, the agency’s enforcement staff has declined by 30 percent, according to IRS officials, and audit rates for the wealthiest taxpayers have seen the biggest declines because of years of underfunding. [https://bit.ly/3K8AzIp]

So, if you’re fine with wealthy tax cheats getting away with under-paying taxes, you’ll appreciate Senator Scott’s gross deception. Otherwise, well, you’ll recognize that you can’t run the government on thoughts and prayers Republicans like to send when your school children are slaughtered with AR-15’s they refuse to restrain.

Speaking of that, Senator Scott also wants you believe that the IRS auditors are going to shoot you. Another lie. Fewer than 3% of IRS employees are Special Agents who carry weapons. Why do they? Because they are law enforcement personnel in the IRS Criminal Investigation unit. They investigate criminal tax violations and other financial crimes such as money laundering, bank secrecy, national security, and national defense matters.

While we’re still on violence, Senator Scott should know that anti-government, anti-worker statements have inspired violent attacks on federal employees in the past. There are now reports of one Republican candidate advocating shooting federal employees, including IRS employees, “on sight.” When you add these incitements to violence against federal employees carrying out Congressionally mandated duties to Republican indifference to the slaughter of school children with automatic weapons they refuse to regulate, you have the perfect storm of a political party advocating violence against its opponents and the government.

Senator Scott’s letter is a dangerous collection of gross distortions and outright lies. This man cannot be trusted. Florida should send him packing (no pun) as soon as possible.

Answers to Senator Mike Lee’s 8 Stupid Questions

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On August 10, U.S. Senator, and Trump sycophant, Mike Lee published an opinion piece on, where else, Fox News, entitled, Trump raid leaves me with 8 important questions as a Senate Judiciary Committee member. I am here to help. For the record, note that Lee twice clerked for Justice Samuel Alito, who famously wrote the majority opinion imposing his religious views on the country while overturning Roe v Wade.

After reminding us he was a federal prosecutor, Lee poses his eight questions.

Did Attorney General Merrick Garland personally sign off on this action?

Answer: A modest effort by Lee would have told him the answer. It’s clear now that Garland did sign off, reflecting awareness on the part of DOJ that its investigation at Mar-a-Lago was singularly important.

Why break into the safe at Trump’s Mar-a-Lago home rather than seize it, take it into custody, and seek a warrant to open it?

Answer: It’s unclear why Lee cares about this, but most likely it’s just part of the “Trump as victim” narrative that Republican sycophants constantly promote to show their loyalty to Trump, as opposed, you know, to loyalty to the country they swore to protect and defend. The warrant governing the entire search almost certainly permitted the FBI to “break into the safe” if that is in fact what they did. You would have thought that Trump, faced with the “raid,” would have just opened the safe. Maybe he did. Lee wasn’t there. Or Trump refused to open it, so he could add to his victimization ploy.

Why execute a search warrant rather than seek the items through an informal process such as a subpoena?

Answer: Lee is either deliberately ignorant or just plain stupid. Trump would never have complied with a subpoena and Lee knows that. Pursuing a subpoena would just have delayed everything, alerted Trump to the target of the investigation, and likely resulted in destruction of or further secreting of the evidence. Trump refused to answer Special Counsel Mueller’s questions, has claimed that everything he did is forever protected by some form of privilege and in general declared himself immune from, and superior to, the law. If Lee has not learned any of this, his “opinion” is worth exactly nothing. He just going along to get along with the Republican narrative that the man who led the attempt to overthrow the government on January 6 did nothing wrong.

If this is genuinely about presidential records, why would the former President — who was in charge of declassifying documents — be subject to prosecution for retaining custody of the same documents? It’s important to note that classification authority belongs to the president of the United States — NOT to bureaucrats at the National Archives.

Answer: Senator Lee knows a lot less about the classification of federal government documents than he would have you believe. For a short course introduction, see https://twitter.com/MarkHertling/status/1557911337468133377 If you want to look further into General Hertling’s military chops, look at this: https://en.wikipedia.org/wiki/Mark_Hertling

If this is the product of the growing political weaponization of federal law enforcement agencies, shouldn’t all Americans be outraged by the Democrats’ plan to hire an additional 87,000 federal agents?

Answer: Clever but no cigar. By characterizing this as a hypothetical, Lee leaves himself room to say, “I never said there was growing weaponization, etc.” But, of course, a claim of weaponization is exactly the message he intended to deliver.

Why he thinks the increased staffing for the Internal Revenue Service (that’s the 87,000 new employees) is relevant here will remain a mystery to all rational people. But if anyone wants to know, read this: https://wapo.st/3SOxMHZ And if weaponization is the allegation, perhaps Sen. Lee should do a little reading about the Trump administration, especially the last year or so. Might start with Betrayal, The Final Act of the Trump Show, by Jonathan Karl. Or these:

The Fourth Reich — It’s Them or Us https://bit.ly/3QIoCLy

Donald Trump — A Gangster in the White House https://bit.ly/3Po4kpB

Trump’s Documents – Trump’s Crimes https://bit.ly/3zMWik4

How is this aggressive action defensible in light of the FBI’s and DOJ’s treatment of Hillary Clinton, who was never subjected to such an invasive intrusion of privacy, even though she mishandled classified material and destroyed evidence?

Answer: Sen. Lee should see a doctor about his memory loss. I will not waste time with this old, very old, line of Republican deflection, except to note that Secretary Clinton did not attempt to stage a coup to prevent the lawful and peaceful transfer of power. Oh, and DOJ’s (FBI’s Comey, remember him?) treatment of Hillary Clinton was likely to ultimate cause of her loss to Trump in the 2016 election.

Why should we assume that the federal bureaucracy isn’t targeting Republicans when the FBI and DOJhave taken no action regarding flagrant violations of the law by pro-abortion extremists threatening Supreme Court justices at their homes?

Answer: Prosecutorial decisions about political protests are more than a little different than investigation of known crimes involving national security. And, just for the record, AG Barr’s records of using DOJ for Trump’s personal and political benefits is undeniable. We can match the good senator deflection for deflection, but it’s pointless. Trump removed documents from the White House that he knew had the highest security classification. Why? Republicans like Lee don’t care about the national security of their country. They are only interested in being seen by Trump as 100% loyal to him, just in case, you know, he becomes president again.

8. Did FBI Director Christopher Wray intentionally wait to carry out the raid until after his oversight hearing with the Senate Judiciary Committee last week? I asked him whether he was concerned with warrantless “backdoor searches” under Section 702 of the Foreign Intelligence Surveillance Act. He seemed unperturbed.

Answer: What if he did? Lee is a US Senator and can ask the FBI questions until he is blue (or is it red?) in the face.

Lee’s rant ends with his false hope that the FBI has been appropriately careful in handling the decision to raid Trump’s “home:”

If there’s something we don’t know, something that will clarify the reasons for the raid, then the FBI needs to articulate that justification soon as possible. If there isn’t, we’ve got problems at the FBI.

In this statement, Lee reveals his ignorance of how DOJ/FBI works OR, more likely, is just playing to the victimization/fears of the Trump base that somehow the federal government is out to get them. Senator Lee and most other people are not entitled to know every detail of criminal investigations, regardless of the target. Lee seems to forget, as he has forgotten his oath of office, that Trump is subject to the law the same as everyone else. The investigation of Trump is based on well-founded concerns of criminal behavior in a vast range precisely because, not instead of, his having been president. The reason is simple enough: if the president can commit crimes and not be called to account, the Constitution is meaningless and, as Benjamin Franklin feared, the republic is lost.

Trump Crimes Report — marked up

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In a prior post, I promised to provide a marked-up copy of the Brookings Institution report on the crimes of Donald Trump and some of his enablers. https://bit.ly/3A6oIaT

Here it is. https://shiningseausa.files.wordpress.com/2022/06/trump-on-trial-marked.pdf

You may want to consult it as you watch the remainder of the televised hearings of the January 6 Select Committee. The next hearing is tomorrow, June 21, currently scheduled to be televised live at 1:00 EDT. Check the time for your local broadcast, as they sometimes change.

The Root of All Evil

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A Biblical quotation worked its way into the popular vernacular a long time ago: the love of money is the root of all evil. The quote is often abbreviated to “money is the root of all evil.” I have no idea whether the attribution to Apostle Paul is correct, but I also don’t care. I don’t believe either version of it is true.

The love of money, like the love of many other things, both physical and otherwise, can certainly lead to problematic outcomes. But the opposite of love can equally lead to problematic outcomes. There are just too many problematic outcomes to assign all the blame on love of money or just on money. When I think about this, I am reminded of the wonderful Robert Frost poem, Fire and Ice:

Some say the world will end in fire,

Some say in ice.

From what I’ve tasted of desire

I hold with those who favor fire.

But if it had to perish twice,

I think I know enough of hate

To say that for destruction ice

Is also great

And would suffice.

In my view, ignorance is the real root of all evil. Donald Trump once said, “I love the poorly educated!” He knew something that had apparently escaped the notice of even experienced political analysts. It’s not that the “poorly educated” are unintelligent. Many of them are quite intelligent and can perform many tasks effectively. They can be successful in many lines of commerce and in life generally.

On the other hand, the “poorly educated” may be susceptible to believing misinformation/false information because they have not been exposed to the discipline of education and have not undertaken to study on their own. But they are not alone in that, so being poorly educated is neither explanation nor excuse, despite Trump’s claimed admiration for them. During the height of the pandemic, we saw nurses and doctors embrace conspiracy theories, promote quack remedies for COVID and resist vaccination. And many members of Congress who support insane conspiracy theories and engage in traitorous and illegal activities are highly educated.

The problem is more complicated than the simple explanation that the “poorly educated” mistakenly thought Trump as president would be good for them. In trying to understand this, I have read numerous books, articles, theories, and studies. Most recently I discovered Strangers in Their Own Land, by Arlie Russell Hochschild, professor emeritum of sociology at the University of California, Berkeley, and the author of many notable books. The book was a 2016 Finalist for the National Book Award. This work is based on her personal research conducted in post-Katrina, post-Deepwater Horizon coastal Louisiana. The date of publication, 2016, was just before Trump was elected president and all that ensued. The book nevertheless seems wholly predictive of everything that followed.

Hochschild defined her mission at the outset as an effort to explore feelings, the “emotion in politics.” Strangers at 15. Some of those feelings were disturbing – she notes that “reminders of the racial divide were everywhere.” Strangers at 20. She did not draw much on that fact of coastal Louisiana life but indirectly seemed to acknowledge its abiding and broad influence on political life there.

Strangers focuses on what Hochschild calls the Great Paradox, stated roughly as the massive disconnect between the economic and life interests of the local people and their devotion to the Tea Party which was in full flower in the period covered. The locals were adamantly opposed to regulation, especially federal regulation, that might help restore the opportunity to continue the livelihoods they had pursued for generations in fishing/hunting/farming the abundant natural resources of coastal Louisiana.

One of the Tea Party’s darlings was Bobby Jindal. As Hochschild notes at the end of the book, Louisiana was left a “shambles” after eight years of Tea Party-style leadership by Governor Jindal. Yet his support among locals never waned. They bought into the capitalism mythology completely. Such devotion also led to support for Republican congressman David Vitter who opposed all federal environmental intervention, voted to terminate the Environmental Protection Agency and more. Strangers at 48.

The author said she was struck by what political candidates avoided in their pitches to voters: “that the state ranks 49^th out of 50 on an index of human development, that Louisiana is the second poorest state, that 44 percent of its budget comes from the federal government – the Great Paradox.” Strangers at 59. People with little to begin with worried more about what others were getting (“non-working, non-deserving people”) than about destruction of the environment or years lost to bad health conditions. Somehow this was seen as a loss of “honor” and that was more important than more tangible issues. Strangers at 60-61.

They knew that Big Oil and Big Chemical had undeniably wrecked the local environment, but they adhered to the mythology that the companies also brought jobs and other economic benefits that could not be secured under any form of regulation. They concluded that the honorable thing was to muddle through, accepting their fate while continuing to assert their” principles.”

Hochschild notes three paths by which Tea Party believers arrived at their profound dislike for the federal government:

their religious faith (the government curtailed the church, they felt),

hatred of taxes (which they saw as too high and too progressive), and

the government’s impact on their loss of honor …. [Strangers at 35]

They bought into the belief that taxes went to lazy welfare cheats and “government workers in cushy jobs.” Id. They thought climate change was bogus science. They resented what they perceived to be bias against the “little guy,” meaning mainly the little white guy, and interference with the role of God in overseeing humanity. Strangers at 52. Those are easy myths for resentful people to embrace without having to make the effort to understand complex systems and ideas. Indeed, for many, the outcome was in the hands of their God and humans thus had little responsibility for outcomes.

In portents of things to come, Hochschild notes that at the Republican Women of Southwest Louisiana meeting,

I heard a great deal about freedom in the sense of freedom to – to talk on your cellphone as you drove a car, to pick up a drive-in daiquiri with straw on the side, to walk about with a loaded gun. But there was almost no talk about freedom from such things as gun violence, car accidents, or toxic pollution. [Strangers at 71]

The perplexing reality is that people living with more pollution are more likely to believe in less regulation and more likely to be Republicans. Strangers at 79. This mental orientation set them up for manipulation and exploitation.

The initial tip to the problem of the book’s analysis comes at the beginning. Hochschild observes that the reason for population shifts in the United States had changed: people moved less to find better jobs, housing or (she didn’t mention this) education but rather to align more closely with people of similar political views. The sharpening of political division is, she says, attributable to the ‘right moving right.’ Strangers at 6-7. She recounts the dire economic conditions afflicting the southern states, Louisiana being among the worst of the worst:

Given such an array of challenges, one might expect people to welcome federal help. In truth, a very large proportion of the yearly budgets of red states – in the case of Louisiana, 44 percent – do come from federal funds. $2,400 is given by the federal government per Louisianan per year.

But Mike S_____ doesn’t welcome that federal money and doubts the science of climate change. “I’ll worry about global warming in fifty years,” he says. Mike loves his state, and he loves the outdoor life. But instead of looking to government, like others in the Tea Party, he turns to the free market. [Strangers at 9]

He turns to the same “free market” exploited by Big Oil and others to wreak havoc on the state that Mike purported to love so much. Thus, again, the Great Paradox.

The other major theme in the book is the Deep Story, the myths by which social groups, or tribes, are developed and sustained. Strangers at 135. Here perhaps is the core principle at work. In coastal Louisiana the Tea Party promoted, and locals accepted, the idea that undeserving people were cutting into the line ahead of hard-working “true Americans.” While their perceptions of race are complex, older whites interviewed by Hochschild saw Blacks especially as a problematic class afflicted by special issues not shared by most white people.

Economic class distinctions tracked race and distinguished between “makers” and “takers,” with the latter being the “line-cutters” supported by the federal government, those people unfairly getting ahead of everyone else. This grievance was at the root of many white Louisianans’ attitudes unrelated to the reality of local social and economic standing. Strangers at Ch. 9, and at 157-159.

Despite noting the data showing that “the higher the exposure to environmental pollution the less worried the individual was about it” [Strangers at 253], Hochschild concludes that the continuation of the Great Paradox is not the result of ignorance. [Id.] But that view is remarkable because it’s not supported by most of the data cited in the book. One of dozens of examples is the belief that 40 percent of all U.S. workers are employed by the federal government. The actual figure at the time was 1.9 percent. Strangers at 161.

Such ignorance of economic reality was at the root of many local people’s vigorous resistance to all forms of regulation. Such interventions could have helped to restore the balance of nature and, along with it, the jobs and environment they claimed to cherish. Yet, by and large, they wanted none of it. Hochschild was aware of this because data in Appendix C to the book was often interspersed in the text to illustrate how the real facts refuted the central myths on which the resistance depended. Peoples’ explanations of their views were rife with classical political myths and massively wrong factual beliefs.

Locals that Hochschild interviewed appeared to believe that a woman’s role was to be completely subordinate to her husband. Strangers at 174. This attitude is consistent with the analysis of “what makes a Republican” in George Lakoff’s 1996 Moral Politics that, controversially, applies principles of cognitive science to politics. As summarized in Wikipedia:

Lakoff argues that the differences in opinions between liberals and conservatives follow from the fact that they subscribe with different strength to two different central metaphors about the relationship of the state to its citizens. Both, he claims, see governance through metaphors of the family.

Conspiratorial thinking was also rampant among Hochschild’s subjects. Few people believed science had made the case for global warming. Strangers at e.g., 183. They did not understand what the lives of the seriously poor were like, rejected much historical truth, adopted phantasmagorical solutions dependent upon the “free market” and adopted what has come to be known more recently as “replacement theory.” Strangers at Ch. 14.

In the end, it seemed to me that the author was profoundly fooled by the mannered façade she experienced in her research with the locals whose “good-hearted acceptance” of her, their “great personal warmth and famous Southern hospitality,” misled her to conclude that

in human terms, the [empathy] wall can easily come down. And issue by issue, there is possibility for practical cooperation. [Strangers at 233]

There is nothing in the buildup to the end of the book or in the data set out throughout it that would support such a conclusion. And, of course, the history under Trump’s presidency is the most profound refutation of the “we can all just get along” thesis. The author’s starry-eyed belief in future harmony and progress was, I believe, a grievous error by a researcher whose approach to her study was primarily based on just talking with locals, eating meals with them, and looking at the surrounding conditions that determine their lives and livelihoods.

The book confirms my suspicions in its treatment of the rise of Trump as a political power.

Three elements had come together. Since 1980, virtually all those I talked with felt on shaky economic ground, a fact that made them brace at the very idea of “redistribution.” The also felt culturally marginalized: their views about abortion, gay marriage, gender roles, race, guns, and the Confederate flag all were held up to ridicule in the national media as backward. And they felt part of a demographic decline; “there are fewer and fewer white Christians like us….” [Strangers at 221]

Economically, culturally, demographically, politically, you are suddenly a stranger in your own land. The whole context of Louisiana – its companies, its government, its church and media – reinforces that deep story. [Strangersat 222]

Trump, consciously or otherwise, fed this sense of disaffection and loss.

His supporters have been in mourning for a lost way of life Many have become discouraged, others depressed. They yearn to feel pride but instead have felt shame. Their land no longer feels their own. Joined together with others like themselves, they now feel hopeful, joyous, elated … in a state of rapture… no longer strangers in their own land. [Strangers at 225]

Rapture indeed. This degree of magical thinking is beyond imagining: a Pew Research Center 2010 study reported that “41 percent of all Americans believe the Second Coming “probably” or “definitely” will happen by the year 2050.” Strangers at 125. Hochschild labels them “victims without a language of victimhood.” Strangers at 131, a missing element that Donald Trump readily supplied.

My overall conclusion about this book is that the people it discusses suffer from a central fatal flaw: they mistakenly believed that the land belonged to them in the sense that the whole of it was their natural right. Anything that challenged that idea was alien, undermining their sense of “our land.” This, I think, is about as un-American a concept as you will find. It ignores history, economic reality, and the nature of democracy. The root concept that “this land is ours then, now and always,” meaning us God-fearing white people who have an entitlement that others are unjustly trying to steal, fundamentally misunderstands the nature of the country, its origins, and its development.

This issue may be connected to education, but I suspect it’s much deeper than that. The possessory and superiority components of these cultural beliefs leave these people vulnerable to the “it’s ok to hate” message from a demagogue like Donald Trump who lacks any core value system of principles except greed. These people have less to fear from interlopers than from their own ignorance.

The problem, however, is that someone so ignorant is usually unaware of his ignorance and simply feels put upon by the forces of change. He just wants what he thought he had before, notwithstanding that the oil-based economy was a complete fraud on coastal Louisiana society, wrecking the environment while failing to deliver the economic benefits that locals were sure existed. It’s also often true that the ignorant are unwilling to learn; they lack empathy and see others’ gains mainly as their losses.

I don’t want to be told I’m a bad person if I don’t feel sorry for that [sick African child on TV with Christiane Amanpour]” Strangers at 128.

But even those who fancy ourselves as “not ignorant” are capable of delusional thinking. I have confessed multiple times to having fundamentally misunderstood the degree of disfunction in the country. I thought the election of Barack Obama was a sign that, overall, the country had changed. That was wrong.

The essential proof is that despite his record of lies, incompetence and corruption, Trump received 74 million votes in 2020. Joe Biden received many more, of course, but the thinnest of margins remains in both houses of Congress. People with short term concerns about things like inflation, and no or limited understanding of its causes, may drive the country back into an abyss from which democracy may not re-emerge. It can happen here. Only the voters can prevent it.

I heard recently from a reliable source that many young people, in their 20’s and 30’s, may not feel they are much affected by what is happening in politics. That absence of perceived impact often makes them indifferent to the outcome of critical issues. If that is true, we are in even more trouble than I imagined.

Republicans are highly motivated by their grievances and can be expected to turn out in large numbers in the 2022 mid-terms. If Democrats stay home, it’s game over. You have been warned.

The Faces

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Yesterday the reckoning began. In marches, rallies, and gatherings across the country, tens of thousands of Americans came together to declare war. The target is the death-mongers who value guns over human life, guns over children, guns over the elderly, guns over everything. The unique problem of Americans and guns has reached the breaking point. Mass shootings are almost as routine as car accidents. Death by gun in schools, places of worship, grocery stores, shopping malls, the streets. Only in America.

Yesterday you could see in the faces and the signs. Sadness, fear, anger.

The rally in Washington, DC attracted an estimated 40,000 people. An extraordinary turnout considering the foul weather. Sadness – why don’t more Americans care about us? Fear – am I or one of my loved ones the next to die by gunfire? Anger – the killing must stop; we cannot continue to live like this. Why do so many Americans care more about their guns than they do about their children and their parents and grandparents?

The crowd was very large, spread over the north side of the Washington Monument grounds.

One of the speakers lost his mother to gunfire a short time ago. She had lived 86 years, only to be gunned down while shopping for groceries. The average age of the people slaughtered in Buffalo was 62. Shopping for groceries. Slaughtered by an 18-year-old racist with a history of violence and mental health issues, none of which prevented him from legally buying assault weapons and armor plating. He live-streamed his deadly assault which he had been planning for months. He shot four people outside the store, a security guard inside, then eight more inside (six of whom died). When police arrived, he surrendered without resistance.

The faces of the people listening to speeches like that were grim but determined. They have had enough of Republican thoughts-and-prayers, the rote response to the uniquely American tragedy facilitated by legal systems that allow people with the maturity level of children buy assault weapons intended to kill as many people as quickly as possible.

Aside from the power of the speeches there were two moments of “drama” that we observed. The first involved a jerk who arrived in the middle of the presentations with a large poster on poles that said “Guns-Bacon” on one side (no idea what it meant) and Gun Control with a slash mark on the other.

When he set up in the middle of the crowd listening to the speeches, his sign blocked the view of the jumbo screens. Only a few seconds passed before two women rushed up behind him to block his signs and within a minute a multitude joined them.

The jerk was surrounded and engulfed in anti-gun signs. His face was covered the entire time. After a while security arrived and escorted him off the grounds trailed by comments from the crowd that are a bit too raw for a family-oriented blog.

The other excitement occurred during a moment of silence called for by one of the late speakers. Someone in the crowd yelled either “I have a gun” or “I am God,” according to reports. This sparked a very short-lived panic that subsided within seconds. Pay no attention to any news reports otherwise. We were at the back of the crowd when this happened and witnessed the entire thing. Nothing there but stupidity. We believe the fool was arrested, as he should have been.

As indicated, many of the speeches were hard to hear, coming from people who had directly experienced the horror of losing family and friends to gun violence. Some were in the schools when they were attacked (David Hogg, for example, at Stoneman Douglas High School). They remind us that children in grammar school are being subjected to active shooter drills.

Can you imagine the affect that is having on those kids? When I attended grammar school in the 1950s, we did nuclear attack drills, practicing hiding under desks as if that could protect us from the annihilation of a nuclear strike. It seemed unreal and had little impact. But active shooter drills when mass shootings occur almost every day and the kids are aware. The children subjected to this may be scarred for life. It seems like another form of grooming, making them afraid all the time that their lives or those of their friends could be snuffed out by a total stranger for no reason at all.

While preparing this post, I read in the Washington Post https://wapo.st/3zyYihF that,

A bipartisan group of Senate negotiators announced Sunday that it had reached a tentative agreement on legislation that would pair modest new gun restrictions with significant new mental health and school security investments — a deal that could put Congress on a path to enacting the most significant national response in decades to acts of mass gun violence.

A group of 20 senators — 10 Democrats and 10 Republicans — signed a statement announcing the framework deal. That indicated that the agreement could have enough GOP support to defeat a filibuster, the Senate supermajority rule that has impeded prior gun legislation.

I call B.S. on this. The bolded portions of the report explain why:

Under the tentative deal, a federal grant program would encourage states to establish “red flag” laws that allow authorities to keep guns away from people found by a judge to represent a potential threat to themselves or others, while federal criminal background checks for gun buyers under 21 would include a mandatory search of juvenile justice records for the first time.

It does not include a provision … that would raise the minimum age for the purchase of at least some rifles from 18 to 21. Handguns are already subject to a federal 21-and-over age limit.

Other provisions could funnel billions of new federal dollars into mental health care and school security programs, funding new campus infrastructure and armed officers. Several senators last week said they expected one cornerstone of the deal would be … to establish a nationwide network of “community behavioral health clinics.”

Those are nice things to have but they fall grossly short of what is required to address gun violence in a meaningful way. We need to be careful we don’t embrace the first simplistic glossy object thrown at us to “show progress” when the real effect is to further deflect substantive progress because Republicans do not intend to give real ground on these issues and thereby disappoint their arms industry funders.

The real solution, promoted by several speakers at the March for Our Lives, is “VOTE THEM OUT.” Unless and until that happens, Republicans will continue obstructing real progress to stop or even seriously mitigate the wave of gun violence that makes the United States stand out among all nations as the most dangerous in so many ways. VOTE THEM OUT is the only real answer and the opportunity to start is coming soon in the mid-term elections.

If you agree that the time is past for meaningful action on gun violence prepare to VOTE THEM OUT. In addition to voting, work the polls, offer transportation and money and other help to elect Democrats up and down the ticket.

Don’t forget that a majority of Republicans around the country still believe Trump was unlawfully defeated and are working very hard to take over the electoral machinery in the states. The sole purpose is to prepare Republicans to invalidate elections they lose and simply install Republican candidates as winners. The only way to stop this is with overwhelming Democratic majorities. Make it so. Make it so.

Thoughts & Prayers

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Bear with me.

One of the early lessons learned in law school related to the issue of causation and intent. We were introduced to this question through Scott v Shepard, an English decision from 1773. Yes, 1773. The decision known as the Famous Squib [firecracker]. Flying Squib, or Lighted Squib case was the subject of extended discussion and debate. Among its many lessons is the principle that intentionally doing an act with known or predictable consequences means that you intended those consequences, caused those consequences and are legally accountable for them.

Here, for your edification, is a published summary of the case:

Facts

The defendant threw a squib, which is a small, lit firework, into a busy marketplace with lots of people and stalls. In order to protect themselves and avoid damage, the squib was thrown on by two other people. When it landed near to the complainant, it exploded and caused injury to his face. He later lost the use of one of his eyes. The original thrower, the defendant, was charged with assault and trespass.

Issues

The defendant was found liable for trespass and he appealed this decision. The defendant argued that the injury to the complainant was not caused by his actions; it was not a direct act, as others threw the squib on. The issue in the appeal was whether the defendant throwing the squib caused the injury or whether other people broke this chain of causation and the injury was caused by novus actus interveniens.

Decision/Outcome

The court dismissed the appeal; the injury to the complainant was the direct and unlawful act of the defendant who originally threw and intended to throw the squib. The other people were not ‘free agents’ in this situation and threw on the squib for their own safety and this was justifiable. The throwing on was classed as a continuation of the defendant’s action, which was intended. Whatever followed this was part of the defendant’s original act. [https://bit.ly/3xfYZJL]

The class discussion of this case was a shock, an early admission to the inner sanctum of legal reasoning. This simple case introduced us to the complexity of the seemingly obvious, the intricacies of causation, intent and other themes that run through the law.

One principle we took away was this: if you take an action knowing the likely consequences, you will be presumed to have intended those consequences. It’s the same principle that underlies the limit on freedom of speech with which most rational people are familiar: you can’t shout “fire” in a darkened theater and disclaim responsibility for injuries resulting from the panic that ensues. It’s ultimately why you can’t drink yourself into a stupor, drive a car, have an accident, and deny responsibility for the results. The principle is fundamental.

So what? This. Republicans in Congress have consistently refused to consider any gun regulations, no matter how limited, claiming Second Amendment privileges. The result is the massacre of school children in Uvalde, TX and all the others that preceded it and that will inevitably follow it. The refusal to change the law, knowing what will result, means that the legislators who refuse to act must intend the resulting carnage. It means they are content with the hundreds and thousands of deaths and injuries that could be prevented or at least reduced. There are no excuses.

There was a hearing in the House on gun regulation a few days ago. The following is the entire testimony of Dr. Roy Guerrero. It is not easy to read but it is important. If you know someone who believes gun regulation is unnecessary, consider sending this to them:

“My name is Dr. Roy Guerrero. I am a board-certified pediatrician, and I was present at Uvalde Memorial Hospital the day of the massacre on May 24th, 2022, at Robb Elementary School. I was called here today as a witness. But I showed up because I am a doctor.

Because how many years ago I swore an oath — An oath to do no harm.

After witnessing first-hand the carnage in my hometown of Uvalde, to stay silent would have betrayed that oath. Inaction is harm. Passivity is harm. Delay is harm. So here I am.

Not to plead, not to beg or to convince you of anything. But to do my job. And hope that by doing so it inspires the members of this House to do theirs.

I have lived in Uvalde my whole life. In fact, I attended Robb Elementary School myself as a kid. As often is the case with us grownups, we remember a lot of the good and not so much of the bad. So, I don’t recall homework or spelling bees, I remember how much I loved going to school and what a joyful time it was. Back then we were able to run between classrooms with ease to visit our friends. And I remember the way the cafeteria smelled lunchtime on Hamburger Thursdays.

It was right around lunchtime on a Tuesday that a gunman entered the school through the main door without restriction, massacred 19 students and two teachers and changed the way every student at Robb and their families will remember that school, forever.

I doubt they’ll remember the smell of the cafeteria or the laughter ringing in the hallways. Instead, they’ll be haunted by the memory of screams and bloodshed, panic, and chaos. Police shouting, parents wailing. I know I will never forget what I saw that day.

For me, that day started like any typical Tuesday at our Pediatric clinic – moms calling for coughs, boogers, sports physicals – right before the summer rush. School was out in two days then summer camps would guarantee some grazes and ankle sprains. Injuries that could be patched up and fixed with a Mickey Mouse sticker as a reward.

Then at 12:30 business as usual stopped and with it my heart. A colleague from a San Antonio trauma center texted me a message: ‘Why are the pediatric surgeons and anesthesiologists on call for a mass shooting in Uvalde?’

I raced to the hospital to find parents outside yelling children’s names in desperation and sobbing as they begged for any news related to their child. Those mother’s cries I will never get out of my head.

As I entered the chaos of the ER, the first casualty I came across was Miah Cerrillo. She was sitting in the hallway. Her face was still, still clearly in shock, but her whole body was shaking from the adrenaline coursing through it. The white Lilo and Stitch shirt she wore was covered in blood and her shoulder was bleeding from a shrapnel injury.

Sweet Miah. I’ve known her my whole life. As a baby she survived major liver surgeries against all odds. And once again she’s here. As a survivor.

Inspiring us with her story today and her bravery.

When I saw Miah sitting there, I remembered having seen her parents outside. So, after quickly examining two other patients of mine in the hallway with minor injuries, I raced outside to let them know Miah was alive.

I wasn’t ready for their next urgent and desperate question: ‘Where’s Elena?’

Elena, is Miah’s 8-year-old sister who was also at Robb at the time of the shooting. I had heard from some nurses that there were “two dead children” who had been moved to the surgical area of the hospital. As I made my way there, I prayed that I wouldn’t find her.

I didn’t find Elena, but what I did find was something no prayer will ever relieve.

Two children, whose bodies had been so pulverized by the bullets fired at them, decapitated, whose flesh had been so ripped apart, that the only clue as to their identities was the blood-spattered cartoon clothes still clinging to them. Clinging for life and finding none.

I could only hope these two bodies were a tragic exception to the list of survivors.

But as I waited there with my fellow Uvalde doctors, nurses, first responders and hospital staff for other casualties we hoped to save, they never arrived. All that remained was the bodies of 17 more children and the two teachers who cared for them, who dedicated their careers to nurturing and respecting the awesome potential of every single one. Just as we doctors do.

I’ll tell you why I became a pediatrician. Because I knew that children were the best patients. They accept the situation as it’s explained to them. You don’t have to coax them into changing their lifestyles in order to get better or plead them to modify their behavior as you do with adults.

No matter how hard you try to help an adult, their path to healing is always determined by how willing they are to take action. Adults are stubborn. We’re resistant to change even when the change will make things better for ourselves. But especially when we think we’re immune to the fallout.

Why else would there have been such little progress made in Congress to stop gun violence? Innocent children all over the country today are dead because laws and policy allows people to buy weapons before they’re legally even old enough to buy a pack of beer. They are dead because restrictions have been allowed to lapse. They’re dead because there are no rules about where guns are kept. Because no one is paying attention to who is buying them.

The thing I can’t figure out is whether our politicians are failing us out of stubbornness, passivity, or both.

I said before that as grown-ups we have a convenient habit of remembering the good and forgetting the bad. Never more so than when it comes to our guns. Once the blood is rinsed away from the bodies of our loved ones and scrubbed off the floors or the schools and supermarkets and churches, the carnage from each scene is erased from our collective conscience and we return once again to nostalgia.

To the rose-tinted view of our second amendment as a perfect instrument of American life, no matter how many lives are lost.

I chose to be a pediatrician. I chose to take care of children. Keeping them safe from preventable diseases I can do. Keeping them safe from bacteria and brittle bones I can do. But making sure our children are safe from guns, that’s the job of our politicians and leaders.

In this case, you are the doctors, and our country is the patient. We are lying on the operating table, riddled with bullets like the children of Robb Elementary and so many other schools. We are bleeding out and you are not there.

My oath as a doctor means that I signed up to save lives. I do my job. And I guess it turns out that I am here to plead. To beg. To please, please do yours.”

– Dr. Roy Guerrero, Pediatrician, Uvalde, TX

Nothing left to say.

Trump Crimes Report

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Apologies for the late arrival of this but it couldn’t be helped. I just wanted to call to everyone’s attention a new report released a few days ago from the Brookings Institution entitled, Trump on Trial: A Guide to the January 6 Hearings and the Question of Criminality. https://brook.gs/3Q91S7U

The Guide is like a study aid for the hearings that begin tonight at 8 pm on multiple channels (but, of course, not on Fox News) to present the findings thus far of the House Select Committee to Investigate the January 6th Attack on the United States Capitol. I was working as fast as possible to highlight key passages, of which there are many. But time has run out, so I’m sharing the link to the original report. In a later post I will provide a method to receive the marked-up report for those interested.

Cowards

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I just saw a statement posted on Facebook — a Republican aspirant for Congress who said that “instead of sending $40B to Ukraine maybe we should invest it in protecting American children at school.”

Nice sentiment. Total deflection. No proposals. Nothing.

I’ve seen many “suggestions.” Harden the schools with electronic surveillance and metal detectors. Post armed police at the doors. Have only one door. Build a moat around schools. Surround schools with barbed wire. Use bullet proof glass. Arm the teachers. Spend more on mental health but no red flag laws.

All share a common theme. No matter how many children and teachers are slaughtered in schools and no matter how many religious believers are murdered while studying and praying, we must not ever do anything, not the slightest thing, that might infringe on the “God-given” right to buy automatic weapons and unlimited ammunition because … because the Second Amendment to the US Constitution says … nothing of the kind.

But I’m not writing now to debate the meaning of the Second Amendment. Rather I want to say that the people who are so obsessed with their “God-given” right to buy automatic weapons are cowards. Chicken-livered cowards.

Why? Because they are afraid. They are afraid of their own government. Even the Republicans in the overwhelmingly Red States are afraid of their government. Probably more the federal than the state but the government. They live in fear that someday the government is going to come for them. They maintain this profound fear even though there is no evidence that the federal government has entertained such an idea. Ever. Nor can they rationally explain why the federal government would “come for them.” Or what “it” would do with them when it came for them.

These cowards know little history but they’re certain that the apocalypse is coming during their lifetimes. They are equally certain that when the First Marine Battalion, or such other military that is selected for the task, comes for them, they will be able to use their AR-15s and other weapons to defeat them. The same people who quake in fear at the thought of the federal government coming for them think they’re going to have the courage to stand up to the withering firepower of a division of Marines or U.S. Army.

These people cannot explain what motivation the government would have to undertake the slaughter and/or imprisonment of the civilian population. They apparently haven’t considered what foreign adversaries might do while the U.S. military was busy rounding up Americans in this massive country. Do they really think our adversaries will just stand back and watch, tsk tsking about the sad state of affairs in the United States? Do they think those countries will not be concerned about the collapse of the largest economy in the world? Do they think at all? Or do they just cringe at night in fear, cleaning and oiling their weapons in preparation for the great conflict ahead? Stockpiling rations and water and fuel and the other things they’ll need to defend themselves.

Have they hardened their homes, or do they think their ranch-styles can stand up to a miliary assault? Are they all fully practiced in warfare by going out in the country in their camo gear and shooting at targets that don’t shoot back? What do they really think is going to happen when the federal government decides to “come for them?”

Republicans who resist any form of gun regulation are among those rarest of people who can keep two totally contradictory ideas in their heads at the same time. Normally trying to do this would create overwhelming cognitive dissonance, but apparently if you listen to the repetitive lying and dissembling on Fox News long enough, you can hold those self-contradictory ideas in your mind and believe both are true.

You go to work, pay taxes (they’re withheld from your pay) to fund the government that’s preparing to come for you. If you lose your job, you may get government assistance but that’s OK because … well, you need the money, and the government has systems in place to help you. Even as it secretly prepares to come for you. Still, you give them the money willingly. If you live in a place that is hit by, say, a hurricane, you will get help from the government, and you’ll take it. You will still be afraid. Not of the possibility of no help, but afraid that the government that’s helping you is going to come for you at some point and therefore you must have a stash of automatic weapons and ammo with which to defend yourself and family and property against … Army tanks, Air Force bombs, all of it. Maybe you should watch some old war movies so you can see what you’re going to be up against when they come for you.

Meanwhile, back at the local school, someone’s son – it’s always a male – will find your neighbor’s stash and assassinate school children. The shooter will usually die in the effort, but not before mass slaughter is accomplished. You’ll join the mourners with thoughts and prayers, but you will still be afraid, not of the neighbor’s sullen and obviously disturbed son, but afraid that the government is going to come for you.

And so, you continue to vote for politicians who tell you that the government in which they serve as elected leaders is so untrustworthy that any day now it’s going to come for you. So, rather than support reasonable protections against the neighbor’s son, who may well kill your own children, you will continue to resist any and all reasonable efforts to contain the cancer that afflicts the United States, alone among advanced nations. No matter how many children are massacred. All because you’re afraid.

Memes Again — Devoted to Guns

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WARNING: many of the images here are disturbing to anyone who is not enamored of guns. DO NOT LOOK further if you think you may be emotionally damaged by these images. They tell a story but it is the saddest story I know. PLEASE be careful.

This first set of images was selected from the suddenly archived website of Daniel Defense, the company that made/sold the weapon used by the Uvalde, Texas school shooter.

The caption on this one read: “He is Risen.” Followed by a hands-in-prayer emoji:

Caption: Don’t miss the chance to spoil mom this Mother’s Day! Take 25% off all ladies’ tees and save on gifts that will have mom feeling like #1. Valid through May 9, 2022. Shop for mom today at danieldefensestore.com .
This one advocates using sound suppressors:

Finally, and most remarkable, with this caption: “Train up a child in the way he should go, and when he is old, he will not depart from it. 🙏”

The remaining images are from Twitter & Facebook posts.

You likely know that we lead the world in gun deaths. You also know that every effort to address the issues has been stymied by Republican politicians. You know what to do.

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Cowards

Memes Again — Devoted to Guns

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