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Prosecution of Donald Trump

People in media and elsewhere are falling all over themselves to influence the public’s understanding of Donald Trump’s guilt for multiple crimes while in office and thereafter. The nature of these “explanations” for the “difficulties” of convicting Trump have shifted somewhat. At first, there were the “defenses” suggested around whether Trump was legally responsible for inciting the January 6 attack on the Capitol. You know, the First Amendment that he was just engaged in protected “political speech.” That argument has pretty much dissolved in the face of overwhelming evidence developed by the January 6 Select Committee and other sources noting, correctly, that speech that is part of a criminal conspiracy, for example, is not protected “freedom of speech.”

We now have Republicans with credentials suggesting there are major difficulties in the path of Attorney General Garland’s struggle whether to indict the former president. In a Sunday New York Times “Guest Essay,” entitled “Prosecute Trump? Put Yourself in Merrick Garland’s Shoes,” Jack Goldsmith argues that the AG has three difficult decisions to make.

Mr. Goldsmith’s credentials are imposing. He served in the George W. Bush administration as an assistant attorney general, office of legal counsel, and as special counsel to the general counsel (??) of the Department of Defense.  He is a Harvard law professor and a senior fellow at the Hoover Institution (yes, that Hoover), and a co-author of “After Trump: Reconstructing the Presidency.”

To his credit, Goldsmith admits up front that Trump’s claim of election fraud was false. He also admits that, faced with multiple failures to secure his objective, Trump “riled up a mob, directed it to the Capitol and refused for a time to take steps to stop the ensuing violence.”

To mitigate this problematic situation, Goldsmith says Garland must first decide who should decide whether to indict Trump. He argues that DOJ likely has a conflict of interest because Garland’s “boss,” President Biden, is a likely opponent of Trump in the 2024 election. Thus, if another condition is met (Garland believes appointment of a special prosecutor is “in the public interest”), the AG must appoint a special counsel (another Mueller) to investigate Trump and decide the indictment issue. He goes so far as to note that “some people” believe that a quasi-independent special counsel should be a Republican (and you thought my reference to Mueller was just historical; remember who we’re talking about here).

After more back-and-forth, and like a good law professor, Goldsmith concludes this issue with the observation that “Garland could legitimately conclude that the public interest demands that the Trump matter be guided by the politically accountable person whom the Senate confirmed in 2021 by a vote of 70-30.” I think that means Garland could decide that Garland should decide.

This is where things get really hinky. The second major decision, Goldsmith says with a straight face, is whether Garland,

has adequate evidence to indict Mr. Trump… The basic question here is whether, in the words of Justice Department guidelines, Mr. Trump’s acts constitute a federal offense and “the admissible evidence will probably be sufficient to obtain and sustain a conviction.” [emphasis added]

These issues, Goldsmith says, “will be hard conclusions for Mr. Garland to reach.”

To that, I say, C’mon, man. Be serious.

Goldsmith’s argument is that the evidence developed by the January 6 Select Committee is too “one-sided” and that,

Garland must assess how any charges against Mr. Trump would fare in an adversarial criminal proceeding administered by an independent judge, where Mr. Trump’s lawyers will contest the government’s factual and legal contentions, tell his side of events, raise many defenses and appeal every important adverse legal decision to the Supreme Court.

Putting aside the position of the freshly corrupted Supreme Court (the Thomas scandal, questions about who paid Kavanagh’s debts, etc.), the rest of these issues, while certain to be raised, pose no serious threat to a well-crafted evidentiary case that overwhelmingly, just on what we now know, demonstrates Trump’s guilt on multiple federal counts. See, for example, the Brookings Institution’s report, Trump on Trial. See prior post, https://shiningseausa.com/2022/06/20/trump-crimes-report-marked-up/ And that does not include the nine remaining counts of obstruction of justice that Mueller uncovered but felt he was blocked by DOJ policy on indicting a sitting president.

Undeterred, Goldsmith suggests Trump has potential defenses in the argument that “he lacked criminal intent because he truly believed that massive voter fraud had taken place” and “his interpretations of the law, his pressure on Mr. Pence, his delay in responding to the Capitol breach and more — were exercises of his constitutional prerogatives as chief executive.” I don’t know whether to laugh or cry.

Goldsmith can call these arguments “legally powerful claims” all he wants, but the weight of reality is simply too great here. More on the “intent” issue in a bit.

Goldstein then says the third issue, in his reckoning the most difficult, is: “whether the national interest would be served by prosecuting Mr. Trump.”

He rightly says this is “a judgment call about the nature, and fate, of our democracy.”

A failure to indict Mr. Trump in these circumstances would imply that a president — who cannot be indicted while in office — is literally above the law, in defiance of the very notion of constitutional government. It would encourage lawlessness by future presidents, none more so than Mr. Trump should he win the next election. By contrast, the rule of law would be vindicated by a Trump conviction. And it might be enhanced by a full judicial airing of Mr. Trump’s possible crimes in office, even if it ultimately fails.

And yet Mr. Garland cannot be sanguine that a Trump prosecution would promote national reconciliation or enhance confidence in American justice. Indicting a past and possible future political adversary of the current president would be a cataclysmic event from which the nation would not soon recover. It would be seen by many as politicized retribution. The prosecution would take many years to conclude; would last through, and deeply impact, the next election; and would leave Mr. Trump’s ultimate fate to the next administration, which could be headed by Mr. Trump.

Along the way, the prosecution would further enflame our already-blazing partisan acrimony; consume the rest of Mr. Biden’s term; embolden, and possibly politically enhance, Mr. Trump; and threaten to set off tit-for-tat recriminations across presidential administrations. The prosecution thus might jeopardize Mr. Garland’s cherished aim to restore norms of Justice Department “independence and integrity” even if he prosecutes Mr. Trump in the service of those norms. And if the prosecution fails, many will conclude that the country and the rule of law suffered tremendous pain for naught.

Mr. Goldstein is a master of both-sides-ing. But the effort fails in my judgment because:

  • It is not the Attorney General’s job to promote national political reconciliation. His job is to prosecute serious violations of federal law. There are none more serious than the attempts to overthrow the government, subvert the election and declare Trump the winner even though he lost.
  • Confidence in the justice system, already threatened by partisanship and conflicts of interest on the Supreme Court, cannot be promoted by letting a public criminal walk free just because he was president.
  • Republicans have already made clear that, if they gain enough political power, they will pursue policies of retribution wholly independent of substantive merit. If Trump has a role in that, it should be from prison.
  • The people who will see Trump as a victim of politicized justice are the same people who deny Biden’s election victory. In the grand tabulations involved here, they are entitled to zero deference.
  • Justice Department norms of independence and integrity, undermined by Trump, can only be restored by indicting and trying Trump, not by pretending none of this happened.
  • If the Department of Justice won’t stand up for our democracy, we will, as Ben Franklin suggested, lose our republic.

I noted above that I would return to the issue of “intent” that many observers have claimed is the centerpiece of the legal defenses Trump would raise. See “Despite Growing Evidence, a Prosecution of Trump Would Face Challenges.” https://nyti.ms/3xKwrZ9 The authors of these ideas continue to suggest that Trump’s “intent,” his “corrupt state of mind, or not,” is a real issue and challenge for any prosecution.

Given what we already know, these concerns about Trump’s intentions border on preposterous. The repetition of them seems designed to prime the public mind to believe something that, like the Big Lie, is quite unbelievable because of, you know, the facts.

The New York Times piece recites Trump’s “arguments” based on a 12-page statement he issued last week, a statement the article described as,

· “rambling”

· “usual mix of outlandish claims, hyperbole and outright falsehoods”

· “unfounded”

· “obvious problems of credibility”

But also,

On nearly every page, Mr. Trump gave explanations for why he was convinced that the 2020 election had been stolen from him and why he was well within his rights to challenge the results by any means available. What happened at the Capitol on Jan. 6, 2021, Mr. Trump wrote, stemmed from an effort by Americans “to hold their elected officials accountable for the obvious signs of criminal activity throughout the election.”

If the Justice Department were to bring a case against him, prosecutors would face the challenge of showing that he knew — or should have known — that his position was based on assertions about widespread election fraud that were false or that his attempt to block the congressional certification of the outcome was illegal. [emphasis added]

As a potential defense, the tactic suggested by Mr. Trump’s statement is far from a guarantee against prosecution, and it presents obvious problems of credibility. Mr. Trump has a long history of saying whatever suits his purposes without regard for the truth. And some of the actions he took after the 2020 election, like pressing officials in Georgia to flip enough votes to swing the outcome in that state to his column, speak to a determined effort to hold on to power rather than to address some broader perceived vulnerability in the election system.

But his continued stream of falsehoods highlights some of the complexities of pursuing any criminal case against him, despite how well established the key facts are at this point.

What? The article emphasizes that Donald Trump is a dishonest and remorseless serial liar while simultaneously saying this complicates prosecution of him? This bizarre position is apparently based on the views of Daniel L. Zelenko, a white-collar defense lawyer and former federal prosecutor:

“The key is having contemporaneous evidence that he was saying that he knew the election was not stolen but tried to stay in power anyway,” said Mr. Zelenko, a co-chair of the white-collar defense practice at Crowell & Moring. “The problem with Trump is that you have to try and get inside his mind, and he has such a history of lying and pushing falsehoods that it makes it difficult to determine what he really believes.”

Another authority, Samuel W. Buell, a law professor at Duke University and former federal prosecutor, said:

any criminal case against Mr. Trump would have to start with establishing that he had been aware that what he was doing was improper. “You need to show that he knew what he was doing was wrongful and had no legal basis,” he said. “I’m not saying that he has to think: What I’m doing is a crime. It’s proving: I know I don’t have a legal argument, I know I’ve lost the election, but I’m going ahead with a known-to-be-false claim and a scheme that has no legal basis.”

If that is the standard, it has been met many times over. No rational juror could find otherwise based on the evidence presented during the January 6 hearings.

I recognize, of course, the article’s point that, “The House committee’s hearings are not a trial. The panel is free to be selective in what testimony it employs to build a case against Mr. Trump, and the former president has no allies on the committee who can question witnesses or provide information helpful to him.”

Consider for a moment who might be Trump’s “witnesses” to rebut the allegedly selective, but entirely consistent and multiply attested to, evidence presented by the January 6 Select Committee: Rudy Giuliani, Lin Wood, John Eastman, Jenna Ellis, Sidney Powell, and others similar. Most of them have either had their law licenses suspended, are subject to disciplinary proceedings or pleaded the Fifth Amendment 100 times when testifying to the January 6 Committee.

Against that “evidence,” would be the testimony of the former Attorney General (Barr), a Trump loyalist, and numerous other highly credentialed people who had investigated the fraud claims and advised Trump there was no evidence to support his claims. Also, Greg Jacob, VP Pence’s chief counsel. And many many others.

Unless we are going to follow a rule of law that says a person’s intent is measured entirely by whatever phantasmagorical imaginings they choose to adopt, which is not the law [unless they want to argue that Trump is insane, in which case, he gets committed 😎😃], Trump’s corrupt state of mind can readily be proven beyond a reasonable doubt.

The fact, if it is one, that he wanted to believe something else, something that was false, cannot be accepted as a defense any more than we would accept the excuse that the driver causing a fatal accident was blind drunk at the time. Every one of Trump’s responsible advisors told him, some many times, that there was no credible evidence of voter fraud that could change the result. He continued to declare that he won “by a landslide.”

It is beyond astonishing that credence is being given to the idea that because Trump was a serial liar, it may be harder to prove his guilt:

Expert advice is often enough to show a jury what a defendant knew, lawyers said. But that may be more difficult with Mr. Trump because he has such a long history of disregarding experts and his own aides, they said. Given the challenge of showing what Mr. Trump actually knew, there is one other way prosecutors could show he had a corrupt intent: proving what is often called “willful blindness.

Nonsense. The prosecution may choose to jump through all those hoops, but it should be more than sufficient to prove that Trump’s credible advisors told him his claims were false, but he persisted with the Big Lie anyway. A properly instructed jury could rationally and easily find Trump guilty on that basis. The suggestion that the prosecutors must somehow plumb the depths of Trump’s “mind” to determine and prove his subjective intent in fact is unnecessary and impossible. His behavior tells you what his mind was thinking. Trump has never cared about the truth and has always used his large resources and willing accomplices to avoid being held accountable. In this case his public conduct and the disclosed facts are more than sufficient to convict.

I recognize, however, there is the “what if we indict, try and lose” school of thought. The answer is, I suggest, straightforward. There are no guarantees when it comes to criminal prosecution. But we’re talking about the fate of the country here. This is no time for timidity. If DOJ’s leadership is too afraid of the possibility, however remote, of defeat, it should be replaced forthwith by people of more courage and determination.

I am at a loss as to why the media and many lawyers continue to treat Trump like a grammar school-aged toddler who still believes in Santa Claus and the Tooth Fairy. I understand that there are people, more than we would care to think, who genuinely believe that the Earth is flat, that aliens walk among us, that Q is real and on and on. But those “beliefs” would not be effective defenses to, say, a charge of bank robbery: “Well, your Honor and members of the jury, it’s true I robbed the bank, but I did it only because an alien visited me and said his group needed the money to buy a spaceship for return to their home planet. Many people want the aliens to leave so I was justified. You must find me innocent.”

Enough with this nonsense. Indict him, try him, and convict him.

 

Thoughts & Prayers

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.

Past the Point of No Return

The New York Times just published a “guest opinion” piece by J. Michael Luttig, a former judge on the U.S. Court of Appeals for the Fourth Circuit and an advisor to Republican senators. https://nyti.ms/3HS9cjT

The article is entitled, The Conservative Case for Avoiding a Repeat of Jan. 6. That language suggested to me that the argument would be that we should just accept the Big Lie that the last election was stolen, accept massive voter suppression legislation around the country in red states and, as a democracy, roll over and not only play dead but be dead. My second reaction was, over my dead body.

Turns out, I was overreacting. My first impression of the topic was wrong. Moral: always read the story before falling for the headline. So, I did.

Luttig, to be sure, is a learned man, shaped in the higher echelons of Republican politics and the judiciary during the halcyon days of the Reagan and G.W. Bush administrations. I say “halcyon” because this was the time when the Republican Party still purported, at least, to stand for something. Luttig eventually resigned from the Court of Appeals to become Boeing’s General Counsel with a reported pay raise of more than $2.5 million. https://bit.ly/3Jvs88e Pretty good for a boy from Tyler, Texas.

I mention all that because, as is often true, challenging someone of his standing and accomplishment can be … challenging. But what are they going to do? I don’t practice law anymore and I do love a challenge. So, let’s look at Luttig’s latest thoughts on the all-important subject of avoiding another violent attack on the government and the Constitution.

To his credit, Luttig recognizes that Trump and his Republican devotees represent a “clear and present danger” to our democracy. Noting issues with the language of the 1887 (yes, over 120 years ago) Electoral Count Act, he further acknowledges that the efforts of Senators Hawley and Cruz to overturn the election were based on “little more than a wish” and notes that Trump has confessed to his perfidy, both past and looking forward.

Trump’s continued promotion of the Big Lie has never been an issue. As president he stated he could do “whatever I want” and he still thinks that. Here’s where things get sticky for Judge Luttig.

Referring to the mythical remnants of the Republican Party after deducting Trump fantasists, Luttig says they are “mystifyingly stymied by Mr. Trump” and while they allegedly reject his lies about 2020,

they are confused as to exactly how to move on from the 2020 election when their putative leader remains bewilderingly intent on driving the wedge between the believers in his lies and the disbelievers.

This political fissure in the Republican Party was bound to intensify sooner or later, and now it has, presenting an existential threat to the party in 2024. If these festering divisions cost the Republicans in the midterm elections and jeopardize their chances of reclaiming the presidency in 2024, which they well could, the believers and disbelievers alike will suffer.

In moving with such facility from “clear and present danger to democracy” to concern about the “existential threat to the {Republican] party,” the Judge reveals his true goal is to right the listing Republican ship and enhance its political fortunes, notwithstanding its hypnotic devotion to Trump. If so, his argument has little or nothing to do with protecting the country from the collapse of democracy.

Luttig’s argument is another variation of “can’t we all just get along?”

the right course is for both parties to set aside their partisan interests and reform the Electoral Count Act, which ought not be a partisan undertaking.

“Ought not,” indeed. My, oh my, what a wonderful world it could be.

Luttig completes the fantasy analysis by assigning mutually reinforcing goals to the two parties. This is a standard tenet of books and courses on negotiating for “mutual gain.” Democrats, Luttig imagines should want to reform the Electoral Count Act to protect democracy which he admits is failing.  This, he speculates, would “prevent another attack like the one at the Capitol on Jan. 6, 2021.” The logic of that premise-conclusion escapes me. As Peter Navarro has insisted, the aim of the January 6 mob was to force the election into the hands of the states, where the Republican majority would install Trump. They didn’t really care what the law said or what power Vice President Pence actually had under the law.

The mutual gain in Luttig’s conception is that “Republicans should want to reform the law for these same reasons, and more.”  Uh huh. He asserts that, while Trump and Trumpers won’t join, “there are consequential reasons of constitutional and political principle for the large remainder of Republicans to favor reform in spite of the former president’s opposition.”

“Consequential reasons of constitutional and political principle” —  got it. I am rolling on the floor LMAO. Except it’s not funny. Luttig’s thesis, right out of the old and long-ago discarded Book of Republican Orthodoxy, is that,

Republicans are proponents of limited federal government. They oppose aggregation of power in Washington and want it dispersed to the states. It should be anathema to them that Congress has the power to overturn the will of the American people in an election that, by constitutional prescription, is administered by the states, not Washington. If the Democrats are willing to divest themselves of the power to decide the presidency that the 49th Congress wrongly assumed 135 years ago, then it would be the height of political hypocrisy for the Republicans to refuse to divest theirs.

Well, now, isn’t that wonderful. Republicans favor limited federal government. Unless, of course, their state gets hit by a big hurricane or flood. Then they are more than happy to line up for federal money and manpower. Actually, I had understood that Republican orthodoxy was opposed to big government everywhere, but that idea was trashed in Texas recently. Republicans are perfectly fine with big government telling people what to do and not do, as long as it aligns with their religious or so-called freedom and family values.

Putting aside Luttig’s phantasmagorical search for coherence in Republican political doctrine (it being the party that advanced no platform in 2020), he next argues that Republicans should want reform of the Electoral Count Act because it is blatantly unconstitutional.”

Trump acolytes like Mr. Cruz and Mr. Hawley should appreciate the need to reform this unconstitutional law.

… no Republican should want to be an accessory to any successful attempt to overturn the next election — including an effort by Democrats to exploit the law.

Did you catch that unsubtle attempt to both-sides the question? He goes on to suggest that it’s the Democrats that may abuse the ECA in 2024 and thus Republicans should support a statutory redo to prevent that heinous outcome.

Someone please make him stop. Cruz and Hawley caring about the constitution? Seriously?

Luttig argues that reform should include giving federal, yes, federal, courts the power to resolve disputes over state electors and to ensure compliance. Right. Remember Gore and Bush?  And recall that the courts do not have command of the means to enforce anything. That power largely, if not entirely in practice, resides in the Executive Branch.

There are other details to Luttig’s proposals, but, frankly, madam, I don’t give a damn. The Republicans are so dug in on resisting any and every action supported by Democrats that the debate over electoral count reform could last decades. All the while Trump would be whining that he was cheated and his lunatic fringe supporters would continue attacking state capitols and Congress … unless and until the leaders of these fascist efforts are indicted, arrested, tried, and imprisoned.

Recall that the Republican Party has, among other things, embraced many of the conspiracy theories of QAnon, failed to discipline members like Lauren Boebert and Marjorie Taylor Greene, supported a president who lied and dissembled about a deadly virus that has now killed more than 915,000 Americans and maimed countless more, and twice refused to convict on impeachment in the face of overwhelming evidence of guilt. These people are not going to do anything to help the country resist the fascism they regularly promote.

If Luttig is right that “the future of our democracy depends on reform of the Electoral Count Act” that was enacted in 1887, we are in more trouble than rewriting an obscure statute can fix. It’s fine to say that “Republicans and Democrats need to put aside their partisan differences long enough to fix this law.” Fine indeed, but such proposals will have no credibility as long as the planners/leaders/major perpetrators of January 6 walk free. Senators Manchin and Sinema have put the last nail in the myth of bipartisanship.

And that’s the one point that Luttig got right:

the only members in Congress who might not want to reform this menacing law are those planning its imminent exploitation to overturn the next presidential election.

If you remain in doubt as to who they are, their names may be found here, https://bit.ly/3gPVNwM, in the updated Congressional Hall of Dishonor

In closing, let me repeat: no statutory language changes are going to protect our democracy from elected and unelected officials who have no respect for law or oaths of office. The Republican Party has made clear beyond reasonable doubt that it is committed to obtaining and keeping power permanently by whatever means are necessary. If it were otherwise, it would have formally repudiated the lying traitor Donald Trump. Instead, it has embraced him as its leader. Just ask Lindsey Graham.

People who believe in the American democracy, however flawed it may be, had better remain alert to the danger and act/vote accordingly. Don’t be distracted by appeals to bipartisanship and unity, however (or not) well-intended. We’re well past the point of no return.

It’s the Same Old South?

Déjà vu all over again. The ink is barely dry on the conviction papers of the three men who chased and killed Ahmaud Arbery when two more white men repeat almost exactly the same behavior in Mississippi. White father and son charged for chasing and shooting at Black FedEx driver https://cnn.it/3BeEKO6 The only saving grace here is that the Fed Ex delivery man was not physically injured. Both he and the people in the neighborhood who were at risk of being hit by errant bullets escaped with their lives. Also, the other drivers on the interstate highway where the two white men chased their intended victim.

I acknowledge that I don’t know why Federal Express would have a rented but unmarked van in service for delivery of packages, but it doesn’t matter in the end. According to the reporting, the delivery man, D’Monterrio Gibson, was wearing a FedEx jacket, shirt and pants.

But let’s suppose he was somehow behaving in a “suspicious manner” which is one of those eye-of-the-beholder things. One man’s suspicious behavior is another’s harmless curiosity. But let’s suppose that in the process of delivering packages, Mr. Gibson was lingering a bit at some homes. Maybe his attention was caught by something or other. Let’s further suppose that Mr. Gibson’s “suspicious manner” was observed by the father-son team who shot at him and chased him.

The assailants had one and only one course of action: call the police. If it appeared that the “suspicious” delivery man was about to depart the neighborhood, the only course of action was to record the license plate, take photos is possible and await arrival of the police. In the most extreme circumstance such as an observed kidnapping, which does not appear to be true here, they might be justified in following at a safe distance and staying in touch with 911 dispatch to help the police catch up.

Given the reported circumstances, there was no basis for the assailants to chase and shoot at Mr. Gibson. And, while we’re on this, do Gregory and Brandon Case normally sit around during the day with guns at the ready?

The resemblance of this situation to the murder of Ahmaud Arbery is so obvious I am loathe to point it out.

There are other similarities too.

I wrote about some of the disturbing early developments in the handling of the Arbery case arrests and prosecutions. https://bit.ly/3HRlEAs  According to initial reports, many of the same procedures are occurring here: delays in arrests, failure to charge the most obvious and serious crimes. That said, it is entirely possible yet that the Case boys will see their charges upgraded to at least attempted murder.

It seems to me that two forces, at least, are at work here. One, certainly, is the apparent belief among some white men in the South that they are entitled to use deadly force against anyone they deem “suspicious,” serving, in effect, as self-appointed police making what are euphemistically called “citizens arrests.” The second force, all too obvious, is that white men in these places, mostly though not entirely in the South, are all too ready to take matters into their own hands, use violence against unarmed Black men on the thinnest of pretexts. On the face of it, noting here that it is early days in this case, there is little to distinguish this from lynching in old style.

According to the reports, the charges against the Case men were (1) Brandon Case: “feloniously attempting to cause bodily injury with a firearm and a deadly weapon by shooting at an occupied vehicle with Gibson inside.” Presumably a reference to Mississippi Code Title 97. Crimes § 97-3-7:

(2)(a) A person is guilty of aggravated assault if he (i) attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life;  (ii) attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm.  [emphasis added]

Conviction under that section is “imprisonment in the county jail for not more than one (1) year or in the Penitentiary for not more than twenty (20) years.” That curious wording appears to give the sentencing judge massive discretion on where to send a convicted felon and for how long.

The father, Gregory Case, is charged with “unlawfully and feloniously conspiring with Brandon Case to commit aggravated assault by attempting to cause bodily injury.” Under the law, conspiracy can be proved by conduct and does not require proof of an overt or explicit agreement.

The assertion of “aggravation” in relation to the assault is important here because, while “simple assault” in Mississippi is defined this way,

(1)(a) A person is guilty of simple assault if he (i) attempts to cause or purposely, knowingly or recklessly causes bodily injury to another;  (ii) negligently causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm;  or (iii) attempts by physical menace to put another in fear of imminent serious bodily harm

It is punishable only by a fine ($500.00) or by imprisonment in the county jail for not more than six (6) months, or both.

The charges seem correct as far as they go. Time will tell on that. It is concerning, however, thatBrandon Case’s bond was $150,000 and Gregory’s Case’s bond was $75,000. Those seem very light considering that a deadly weapon was involved and that Gibson and people in surrounding homes and vehicles were put at risk by the Cases’ actions (still alleged, of course, and innocent until proven guilty). Also disturbing is Mr. Gibson’s assertion that when he visited the police station the morning after the incident, the police there did not take his claim seriously and, among other things, implied that the incident might have been caused by his own behavior.

I repeat that nothing about this story, so far, indicates or suggests that Mr. Gibson did anything that would warrant his being chased and shot at. It is hard to imagine what circumstances that could have been.

Adding to concerns about the handling of the case is the fact that the perpetrators weren’t arrested for eight days and then only after they came to the station for an interview. The Police Chief said, “investigations take time” and no doubt they do. The Gibson case was likely not the only serious problem the Brookhaven police had on the blotter for the day. However, it involved gunfire and that should have led, one would think, to bringing the suspects in immediately.

Finally, it’s more than a little disturbing that, the day after the attack, FedEx assigned Mr. Gibson the same route. Using the usual cliches that companies almost always use in such circumstances, FedEx’s statement said it “takes situations of this nature very seriously” and that it was “shocked” by the attack. Because, you know “the safety of our team members is our top priority.” Surely someone at FedEx could come up with something more original than those canned statements. And what’s with “leave without pay” in these extraordinary circumstances? FedEx has plenty of resources with which to do better for its employees.

In any case, as noted, it’s early days. The similarities to the Arbery case are stunning and reminiscent of a South many of us had, foolishly, thought was over. The “wild west” character of these incidents is a stark reminder of how far we have yet to go in creating a civilized society that treats all people as worthy of respect until proven otherwise. We will no doubt hear a lot going forward about the legal principle of “innocent until proven guilty.” Fine, but the question remains why the Cases did not apply that principle to Mr. Gibson. Why, indeed.

The Cat is Out of the Bag

When it was revealed that General and Chairman of the Joint Chiefs of Staff, Mark Milley, had intervened in anticipation that Trump might use the military to keep himself in office, strong backlash was heard from some in the military, present and former. They appeared to believe that it was wrong for Milley to move independently of the president who was his commander-in-chief, regardless of his fears that Trump might act to subvert the election with military force or start a nuclear conflict and declare martial law.

That position was, I thought at the time, unbelievably short-sighted and mindless. Accepting that chain-of-command is important, I thought, and still believe, that General Milley is an American hero for seeing a fundamental danger to the country and acting to prevent it.

Now come three other generals (retired) arguing that “The military must prepare now for a 2024 insurrection.” https://wapo.st/3e8J6vH “We are chilled to our bones at the thought of a coup succeeding next time.”

I am too, and so should you be. We are facing the most serious threat to our democracy since the Civil War.

The case made by the generals is compelling:

  • Many of the insurrectionist mob on January 6 were veterans or, even more remarkable, active-duty military;
  • The commander of the Oklahoma National Guard refused to compel COVID vaccination of his Guard members because the Governor of the state said he should not follow the President’s directive;
  • “The potential for a total breakdown of the chain of command along partisan lines … is significant should another insurrection occur. The idea of rogue units organizing among themselves to support the “rightful” commander in chief cannot be dismissed;”
  • The real possibility exists that state Guard units will follow their political preferences if their candidate loses the next election;
  • Access to state arms repositories might be loosened to aid insurrectionists prepared to do battle;
  • Often ignored, the distraction of a violent domestic conflict over the election with a divided military would make the U.S. vulnerable to attack by international enemies;
  • We have passed the stage of mere strong political disagreement and must urgently prepare for worst-case scenarios, by, among other things, holding the leaders of January 6 to full accountability for their actions;

The generals who have spoken out about the danger have made several compelling proposals for preventive measures:

  • An immediate civics review for all uniformed and civilian military regarding the Constitution they have sworn to uphold and on the subject of election integrity, the laws of war and how to deal with illegal orders;
  • Re-inform members about the “unity of command,” so there is no question about who is in command;
  • “identify, isolate and remove potential mutineers” and “propagandists who use misinformation to subvert the chain of command.”
  • war-game the next potential post-election coup attempt to identify weak spots, debrief the findings and act to prevent breakdowns in the military and in connected civilian agencies.

A major step in support of this pro-democracy agenda involves the military and Department of Justice acting aggressively and urgently to hold accountable those who participated in and/or led and/or conspired to induce the attack on the Capitol. Regardless of what led people to involve themselves in what was a blatantly and unquestionably unlawful assault on the government, minds are not going to be changed any time soon.

The remedy for now is to make clear that the penalties for such conduct will be administered severely and promptly. Military who participated should be expelled from the service. They have no excuse for violating their oaths of loyalty to the Constitution. Similarly, the January 6 House Select Committee must adopt a sense of urgency and work continuously until its mission is completed.

Simultaneously, the Department of Justice must, with equal urgency, complete its investigations and indict the leaders in Congress and the former White House (and associated advisors) and elsewhere who participated in, conspired to incite or aided-and-abetted the January 6 assault. It should not take a week or more to hold in contempt individuals who refuse to comply with subpoenas or who falsely claim the Fifth Amendment while simultaneously proclaiming their innocence and make false accusations about the process.

Among the other obvious dangers here is that these investigations will drag on, the TrumpPublican Party will regain full control of the Congress (not dependent on the cooperation of people like putative Democrat Sen. Joe Manchin) and activity to investigate and hold accountable will be halted. If that happens, you can kiss our democratic republic goodbye, perhaps for good. The authoritarian goals of the TrumpPublicans are to entrench their power permanently. Democracy is at stake. Time is running out. Politics as usual is not good enough. If we do not act in the face of the threat, we will deserve what we get.

Not Dead Yet

This is a bit delayed but it’s never too late to show life standing up to the ravages of time and other deadly forces. In this post we cover recent visits to two local parks where signs of life remain despite the imminence of winter. Temperatures in the DC area have varied dramatically and there have been some very cold nights. Still …. see for yourself. Plants still live. Ducks are still around. And, of course, the beavers never stop. Neither do the people who tend to these places.

Huntley Meadows

Mason Neck

Mason Neck State Park is also the Elizabeth Hartwell Mason Neck National Wildlife Refuge, though at this time of year the wildlife is sparse, or at least hard to spot. Nevertheless, we saw lots of woodpeckers although they were too small and flittish to photograph. Here is a sample of that walk on the roughly one-mile Bayview Trail. You will see that the beavers have been at work there as well. The squirrel appeared out of nowhere and scaled the tree in seconds, only to freeze, as they do, when he realized I was watching. He did not flinch for several minutes as I waited for a better photo angle. The duck blind was empty which may explain the casual attitude of the ducks and geese on the water.

Happy sunsets!

Touring the Refuges (Wildlife)

Needing a break from the … everything … and having our planned Hawaii trip postponed thanks to raging COVID, we decided to fulfill one of my long-time goals – visiting the wonderfully named Great Dismal Swamp – and see a few of the many other wildlife refuges in the general neighborhood of the GDS. Virginia Beach would be our base of operations.

Note: if you believe we’re still in the midst of a pandemic (hint: we absolutely are), don’t go to Virginia Beach, Norfolk or anywhere in the vicinity. Almost no one wears a mask in any situation. Also, the Hilton Hotel, and likely others in the area, was having major staffing issues with an apparent inability to fulfill many commitments (they did reduce our bill). On the other hand, do visit Katie’s 33rd Street Café on the boardwalk for breakfast. Outstanding.

Here is breakfast at Katie’s and the outdoor seating area early on a Sunday:

Eastern Shore of Virginia Wildlife Refuge

Visited on the way down, a fortunate decision since there was relatively little to see. This refuge comprises 1,127-acres in Northampton County at the southern end of the Eastern Shore and near the tip of the Delmarva Peninsula. You can skip it without missing much.

Great Dismal Swamp

As stated above, I have wanted to visit this place for years. Much of the Swamp is actually in North Carolina. Back in 2008 an unplanned fire started in the GDS as a result of logging operations and burned 4,884 acres over 121 days. Another fire was started in some of the remains in 2011. That fire covered more than 2,000 acres. We happened to be driving down I-95 at the time and recall that the road was engulfed in chocking acrid smoke for many miles. https://www.fws.gov/fire/news/va/southone_final.shtml

The Great Dismal Swamp is well-named. While there are some boardwalks to permit easy access to some of the interior, the view into the Swamp is imposing. The vegetation, alive and dead, appears to the eye as a tangled impenetrable web of many dead plants. Lots of vines and eerie-looking live things.

One of the most interesting elements of GDS is Lake Drummond, reachable on a hard-pack 6-mile road, a slow but surprisingly easy drive. Lake Drummond is unusual for several reasons. It is underlain by peat, giving the water a spooky dark look. When we were there, there was nary a ripple on the surface.

Birdsong Peanuts

After leaving the Swamp, we were startled to see a large “factory” in this place (Suffolk) and stopped briefly for a look. It was in fact a “shelling” facility. The explanation from the company:

Birdsong buys carefully selected peanuts directly from the farmers’ fields. They are then cleaned, shelled, sized and shipped in truckload lots to manufacturers who turn them into many popular food items, from peanut butter to peanut M&M’s. If you eat products made from American peanuts, chances are you’ve consumed peanuts from Birdsong.

Birdsong serves our customers from six shelling plants strategically located throughout the peanut growing area. The plants are supported by over 85 buying points and enough warehouses to store 2.4 billion pounds of Farmers Stock in the shell. We also have enough cold storage, usually ranging from 38° to 42°F, to keep 250 million pounds of shelled peanuts in a controlled environment for our manufacturer customers. [https://www.birdsongpeanuts.com/locations]

Imagine that: 2.4 billion pounds of peanuts.

Back Bay & False Cape

Back Bay National Wildlife Refuge

Back Bay National Wildlife Refuge was established on June 6, 1938 as a 4,589-acre refuge to provide feeding and resting habitat for migratory birds. It is a critical segment in the Atlantic Flyway. As the metropolitan area of Virginia Beach began to grow in the 1980’s, the U.S. Fish and Wildlife Service pursued a land acquisition program to double the size of Back Bay NWR [to over 9,250 acres] in order to protect the watershed from harmful development.

Back Bay NWR includes a thin strip of barrier island coastline typical of the Atlantic and Gulf coasts, as well as upland areas on the west bank of Back Bay. Habitats include beach, dunes, woodlands, agricultural fields, and emergent freshwater marshes. The majority of refuge marshes are on islands within the waters of Back Bay.

Thousands of tundra swans, snow and Canada geese and a large variety of ducks visit the refuge during the fall/winter migration. Refuge waterfowl populations usually peak during December and January. [we missed this]

False Cape State Park, comprised of 3,844 acres, sits between Back Bay and the Atlantic Ocean, The Park is one of the last remaining undeveloped areas along the Atlantic coast.

False Cape is unusual in that the park is accessible only by foot, bicycle, tram or boat. Public vehicular access is not allowed at any time.

False Cape features guided kayak trips, primitive camping, interpretive programs, hiking and biking trails, and 6 miles of pristine Atlantic Ocean beach.

The beach extends all the way to North Carolina.

The park operates a tram that leaves from the Back Bay National Wildlife Refuge from April 1 through October 31. The tram runs through the Park’s Barbour Hill area and Wash Woods historic site. Most of the photos that follow were taken from the tram.

First Landing

First Landing is also a Virginia State Park consisting of 2,888 acres. https://bit.ly/3r8zvNg

The Park’s name derives from its remarkable history:

The park is where English colonists first landed in 1607. Native American canoes, Colonial settlers, 20th-century schooners and modern cargo ships have navigated the park’s waterways. Its cypress swamps were a source of fresh water for merchant mariners, pirates and military ships during the War of 1812. Legend has it that Blackbeard hid in the Narrows area of the park, and interior waterways were used by Union and Confederate patrols during the Civil War. Built in part by an all African-American Civilian Conservation Corps in 1933-1940, the park is a National Natural Landmark and is listed in the National Register of Historic Places.

We were surprised that First Landing is Virginia’s most-visited state park, partly because it’s within the boundary of urban Virginia Beach. Despite the ease of access, the park sports 20 miles of trails and 1.5 miles of Chesapeake Bay beach frontage. It includes bald cypress swamps, lagoons and maritime forest, as well as rare plants and wildlife. It even offers cabins and yurts for overnights.

The Park website has this note:

The park is located beside a military training center that operates year-round in any weather at any time of day or night. Park guests may experience unusual sights and loudness. Nighttime training may last even beyond midnight. The activities pose no risk to park guests.

We did not notice this while at the Park, but it was different story in Virginia Beach proper. More on that shortly.

Norfolk Botanical Garden

The last major stop on our tour, these gardens, in many ways, turned out to be one of the highlights of our trip. The gardens are vast, with a huge variety of plants, many stunning flower plots, a nice tram ride around the major elements and generally a carefully planned and well-tended diverse display of plant life and some other features we did not expect.

The sculptures are made of materials dredged from the ocean, evidence of the catastrophic impact that humans are having by allowing plastic to enter the water.

The pictures speak for themselves. We highly recommend this place if you’re in the area.

Ocean View Pier [Comic Relief]

As our touring wound down, we were more than a little hungry. We somewhat randomly ended up at the Ocean View Pier . It was, to say the least, an interesting place. The food was surprisingly good but be aware that they allow smoking on the top deck.  These photos also speak for themselves.

Virginia Beach

Our story cannot end without a closing comment or two about Virginia Beach.

I mentioned the warning at First Landing about the military base. At our hotel in Virginia Beach, we were periodically stunned into silence by the truly ear-splitting roar of jet fighters coming and going. They apparently needed to attain altitude as fast as possible, resulting in deafeningly loud jet blasts that overwhelmed every other sound. A bit unreal. Not sure how the locals can stand it, but they do.

We were also “treated” to a crazy storm that swept down the length of the beach our last evening. The photo does not do it justice. It led to an evening of torrential downpours, defeating our plan to eat dinner outside and, well, it’s not a good story.

Overall, we saw many interesting sights on this trip, not including Virginia Beach itself, which was largely deserted, especially at night. We recommend the parts of it noted above. There is nothing more to say about that.

Happy Thanksgiving.

The End.

 

 

Dear Mayor Bowser

I am inspired to publish this now because I received your News message of October 15 entitled Accelerating Roadway Safety Projects. You stated a planned “acceleration of roadway safety improvements across DC,” driven by a wave of “traffic violence.” One of the primary solutions was the reduction of the default speed limit to 20 mph, although you recognized that speed is not the only problem – it’s also “distracted driving or a refusal to share the road.” Indeed.

One of the major “solutions” proposed is your request to DDOT “to move forward with a campaign to accelerate the construction of roadway safety improvement projects that will better protect pedestrians. This includes the installation of speed humps, stop signs, and right turn hardening measures. Starting this week, and continuing annually, DDOT will target 100 intersections that are within the District’s high-crash, high-injury corridors.”

Before going further, I suggest that solving the “traffic violence” problem is not achievable by placing obstacles in the path of already frustrated drivers. Speed humps may slow a car temporarily but if they lead to rapid acceleration after driving over one, the purpose seems defeated. Similarly, stop signs work if drivers stop and look before proceeding. If not, they can create more of a hazard as people in a hurry run through them. This happens every day all over the city.

While it may appear otherwise initially, rest assured that I am on your side. You have a difficult job for reasons too well known to reiterate here. Take what I offer as a good faith effort to help. As background, I moved to the District in December 2020, following three years in New York City. Before that, I lived in Northern Virginia (Falls Church, Reston, Alexandria) beginning in 1967, so I am no stranger to this area.

It is useful to begin with consideration of some general principles. The government is essentially a joint effort, funded with community money, to establish some rules within which a civilized society can function safely and fairly. This includes rules designed to establish order in what would otherwise be a chaotic, every-person-for-himself madhouse with high risks for everyone. Without such rules, the situation would resemble the Tragedy of the Commons in which each person would act in a manner designed to benefit him alone even though the result is destruction of the common good and losses for everyone. Today, DC roads resemble the Tragedy of the Commons because gross and serious violations of the laws, rules-of-the-road and common sense are rampant.

To be clear, I am not referring to “law and order” in the Republican/Tea Party/right-wing sense of the term, nor do I want to live in a “police state.”  The goal is a regime that, with reasonable compliance, benefits everyone – drivers, bicyclists, pedestrians. Everyone enjoys the benefits of more order, smoother traffic flow, less stress and more safety. There is an irreducible minimum of order that must be maintained to prevent chaos and avoidable harms.  DC appears to be well beyond that threshold.

For context, most days I drive two roundtrips from the West End (Washington Circle area) to the east end of town (10th & K), using L Street and returning west on I Street. When the traffic is unusually slow on I Street, I often move up to K Street for the return leg. Total roundtrip distance is exactly 4.1 miles. What occurs around me almost every day borders on unbelievable but it’s all true. A very select example includes:

Just this morning, we were confronted by a car traveling the wrong way on a one-way street (11th Street NW). The driver just kept coming, veering away at the last minute and turning the corner behind us. He was either completely oblivious or determined to place himself and us at risk to avoid turning around and driving in the proper direction.

Later, as I sat waiting for the light to change at Pennsylvania and 25th Street NW, two people, at least in their 30s, walked across Pennsylvania in reliance on the “walk” sign that was clearly lit. A car headed east on Pennsylvania ran the red lights facing west, passing between the pedestrians. Apparently, neither of them was aware of the danger – each had his nose buried in a cell phone and never looked up as the car raced between them.

A white Range Rover on K Street going west abruptly moved into the right lane in front of me with no signal, then a few blocks later, drove through a red light, turned left in front of the cars in the left lane and continued down the cross street, thereby also illegally crossing the service road on the other side.

A red truck in Washington Circle stopped at a red light, then drove thru it.

A driver ran three red lights in rapid succession in Dupont Circle.

It is routine to encounter drivers on M Street in Georgetown going 40 mph and more with impunity.

Illegal parking during rush hours is rampant. By taking up what would be traffic lanes, these parkers restrict the driving space for cars, leading to congestion, anxiety and angry, reckless driving behavior. Many sections of L Street are down to one lane in many places due to rush hour parking on sections already narrowed by construction sites. Many days a week the van in the photo below is illegally parked during evening rush in front of 1100 L Street NW:

Speaking of narrowed streets, the decision to block the left lane of the L Street/20th Street corner with pylons while allowing parking along the right side has reduced L Street at that intersection to one lane.

The result is that many drivers are surprised to find the left lane blocked and struggle at the last moment to enter the traffic flow in the one remaining lane of traffic. Conflict!

Worse yet, the complexity of the pylon arrangement misleads many drivers who then make a left turn from the remaining traffic lane, crossing the bike lane and the actual left turn lane, defeating the purpose of the pylon arrangement to provide additional protection to bicyclists.

The apparent absence of law enforcement in the city has led to other dangerous practices:

Pedestrians routinely slow-walking through intersections with nose buried in can’t-wait-to-be- read cell phone messages

Scooters/motorcyclists/bicyclists lane-splitting among cars in traffic lanes, zigzagging among the cars to get ahead

Scooters suddenly flying off the sidewalk at intersections to enter traffic

Red-light violations everywhere – by cars, trucks and bicyclists – often without even showing down

Left turns on K Street across multiple traffic lanes to enter the service road going the opposite way, in effect a risky U-turn, causing much sudden lane shifting

Turning from the wrong lane, usually with no signal – failure to use turn signals is rampant everywhere

The city’s installation of bus-only lanes, sometimes changing every block or two, has created additional parking space for trucks and cars alike. Buses for which the lanes were intended are forced to veer into car traffic lanes to get back. There is no apparent enforcement.

The most egregious and often-repeated violations of good driving practices are (1) failing to use the turn signal to indicate lane-changes/turns on the streets and in the roundabouts, and (2) turning from the center lane in either direction across the actual turning lane. These happen every day on my short roundtrip.

Then there is the matter of noise. As noted, I have lived in New York City and am no stranger to the realities of compacted urban living. There is, however, a difference between the unavoidable sounds of a city, cars and buses, aircraft overhead, etc. and the entirely preventable racket made by people who get some bizarre satisfaction from drawing attention to themselves by making unnecessary noise. These include motorcycles with punched-out mufflers, or no real mufflers at all, and cars with mufflers designed to make huge bursts of sound during acceleration and braking. These cars often display spoilers on the trunk and are in the style of “muscle cars.” The drivers who race the engines in traffic, do high-rpm “jack rabbit” starts and engine-assisted stops are trying to draw attention and they do, along with a large dose of irritation at the unnecessary noise they produce. Their behavior screams “look at me, look at me!” It is irritating and distracting.

The city has, apparently, determined to address these issues by trying to force traffic to slow down, as noted in the Mayor’s news message above. Reducing speed limits may seem an easy and appropriate defense, but speed limits that are too low likely cause more problems than they solve. Take a drive on the 40 mph GW Parkway, for example. Anyone trying to comply with that speed limit on the four-lane divided road will find other drivers speeding around them, frequently showing anger, impatience and dangerous driving. Average actual speeds in those areas are vastly higher whenever traffic volume permits and often even when it doesn’t.

It seems most drivers most of the time assess the risk of getting a ticket or being involved in or causing an accident as vastly lower than the costs of being a few minutes later at their destination. There is little question that this happens on DC streets every day all day everywhere. My casual but repeated observation of DC driving behavior suggests a widespread belief among drivers that there simply are no meaningful constraints on their behavior – no laws, no rules, no risk of being caught while endangering others.

Studies in the Netherlands support the idea that higher speeds, both generally and in relation to other cars, produce more crashes with greater damage to drivers and others affected. https://www.littlerock.gov/media/2484/the-relation-between-speed-and-crashes.pdf [the Institute for Road Safety Research] But US studies suggest that may not be the whole story and that “posted limits are not the cause of auto accidents – reckless driving is.” https://www.hg.org/legal-articles/the-effects-that-speed-limits-have-on-auto-accidents-30226

The last cited article states that

A method known as the “85th percentile” is used by traffic engineers to establish speed limits. This tactic operates under the assumption that most drivers will travel at a speed that is reasonable, sensible and comfortable to them on any given roadway, regardless of the posted limit. Speed limits are set at a number that separates the bottom 85% from the top 15%. For example, if the speeds of 100 vehicles are measured and 85 vehicles are traveling at 37 mph or less, the speed limit for the road could be set at 35 mph. [emphasis added]

A California study,

showed that higher speed limits set in 1995 and 1996 did not increase the rate of fatal or injury traffic crashes. In fact, actual travel speeds on roads with increased speed limits barely changed. People were already traveling faster than previous speed limits, and once speed limits were altered they generally did not speed faster than their comfort zone…. Although findings across the country are conflicting, they have shown that drivers are by-and-large practical and cautious. In essence, posted limits are not the cause of auto accidents – reckless driving is. [emphasis added]

At the risk of exposing my confirmation bias, those US observations are consistent with my day-to-day experience in DC. Lowering speed limits to levels that most drivers will find unreasonably constraining and putting speed bumps and stop signs in more places, will not change that. Such policies simply make more people into scofflaws, but they won’t likely change outcomes much if at all.

What then to do?

First, identify some of the main drivers of the problem and put resources against them. These would certainly include illegal parking in rush hour and in places where such parking materially increases congestion and conflict. The return on investment to DC from a well-managed team of “meter monitors would likely be very high.

Second, hire, train and deploy small teams to monitor driver behavior on problematic streets and intersections. Take videos of excessively dangerous practices and have another team member stop the car and issue tickets. This is not much more complicated than fielding teams of police to use radar and then flag down speeders. Observation of vehicles in the “circles” alone would likely more than pay for the costs of the teams.

Third, use the email addresses of DC-licensed drivers to remind them of certain rules-of-the-road. Explain in stark terms that certain behaviors will no longer be tolerated and that if stopped after being notified, the consequences will be serious.

I do not suggest these steps will solve all the problems. Even a 25 percent reduction in aberrant driving would be a worthy achievement and city revenues would increase significantly.

As for noise, the solutions are similar. There is no reason that the city should put up with people who deliberately make noise just to attract attention. Horn honking by automobiles (and frequently by impatient bus drivers) should be outlawed unless essential in an emergency. You get what you tolerate. DC has a Noise Ordinance.

Section 20-2700 of the DC Municipal Regulations states,

It is the declared public policy of the District that every person is entitled to ambient noise levels that are not detrimental to life to life, health, and enjoyment of his or her property. It is hereby declared that excessive or unnecessary noises within the District are a menace to the welfare and prosperity of the residents and businesses of the District. It is the declared public policy of the District to reduce the ambient noise level in the District to promote public health, safety, welfare, and the peace and quiet of the inhabitants of the District, and to facilitate the enjoyment of the natural attraction of the District.

This regulation reflects a serious quality-of-life problem in the city. Enforce it.

The cars in question usually are Mustangs or sports cars/muscle cars that look like them, often fitted with a rear spoiler. The noise they emit is usually coincident with moving at high speed through crowded streets in places like Georgetown’s M Street and less-crowded (at least now) thoroughfares like Pennsylvania Avenue. Even casual observation by enforcement would readily identify locations where deliberate noise violations, and often related dangerous driving, occur daily. This past Sunday I observed a motorcyclist riding twice through the same Georgetown neighborhood gunning his unmuffled engine for no purpose other than making noise.

In addition to the obvious benefits to safety and good order, active enforcement of traffic safety and noise control would also benefit the city’s finances. The cost of a reasonably trained force of meter monitors, traffic monitoring teams (all of whom do not have to be police officers) focused on serious violations and repeated noise ordinance violations would contribute significant revenue to fund the city’s other obligations. Everyone wins.

 

 

 

Media Bias – Who Are the Victims?

“Conservatives,” or more accurately Trumpist sycophants, complain a lot about “media bias,” claiming they are being “censored” and otherwise discriminated against. They do this even though FOX “News,” OAN, Newsmax, Breitbart and others devote virtually their entire waking moments to spewing false and/or distorted information about elections, COVID-19 and other important public subjects, basically hewing to the Donald Trump fantasy line of the day.

A few days ago I was hunting online to determine how to watch President Biden’s speech regarding the new federal COVID—19 policy. I turned to Safari, the primary Mac search engine (I prefer Google but there are indications that it does not work well with the latest Apple OS) [Note for the record my sophisticated use of computer terminology – search engine, OS – some days I amaze myself]

I typed “time of Biden’s speech today.” And this is what I got.

I’m pretty sure this does not happen by random accident. I searched for specific news about President Biden and got a bunch of right-wing blather thrown in my face by Yahoo.

My curiosity piqued by this unexpected outcome, I did some digging. I turned to … search engines. Turns out Yahoo is owned by Verizon Communications. But wait, Yahoo is actually Microsoft’s Bing search engine. The plot thickens. Already, I know more about this than I think I want to know. But I plowed ahead.

I “learned” that Google, the search engine associated with the Chrome search engine, with a market share of 92+%, is bigger than all the other search engines combined. https://bit.ly/3C00spd Second in size is … Bing, with 8% share. The site cited above notes, “Unlike Google, Bing’s homepage always features a stunning image and news stories.” Hhmh … I can’t wrap my mind around the idea that photos of Dan Bongino and Marsha Blackburn are “stunning” except in the sense of “mind numbing.”

That aside, we must remember that “Google also powers other search engines – including Ask, which is the sixthlargest search engine in the world” and that Yahoo!’s search engine is really Bing and that Yahoo, as search engine, is the fourth largest search engine in the world. After that, the others listed on the ranking site are mostly country-specific with names like Baidu, Yandex, DuckDuckGo, Naver, Seznam, Ecosia (Bing again) and AOL (hahahahaha -AOL, yes, really, AOL).

ll this brings to mind the old Abbott & Costello routine, Who’s on First,” which as a very young child I thought was pretty funny. It now has its own Wikipedia page, https://bit.ly/2V7PWM2, and … well, enough about that. As applied to search engines, the Who’s on First is not very funny.

In the case of search engines, the answer seems to be Google but it’s hard to know who is actually providing you with search information at any one time. In the end, I suspect the real answer is that all the information you get from Internet searches is controlled by three or four people, about whom little is known except by doing Internet searches they control. You see the problem.

Frankly, madam, I don’t give much of a damn about these people. What I care about is the possibility that, contrary to what the Trumpists are claiming, the truth, yet again, is the opposite – that a nefarious process is under way in which I ask for information about the President of the United States and get promotional garbage about/from right-wing fools.

We are all, mostly, now aware of some of the principles of behavioral economics that emphasize how the order and manner of information presentation can control what we think. At the least, the Yahoo response to my query created cognitive dissonance when I realized what had happened (it might be worse if this occurred without my recognizing it!). Cognitive dissonance is explained this way by the folks at Psychology Today:

The theory of cognitive dissonance proposes that people are averse to inconsistencies within their own minds. It offers one explanation for why people sometimes make an effort to adjust their thinking when their own thoughts, words, or behaviors seem to clash with each other.

When one learns new information that challenges a deeply held belief, for example, or acts in a way that seems to undercut a favorable self-image, that person may feel motivated to somehow resolve the negative feeling that results—to restore cognitive consonance. Though a person may not always resolve cognitive dissonance, the response to it may range from ignoring the source of it to changing one’s beliefs or behavior to eliminate the conflict. [https://bit.ly/3C0QeVK]

Given that, for example, Bing reportedly gets 1.3 billion visits per month, you wouldn’t have to succeed at altering thinking patterns of a large share to affect a huge number of people.

To be clear, I am not advocating content control, which would create a multitude of practical and legal problems. But if my experience with my Biden speech search is a frequent occurrence, there is cause for (1) alarm and (2) some form of investigation/exposure, including ultimately some form of mandatory disclosure/warnings about the practices being used to deliver information. Yes, yes, I get that there are First Amendment issues there too, but it is unclear to me whether the issue is being examined outside the near-hysterical drumbeat of right-wing whining about censorship (for which little to no evidence appears to exist).

The termination of Donald Trump’s access to Twitter and Facebook was based upon blatant and repeated violations of the Terms of Service. Trump’s posts involved demonstrable lies and misinformation about matters of vital public importance. He had many opportunities to stop but, if anything, he escalated his misconduct with his continuing false claims about election fraud.

The major Internet platforms are, in my opinion, making a huge mistake with their cavalier approach to Terms of Service and enforcement. I understand that at their scale of operations, there is no simple solution. But to understand what is being done, a process of analysis of how the systems could be improved must begin, leading ultimately to public pressure for positive change. This is an essential process for the preservation of democracy in this country. Just imagine what would happen if control of one of these behemoths were to fall into the wrong hands. Indeed, it may have already happened.

Chump Play in Philadelphia

I confess I’m still bothered by the scene in 2012 when Jason Werth, playing outfield for the Washington Nationals,  broke his wrist on a diving catch in a game against the Philadelphia Phillies and the Philadelphia crowd jeered him. There seems to be something about Philadelphia.

Last night, 3-time Cy Young Award winner Max Scherzer, fresh off an injury of his own, was pitching against the Phillies, now managed by former Yankees manager Joe Girardi. Because of renewed concerns in major league baseball about pitchers using illegal substances to get better or different spins on pitches, it was apparently thought appropriate for the umpires to check Max. Not once, not twice, but three times –after the first inning, after the third inning and then, unbelievably, in the middle of the fourth inning. Scherzer was upset to have his inning interrupted and, of course, nothing amiss was discovered. https://atmlb.com/3gRbxR6

This fourth check was apparently instigated by Girardi who, after Max struck out the final batter of the inning, came out of the dugout and began challenging Scherzer to meet him on the field for, presumably, a physical altercation that would, almost certainly, have resulted in Max being ejected and both dugouts would have engaged in the typical scrum. Instead, Max smartly remained in the dugout and, appropriately, Girardi was ejected.

Bob Carpenter, the Nationals announcer, was upset, also understandably, remarking that if this kind of gamesmanship is permitted, a manager could easily disrupt a possible no-hitter in the middle of the ninth inning and throw off a pitcher’s timing.

This was a chump move by Girardi. Major League Baseball needs to be careful here to assure that the concerns about substances on baseballs do not turn the game into a contest of repeated disruptions to damage pitcher performance. To be clear, I don’t think pitchers should be permitted to use anything other than the classic rosin bag that has been part of baseball for a very long time, but this should not lead to disrupting a pitcher in the middle of an inning as occurred in Philadelphia last night. Girardi coming out of the dugout to entice Scherzer to fight on the field was completely unacceptable, and he should be fined substantially for it. Just my opinion.