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The January 6 Video Tapes

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Republicans are having hysterical conniption fits about the thousands of hours of January 6 security tapes recently released. They seem to have three main claims:

    1. The FBI infiltrated the mob that desecrated the Capitol [https://tinyurl.com/56ydb6hf], and
    2. The Capitol Police welcomed the mob and facilitated their entry into the Capitol, and
    3. The Capitol Police and others defending the Capitol were mean to the desecrators attacking them – they “beat them” bigly, according to, among others, Donald Trump

I have a few observations to offer those Republicans.

First, regarding the FBI, if it’s true that there were many FBI agents on the scene, wonderful. That means they expected trouble and when it came, they were on the scene doing their job. Now, to be sure, I don’t know whether the tapes actually establish that FBI agents were in the mob, or how the tapes could possibly do so, but the FBI certainly should have been there. The claim is there were at least 200, but all of this appears to be based on an unverified suspicion, without evidence, that FBI agents sent “ghost buses” full of agents dressed as Trump supporters, that the FBI “infiltrated” websites, social media accounts, and online chat groups “related to people who discussed “objections to COVID oppression.” Further, again without evidence,

when you track the text threads and the communications within those groups, and find the origins of suggestions of potential violence or an act of occupation of the Capitol on January 6, you’ll find that those messages were led by members of the groups and ended up to be the FBI agents that had infiltrated the group.

These are the ravings of Rep. Clay Higgins (R-La.) in a private “news” site under the name, American Military News, reporting on an interview Higgins gave to Newsmax, a cable news outlet so far right it fell off the flat earth. They ignore entirely the speech Trump gave on January 6 and his thoroughly documented refusal to call off the mob and stop the violence. Many of the convicted desecrators testified they believed they were simply answering the call and direction of their leader, Donald Trump, whose every word they believed.

Second, the Day of Rage video from the New York Times (https://tinyurl.com/242urbtu) and many others make clear that the attack started at the outer perimeter of the Capitol, that the mob attacked and overwhelmed the under-staffed and under-prepared Capitol Police before they approached, entered and desecrated the Capitol building.

Third, there are indications of Capitol Police, in most cases individuals facing massive numbers of violent intruders, failing to fight the mob inside the building. To the extent those officers failed to do their duty, they should be appropriately disciplined. But it’s likely that they decided resistance at that point was futile and that a more passive approach might be more effective than fighting a losing battle against an overwhelming and angry mob. This issue has, I believe, been addressed within the force, as it should be. It is no excuse for the behavior of the mob. The Republican claim amounts to, “the attack was the police’s fault because they didn’t fight back hard enough.”

Fourth, every member of the mob had the option at almost any time to turn around and walk away. The excuse of “I was swept up in the passion of the moment” is a child’s excuse. Any thinking adult could have seen the obvious: the mob was out of control, violence was occurring everywhere, police were being attacked (“support the Blue? Sure, but not today). Note also the conflict between “the Capitol Police welcomed the intruders” and “the Capitol Police violently beat the intruders.” I have commented before on the ability of Republicans to believe as simultaneously true two inconsistent concepts.

Fifth, the Republican hysteria fails to account for the role of the Proud Boys and other right-wing groups, many of whom were armed (Trump knew this and was furious that his instruction to remove the security apparatus to keep armed people away from his speech stage) and the massive evidence of what actually happened on January 6.

Sixth, and finally, the multitude of convictions resulting from trials and guilty pleas by mob participants so far (“More than 1,202 defendants have been charged in nearly all 50 states and the District of Columbia”), are conclusive evidence that many violent crimes were committed by the mob. You can see the latest data here: https://tinyurl.com/yry4jn2t

So, Republicans, you can continue whining about how the big bad police beat up on your band of fools or you could try, just once, facing reality. Trump incited an insurrection to overturn the 2020 election. Those who attacked the Capitol on his behalf deserve everything that is happening to them. And Trump belongs in prison. The End.

Shameless Corruption on the Supreme Court

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I have written about this before. See The Stench From the Bench, https://bit.ly/3Grp7qq, mainly about the conservative icon Antonin Scalia, Justice Alito’s Masquerade, https://bit.ly/3nVfWs7, and now, yet again, we have Clarence Thomas. https://bit.ly/3mgojhq

I begin with the observation that, in its most recent reporting about Clarence Thomas’ corruption, USAToday has tried to divert the issue into a problem for President Biden. Consider the headline: “Following furor over GOP-donor luxury trips, Joe Biden reckons with another Clarence Thomas scandal.” The first five paragraphs are about the mishandling of the Clarence Thomas confirmation hearings in 1991. After a brief reference to the latest revelations that Thomas has been taking “lavish trips from a billionaire Republican donor for more than 20 years without disclosing them, a possible violation of federal law,” the article returns to the confirmation hearings and the criticism of Biden for allowing the abuse of Anita Hill who testified to Thomas’s sexual harassment of her.

The author finally gets around to noting that then-Senator Biden voted against confirming Thomas but deflects quickly to reciting that Hill refused to accept Biden’s later expressions of regret. In a minor bit of irony, Thomas was also unforgiving.

In that regard, Thomas shares much with Donald Trump. He never forgives, never forgets, every slight against him. And he remained silent while his wife worked to overturn the 2020 election. The author states that Ginni Thomas tried to cover her tracks with this statement:

“You know, it was an emotional time,” she said in explaining the text messages to Meadows. “I’m sorry these texts exist.”

No doubt, she is sorry the messages exist. Not sorry that they were sent, mind you, just that they exist and were discovered. Like fingerprints on the murder weapon the killer always regrets. She’s still a Trumper, election conspiracist and avowed supporter of the January 6 insurrection. And Clarence Thomas: silent, just as he was about the trips. For 20 years. And no one noticed.

If you read my prior posts, you know that Thomas is not the first Justice of the High Court to enjoy this largesse. Scalia was a major taker. But, no worries, these “gifts” never had any bearing on the decisions of these jurists.

We now know that “Justice” Thomas has accepted extravagant gifts from a billionaire GOP megadonor for two decades and failed to report them. These weren’t just expensive ties or Godiva chocolates at Christmas. They included vacations on his benefactor’s superyacht and trips on his private jet as well as a week each summer at his pal’s private resort in the Adirondacks.

  In an act of extreme tone-deafness, reeking with irony, Thomas’s billionaire benefactor said, “he and his wife’s “hospitality” to Thomas and his wife “is no different from the hospitality we have extended to our many other dear friends.”

No doubt it was no different. I take care of you, and you take care of what I care about. That’s how political contributions tend to work. If it were otherwise, people with lots of money would not make big money contributions to politicians. There is no reason to think the usual rule did not apply to Thomas and his benefactor. Thomas has a lifetime appointment to the highest court in the land. That Thomas purportedly did not understand his higher obligation for full disclosure is beyond astonishing. I think he understood it perfectly but decided not to comply because he didn’t think anyone would force him to do so.

Thomas has said that he was advised by … unnamed people … that disclosure of his billionaire friend’s largesse was not required.

Not required? Even if true, and that seems absurd, Thomas had an obligation to avoid even the appearance of conflict. His decision stinks of dishonesty.

There is more. We learned recently that the same billionaire benefactor bought property from Thomas, “the first knowninstance of money flowing from the Republican megadonor to the Supreme Court justice. https://bit.ly/3MViaBY And these were not just any old real estate parcels Thomas happened to own. Thomas’s mother lived in the house on one of the parcels involved. Thomas’s benefactor.

Federal law (5 U.S. Code § 13104) requires the reporting of such a transaction. Curiously, shortly after the sale major improvements to the mother’s house were initiated by the buyer. According to the reporting,

Crow still owns Thomas’ mother’s home, which the now-94-year-old continued to live in through at least 2020, according to public records and social media. Two neighbors told ProPublica she still lives there.

Crow’s company pays the property taxes formerly paid by the Thomases.

Unsurprisingly, “Thomas did not respond to detailed questions” about the transactions.

“Harlan and Kathy Crow are among our dearest friends,” Thomas wrote. “As friends do, we have joined them on a number of family trips.” Crow told ProPublica that his gifts to Thomas were “no different from the hospitality we have extended to our many other dear friends.”

Interestingly, Thomas signed the sale paperwork personally, according to reporting. While his financial reports for the year of his Supreme Court appointment are very detailed but he failed to reveal at any time his trips at his benefactor’s expense nor the sale of the properties.

The latest sordid revelation about Clarence Thomas’s financial affairs, reported in the Washington Post, https://wapo.st/3UFfqup, indicates he has reported receipt of,

rental income totaling hundreds of thousands of dollars from a firm called Ginger, Ltd., Partnership. But that company — a Nebraska real estate firm launched in the 1980s by his wife and her relatives — has not existed since 2006. That year, the family real estate company was shut down and a separate firm was created, state incorporation records show. The similarly named firm assumed control of the shuttered company’s land leasing business, according to property records. Since that time, however, Thomas has continued to report income from the defunct company — between $50,000 and $100,000 annually in recent years — and there is no mention of the newer firm, Ginger Holdings, LLC, on the forms.

Thomas is well-practiced at evading discovery of his financial activities.

In 2011, after the watchdog group Common Cause raised red flags, Thomas updated years of his financial disclosure reports to include employment details for his wife, conservative activist Virginia “Ginni” Thomas. The justice said at the time that he had not understood the filing instructions. In 2020, he was forced to revise his disclosure forms after a different watchdog group found he had failed to report reimbursements for trips to speak at two law schools.

Sure. Thomas did not understand the filing instructions. Sure. And being a member of the Supreme Court, he doesn’t know how to get good advice about disclosure requirements. And there’s this:

Ginni Thomas earned more than $686,000 from the conservative Heritage Foundation from 2003 until 2007, according to the nonprofit’s tax forms. Clarence Thomas checked a box labeled “none” for his wife’s income during that period. He had done the same in 2008 and 2009 when she worked for conservative Hillsdale College.

Thomas acknowledged the error when he amended those filings in 2011. He wrote that the information had been “inadvertently omitted due to a misunderstanding of the filing instructions.”

In some years before those omissions, however, Thomas had correctly reported his wife’s employment….

Thomas also did not report reimbursement for transportation, meals and lodging while teaching at the universities of Kansas and Georgia in 2018. After the omission was flagged by the nonprofit Fix the Court, Thomas amended his filing for that year. He also amended his 2017 filing, on which he had left off similar reimbursements while teaching at Creighton Law School, his wife’s alma mater.

Until forced to do so by journalists digging for the truth, it seems clear “Justice” Thomas cannot be trusted to comply with financial disclosure laws. How then can he be trusted to make honest decisions on the Supreme Court?

The latest: CNN reports that Thomas will, yet again, amend his financial reports to disclose the real estate transactions. https://cnn.it/3KFgDNT

Too little, too late.

Thomas is a disgrace to the High Court and should just step down.

Georgia On My Mind

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Not the famous song written by Hoagy Carmichael and Stuart Gorrell in 1930, made a hit by Ray Charles in 1960 and by Willie Nelson. No, I’m thinking, and profoundly troubled, by the Senate race in Georgia that will be decided in a few days. The choices for Georgia voters are Rev. Raphael Warnock and Herschel Walker. Remarkably, even for these times, if you believe in poll data, the race is a practical dead heat. How is this possible, Georgia?

Walker’s “biography” on his campaign website is comprised of 530 total words, of which 319, or 60 percent, are related to athletics achievements. As great as those may be, they are not qualifications for serving as one of 100 in the United States Senate, considered by some as one of the great deliberative bodies in the world of politics. In an apparent effort to beef up his resume, Walker also notes that he “performed in the Fort Worth Ballet [one time], competed on The Apprentice, and won the Celebrity Cook-Off on the Food Network.” All of those are the gimmicky stunts of celebrities but provide nothing in qualifications for dealing with the serious business of a U.S. Senator. It is astonishing that a serious candidate for the U.S. Senate would offer such nonsense to prove his worth.

If Walker and Warnock share any other experiences, it is that both were raised in difficult circumstances in the backwaters of Georgia. But there the similarities end. Walker’s bio says little about his childhood, but he makes much of the fact that he suffers from Dissociative Identity Disorder (DID) due to childhood traumas. This condition is described by the Cleveland Clinic this way:

People with DID have two or more separate identities. These personalities control their behavior at different times. Each identity has its own personal history, traits, likes and dislikes. DID can lead to gaps in memory and hallucinations (believing something is real when it isn’t).

Dissociative identity disorder used to be called multiple personality disorder or split personality disorder.  [https://cle.clinic/3fyU7uw]

People afflicted with this disorder are certainly worthy of empathy and support, but whether they should serve in the Senate is another matter. Walker claims to have written a book about his life with DID, but it seems certain that the real writing was done by the others listed as co-authors of the book. Listening to Walker speak suggests he is incapable of writing the often-sophisticated text in Breaking Free: My Life with Dissociative Identity Disorder. [Note: I have only read excerpts from the book] It is admirable, if true, that Walker has devoted part of his adult life to helping others suffering with DID, but that is a slim reed on which to build a Senate-qualifying resume.

Some people may be offended by the idea that Walker’s mental health issues should be held against him in his quest for high political office. But those people would surely agree, I hope, that a person afflicted with, say, pathological lying disorder (see https://bit.ly/3DB1DNB; see also Donald J. Trump) should not be a U.S. Senator. But DID is far from the only issue with Hershel Walker so let’s not get too distracted (I am not referring to allegations related to abortions and related issues – I don’t know what the evidence shows and don’t consider it particularly relevant. The multiple lies/misrepresentations about achievements in his past are relevant, however, and very troubling).

Rev. Warnock grew up with a large family in public housing, had a mother who picked cotton and tobacco in the summer, yet managed to graduate from Morehouse College, earn a PhD and be ordained in the ministry. His brief biography notes that “For over 16 years, Senator Warnock has served as Senior Pastor at Ebenezer Baptist Church in Atlanta, the former pulpit of Reverend Dr. Martin Luther King, Jr. He is the youngest pastor selected to serve in that leadership role at the historic church.”

I have heard Warnock and can affirm that he is a gifted speaker, a man of serious thoughts and competent intellect. He was elected to the United States Senate in the January 5, 2021, in a special election runoff for the term ending January 3, 2023, to fill the vacancy caused by the resignation of Senator Johnny Isakson, a seat previously held by appointed (and disgraced) Senator Kelly Loeffler.

Senator Warnock serves on the Agriculture, Nutrition and Forestry Committee; Banking, Housing and Urban Affairs Committee; Commerce, Science and Transportation Committee, as well as the Special Committee on Aging and the Joint Economic Committee. In his short time in the Senate, Warnock has sponsored this legislation:

            Affordable Electric Vehicles for America Act of 2022

            Housing Market Transparency Act

            Rent Relief Act of 2022

            Building More Housing for Servicemembers Act

            Increasing Home Ownership for Servicemembers Act

            Capping Drug Costs for Seniors Act of 2022

            Affordable Insulin Now Act

            Farm to Base Food Security Act

Capping Prescription Costs Act of 2021

Improving Care for Veterans Act

Preventing Election Subversion Act of 2021

And many others.

Among the other stark differences with Walker, Warnock has experience in government. Walker has none, at any level. Walker was a gifted athlete, for sure. He has capitalized on his popularity as well as he can. Fine. Good for him. But can you imagine, after listening to him, that he could command the intellectual horsepower to deal with the array of complex legislative issues that Warnock has faced in his multiple committee assignments?

The question for Georgians is whether there is a remote possibility that Walker can function effectively in the cauldron that the Senate has become. Not a scintilla of evidence, suggests that he can. He will be manipulated by the Republican leadership that will see him as a willing supplicant for attention. He will embarrass himself and fail to represent Georgia in any meaningful way.

Worse yet, he will be unable to understand the complexity and seriousness of the issues that the Senate routinely faces. Anyone who has spent time, as I have, interacting with members of the Senate on complex legislative issues will know that this is no place for Herschel Walker. He cannot be successful for Georgia, and he cannot be successful for the United States. Senators, of course, represent their states, but they also bear allegiance to the country as a whole. Whatever Herschel Walker’s talents may be, he is completely unqualified to meet the challenges of being a U.S. Senator.

And, yes, I am aware that there are plenty of limited intellects serving in the Senate now. How will the United States be made better by adding another?

If you live in Georgia and haven’t voted yet, or have friends or family there who haven’t voted, you owe it to yourself and your country to vote on election day for the plainly superior candidate, the sitting Senator, Rev. Raphael Warnock. The fate of American democracy hangs on a precipice. Don’t contribute to its fall by electing Herschel Walker to the Senate.

Prosecution of Donald Trump

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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

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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.

Past the Point of No Return

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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?

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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

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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

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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)

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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.