On the Precipice

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As we approach with bated breath the change of years on the calendar, the flow of events continues. The calendar is an artificial device invented by humans for counting time but time ticks forward regardless. So, here we are, about to celebrate another “year” lived and with hope, we hope, for a better future for everyone.

Given all that, it’s a good idea to review some things about the recent past that have a large bearing on the near future. For this, I turn to Heather Cox Richardson, brilliant Boston College historian to whose daily newsletter [Letters From an American] I have recently subscribed. I’m pretty sure she’s ok with my repeating her thoughts/information because each issue of the newsletter as a “Share” button at the end with options for email, Twitter, Facebook, and others. And we’re on the same team.

Here are some of HCR’s observations about the Biden administration’s performance:

  • The U.S. economy is stronger than that of any other country in the Group of Seven (G7)—a political and economic forum consisting of Canada, France, Germany, Italy, Japan, the United Kingdom, and the United States, along with the European Union—with higher growth and faster drops in inflation than any other G7 country over the past three years.
  • … growth accelerated to an astonishing 4.9% annualized rate in the third quarter of the year while inflation cooled from 6.4% to 3.1% and the economy added more than 2.5 million jobs.
  • The S&P 500, which is a stock market index of 500 of the largest companies listed on U.S. stock exchanges, ended this year up 24%. The Nasdaq composite index, which focuses on technology stocks, gained more than 40%.
  • … new businesses are starting up at a near-record pace.
  • … holiday sales this year were up 3.1%.
  • Unemployment has remained below 4% for 22 months in a row for the first time since the late 1960s.
  • … unionized workers in the automobile industry, UPS, Hollywood, railroads, and service industries [won] higher wages and other benefits.
  • Real wages have risen faster than inflation, especially for those at the bottom of the economy, whose wages have risen by 4.5% after inflation between 2020 and 2023.
  • the nation has had a record drop in homicides and other categories of violent crime. The only crime that has risen in 2023 is vehicle theft.

One must wonder why this kind of news does not get more attention from at least the so-called Mainstream Media. I get a vast array of news articles from a vast array of sources every day and you would think from the headlines/content of most of them, that the United States is on the brink of economic collapse. I have wondered in other posts why the Democratic Party’s message of progress/achievement/hope is not keeping up with the relentless drumbeat of lies/deceptions/deflections from Donald Trump and his acolytes. I will wonder.

The “new” science of Behavioral Economics [see Kahneman, Thinking Fast and Slow] teaches us about cognitive biases and the influence of salience on how we generalize our understandings of “reality.” To some significant degree, the repetition of the lies and distortions of Trump’s dark vision of America have led many people to believe we are on the precipice of collapse brought on by immigration, socialism, communism, abortion, and transgenderism, etc etc. The facts say otherwise.

That is not to say, obviously, that there are no problems. One of them, that gets too little attention, is our continued dependence on other countries, most notably but not solely China for many vital products, including critical microchips. See https://www.ted.com/talks/rob_toews_ai_s_single_point_of_failure/transcript?user_email_address=f286772a6726b8e7d0d1da2e91e7f0c9 There are many others but the scale of the United States, its history and its attachment to capitalism inevitably cause problems. For an honest explanation of some by a brilliant scholar who believes in capitalism, see Charles Lindblom’s The Market System (2001), as valid today as when written.

So, as we approach the “New Year,” there is much to celebrate and much about which to be concerned. Maybe this is nothing new, but it feels more ominous for reasons I have discussed in other recent posts. For now, just for today, I will desist from worrying and, with Heather Cox Richardson, accept that we have much to appreciate in our current political leadership, that we still have hope because the good guys outnumber the bad guys, and trust that the good guys will, as they have in past, do what must be done as Americans who still believe in our aspiration set out in the Preamble to the Constitution:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

HAPPY NEW YEAR!!

Many People Are Saying …

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.. that it would be a mistake to keep Trump off the ballot, that the people should decide so he and his cult supporters will not cry ‘foul’ when he loses the election by vote counting.

Does any rational person truly believe that if Trump remains on the ballot and loses the election by vote count (with, of course, the Electoral College factored in), he will abide the result he refused to accept in 2020? Is there any plausible basis to think that his cult supporters, many of whom claim he is their God’s messenger, will just say, “oh well, we fought the good fight and lost so let’s just move on?”

Bear in mind that Trump is arguing now that because he was still President on January 6, 2021, he cannot be held criminally accountable for anything he did as President. That’s right, his brief to the U.S. Court of Appeals for the District of Columbia Circuit, to which the U.S. Supreme Court referred the immunity case, asserts Trump is absolutely immune from anything he did while President. He is arguing that everything that happened regarding the 2020 election dispute was within the broad range of presidential responsibilities and actions that are absolutely immune from any form of prosecution. If he loses in the Circuit Court, he will make that same argument to the Supreme Court, playing for time, his normal strategy when called to account for his many crimes and civil offenses.

The Supreme Court’s decision to deny certiorari to the Special Prosecutor gives Trump more chances to achieve his goal of delay. His strategy is that if he can avoid a definitive finding of criminal guilt until he wins the 2024 election, he will then pardon himself. That act will, of course, be challenged and he’ll almost certainly lose the argument, well into his presidency. At that point he will simply say: “You’ve made your decision, now try to enforce it.”

I understand the argument that his supporters will not tolerate his exclusion from the ballot in 2024 because they are morally certain he committed no crimes and even if he did, so what? The people should decide who they want for President, not the courts.

That’s a nice idea if everyone were going to play by the same rules. But the reality is that Republicans are doing everything they can to suppress Democratic votes. Trump has already convoluted his lead in the Republican nomination process to claiming certain victory in 2024. What then can be expected if he loses? Another January 6 only much worse?

I have read the Trump brief before the D.C. Circuit in which he argues that everything he did, including particularly his actions leading to and on January 6, was an “official act” of the President and thus absolutely immune from question in the courts. Only Congress, his arguments goes, can punish criminal conduct by a President and only by impeachment. If found “not guilty” in impeachment, a certainty in any Senate with even a large minority of compliant Republicans, his argument is that it would represent Double Jeopardy to try that President for crimes in the courts.

I believe Trump is wrong yet again for several simple but fundamental reasons:

  • Trump’s “concerns” about the validity of the election had no factual basis, as proven by losing 60+ lawsuits;
  • Attempts to overturn the results by pressuring local election officials and submitting slates of bogus electors are not plausibly “official acts” within the responsibility of a president;
  • Impeachment is not a criminal procedure even if crimes are at the heart of the allegations; it is a political procedure, as conclusively evidenced by the process followed in Trump’s specific case (refusal to call witnesses, being just one example) and by the Constitutionally-limited penalty that could be applied if a guilty outcome were determined; therefore, Double Jeopardy does not attach to an impeachment,

Let’s examine that.

First, Trump argues, “The indictment alleges five types of conduct, all of which constitute quintessential Presidential acts.” The Trump brief lists those acts as:

(1) “tweets and other public statements about the outcome of the 2020 federal election, contending that the election was tainted by fraud and irregularities;”

(2) “Trump communicated with the Acting Attorney General and officials at the U.S. Department of Justice about investigating election crimes and possibly appointing a new Acting Attorney General;”

(3) “Trump communicated with state officials about the administration of the federal election and urged them to exercise their official responsibilities in accordance with extensive information that the election was tainted by fraud and irregularities;”

(4) “Trump communicated with the Vice President, in his legislative capacity as President of the Senate, and attempted to communicate with other members of Congress in order to urge them to exercise their official duties with respect to the certification of the federal election according to President Trump’s view of the national interest;” and

(5) “other individuals organized slates of alternate electors from seven States to provide a justification for the Vice President to exercise his official duties in the manner urged by President Trump.”

Those are fantasy versions of what actually transpired.

In reality, the indictment of Trump charges a different state of facts:

  • Conspiracy to Defraud the United States— “using dishonesty, fraud, and deceit to impair, obstruct, and defeat the lawful federal government function by which the results of the presidential election are collected, counted, and certified by the federal government;”

Trump “spread lies that there had been outcome-determinative fraud in the election and that he had actually won. These claims were false, and [Trump] knew that they were false.”

“The purpose of the conspiracy was to overturn the legitimate results of the 2020 presidential election by using knowingly false claims of election fraud to obstruct the federal government function by which those results are collected, counted, and certified.”

“The Defendant and co-conspirators used knowingly false claims of election fraud to get state legislators and election officials to subvert the legitimate election results and change electoral votes for the Defendant’s opponent, Joseph R. Biden, Jr., to electoral votes for the Defendant. That is, on the pretext of baseless fraud claims, the Defendant pushed officials in certain states to ignore the popular vote; disenfranchise millions of voters; dismiss legitimate electors; and ultimately, cause the ascertainment of and voting by illegitimate electors in favor of the Defendant.”

“The Defendant and co-conspirators organized fraudulent slates of electors in seven targeted states (Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin), attempting to mimic the procedures that the legitimate electors were supposed to follow under the Constitution and other federal and state laws.”

  • Conspiracy to Obstruct an Official Proceeding— “to corruptly obstruct and impede an official proceeding, that is, the certification of the electoral vote;”
  • Obstruction of, and Attempt to Obstruct, an Official Proceeding— “that is, the certification of the electoral vote;”
  • Conspiracy Against Rights— “to injure, oppress, threaten, and intimidate one or more persons in the free exercise and enjoyment of a right and privilege secured to them by the Constitution and laws of the United States—that is, the right to vote, and to have one’s vote counted.”

I will spare you the rest of the extensive details in the indictment. It comprises 45 pages of specific allegations of conduct, not just “speech” or “communications,” engaged in by Trump and his co-conspirators to overturn the election based on false and illegal allegations for which no evidence existed, and which had been rejected in some 60 lawsuits filed on Trump’s behalf.

The contention that the indictment is just about some tweets and some random communications about election fraud that were plainly “official acts” of the President acting as President is preposterous and false.

The Trump brief claims that “the text of the Constitution, through the Impeachment Judgment Clause, presupposes criminal immunity. That Clause dictates that a President may be criminally charged only if he is the “Party convicted” in an impeachment trial.” That Clause says:

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

Bear in mind that Trump simultaneously makes the argument that Impeachment is a criminal proceeding and thus once tried for asserted crimes and acquitted, Double Jeopardy attaches, and the President cannot be criminally prosecuted for those same crimes.

And so, ipse dixit, according to Trump, he gets a complete pass on his attempts to overturn the 2020 election. For the initiated, ipse dixit means: “He himself said it; a bare assertion resting on the authority of an individual.” http://tinyurl.com/yc3pdcrm In other words, Trump said it, so it’s true.

Fortunately for the country, that’s not how things work. It is elementary that in conspiracy, which is what Trump is charged with in three of the four indictment counts, these elements must be satisfied:

    • Two or more persons
    • intentionally make an agreement
    • to violate federal law or defraud the United states, and
    • commit some overt act in furtherance of the agreement.

The indictment charges and explains in gruesome detail the unlawful conspiracies in which Trump and others engaged to overturn the election result that Trump knowingly and falsely claimed had been stolen through fraud.

To take but one example (Georgia), Trump didn’t just “communicate” with “state officials about the administration of the federal election and urged them to exercise their official responsibilities in accordance with extensive information that the election was tainted by fraud and irregularities,” as claimed in his brief. No, he pressed them repeatedly to “find” enough votes to overturn the result of the election based on false claims of stolen votes. He was aided in all his efforts by others with whom he had reached an understanding (agreement) that they would continue fighting the election outcome regardless of the evidence (the facts). He continued doing this up to and through January 6, 2021.

Trump’s claim that his statements and conduct clearly fall within the “‘outer perimeter’ of [the President’s] official responsibility” is preposterous on its face. The brief effectively concedes that point in multiple places where it argues that “When the President “acts[s] in cases in which the executive possesses a constitutional or legal discretion, nothing can be more perfectly clear tan that [his] acts are only politically examinable.” Trump Brief at 29.

Similarly, Trump’s claim that “Because the Constitution specifies that only “the Party convicted” by trial in the Senate may be “liable and subject to Indictment, Trial, Judgment and Punishment,” … it presupposes that a President who is not convicted may not be subject to criminal prosecution,” citing as authority, naturally, the writings of Antonin Scalia offering this quote: “When a car dealer promises a low financing rate to ‘purchases with good credit,’ it is entirely clear that the rate is not available to purchasers with spotty credit.” Trump Brief at 26-27.

Trump’s argument might have some force if the impeachment process had the attributes of a criminal trial, but it doesn’t, as plainly demonstrated by the way in which his impeachment for his conduct before, on and after January 6 was handled.

Trump’s brief repeats the claim many times that his conduct covered by the indictment consisted entirely of “official acts”, but the brief nowhere explains how efforts to overturn an election based on false claims constitute “official acts” of the President. He doesn’t explain it because he can’t. The argument is ridiculous.

The same is true of the other major elements of Trump’s arguments, such as that.

The unbroken tradition of not exercising the supposed formidable power of criminally prosecuting a President for official acts—despite ample motive and opportunity to do so, over centuries—implies that the power does not exist.

That argument assumes the answer in the question: were Trump’s conspiracies “official acts?” Nowhere does the Trump brief establish or make a serious effort to establish that they were.

Calling Trump’s effort to subvert the election “core political speech and advocacy” does not make it so. Trump once said, ““I could stand in the middle of 5th Avenue and shoot somebody, and I wouldn’t lose voters.” Trump would likely argue that shooting the particular person was “speech” in defense of his presidency. This example illustrates the danger of granting unlimited immunity to someone who recognizes no legal, moral, or other limitations on his entitlements.

Trump further claims that the law under which he was indicted “dramatically stretches the language of vague criminal statutes in novel interpretations in an attempt to criminalize core political speech and advocacy.” And, he argues, this problem is compounded by the fact that “Criminal prosecution … requires only a single enterprising prosecutor and a compliant grand jury drawn from a tiny sector of America.”

He is wrong because in both cases EVIDENCE is required. Trump didn’t hesitate to seek the rulings of the judicial system when he believed that allegations alone could overturn the results of the presidential election in key states. When he lost 60 cases, he decided it was ok to turn to extra-judicial means to achieve his goal of remaining in office. There is nothing vague about criminal conspiracy statutes under which he is charged, and he’ll have a full opportunity, like every other American, to defend himself in court.

Piling one false premise on another does not improve his argument. His brief claims there were “widespread reports of election fraud” that he was entitled to address, but those reports were by people working in concert with Trump and he knew the claims were false.

The brief’s attempt to show that his “communications” with state election officials (Georgia comes to mind) were merely “taking steps to ensure the integrity of federal elections, such as communicating with state officials who play a critical role in administering those federal elections.” The tapes of his attempts to persuade George Secretary of State Raffensperger to change the vote count there make a laughingstock of this argument.

Even more absurd is Trump’s claim that “communicating with Members of Congress, including the Vice President in his capacity as President of the Senate, about their exercise of their official duties lies at the core of Presidential responsibility.” That’s now what Trump did. He demanded, repeatedly and in multiple venues and contrary to advice from multiple credible advisors, that the Vice President reject electoral votes lawfully and properly certified by the states. To argue that “organizing contingent slates of electors to support the President’s advocacy to the Vice President and Congress is likewise an official act” is preposterous on its face.

Trump’s claim that Double Jeopardy attaches to his acquittal in the second impeachment also fails because, among other things, the impeachment was not for the “same offense.” The fact that the Constitution expressly limits the punishment that can be imposed for a guilty finding conclusively demonstrates that the impeachment was not a criminal proceeding under a criminal statute. A subsequent prosecution would be required to impose the criminal penalties, according to the express wording of the impeachment clause.

The Circuit Court should make short work of Trump’s ludicrous arguments and send the case back where it will ultimately be decided anyway: the United States Supreme Court where we will learn, once and for all, whether this Court is still tethered to the Constitution or whether it has become, as many of us believe, a political arm of the Republican Party. This case should settle any doubts about that and then, the fate of democracy in America will be determined.

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Note for the New Year: the peril to our democracy grows with each passing day. If you believe the posts in this blog have any value, feel free to share links to them with your own social media networks.

Former Speaker Resigns House Seat to Seek Backbone

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I have just started reading the remarkable daily newsletter published by Heather Cox Richardson, professor of history at Boston College. You too can subscribe: https://heathercoxrichardson.substack.com/subscribe

Today’s post discusses the Colorado Supreme Court’s decision to bar Donald Trump from the state ballot because of his participation in the January 6 insurrection. Although I profoundly wish it were otherwise, I do not believe the U.S. Supreme Court will sustain that decision. I will explain why in another post shortly. But the HCR piece also reminded me that Kevin McCarthy, “the first speaker ever thrown out by his own party, today officially resigned his seat.”

McCarthy needs more free time to search for his backbone that went missing when he was on his knees trying to placate all sides, but ultimately just Donald Trump, on the questions raised by Trump’s efforts to overthrow the government. McCarthy’s persistent lying is recounted in gruesome detail in Liz Cheney’s remarkable memoir, Oath and Honor, A Memoir and a Warning. I am only halfway through her mesmerizing recounting of the days leading up to, through and beyond the January 6 attack on the Capitol but the pattern is clear, especially regarding McCarthy’s behavior. Most of the Republicans in Congress then do not come out much better. But McCarthy was one of their leaders.

To be clear, I abhor most of Liz Cheney’s political views (and those of her father, W’s former VP) but her courage in the face of Donald Trump’s criminality warrants our endorsement. It cost her a position as a Republican Party leader and ultimately her seat in Congress. As recounted in Wikipedia [https://en.wikipedia.org/wiki/Liz_Cheney], Cheney supported Trump’s second impeachment and rejected his claim that the 2020 election was stolen.

Slithering on his belly, a characteristic of invertebrates, Kevin McCarthy supported her removal from party leadership. The final straw came when Cheney accepted service as Vice Chair of the House Select Committee on the January 6 Attack. The Wyoming Republican Party, ever obedient to Trump, revoked her membership and she was defeated in the next primary by a Trump-endorsed robot.

We can never undo the past, but we can learn from it. Cheney’s book contains a multitude of chapter-and-verse revelations from inside the Congress throughout the period around January 6. This is a must-read book for anyone who wants to understand more deeply what transpired, who was responsible and all the ugly rest.

It’s good that McCarthy is gone. The ethical quotient of the Congress went up the moment he departed, though it remains to be seen who will replace him in the House. The mind boggles. We hope McCarthy finds his backbone though the odds seem long. It’s more likely he will hang around Mar-a-Lago licking Trump’s boots and hoping for a job in the next Trump administration.

You will recall that is what most of the Republicans did who opposed Trump’s nomination for the presidency in 2016. Even Mitt Romney bent the knee to Trump after the election. Lindsey Graham called Trump a “race-baiting xenophobic religious bigot” among many other things, concluding with “tell Donald Trump to go to hell.” http://tinyurl.com/yh59tz3b Then Graham, like McCarthy, became one of Trump’s strongest defenders.

Read Liz Cheney’s book and you will understand more deeply, if you don’t already, why Donald Trump must never set foot in the White House again. Also subscribe to Heather Cox Richardson’s newsletter for amazing daily insights into America’s descent into hell.

Republican Grinches – Get Over Yourselves

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You really must wonder how extreme Republican Trump worshippers can keep so many conflicted ideas in their minds at the same time.

The White House just had the Dorrance Dance Company perform there, doing a tap version of The Nutcracker. The First Lady Jill Biden posted a video of some of it on Instagram and, predictably, Fox News and the New York Post (the closest thing to a supermarket tabloid), went nuts. https://tinyurl.com/326drmsx For Trump acolytes who purport to oppose cancel culture, it’s interesting that they want to terminate Dorrance Dance because its website promotes racial justice. Fox and NYP prefer a police state like the one Donald Trump is promising to instigate if elected in 2024.

In keeping with Republican orthodoxy, Fox and NYP would prefer to continue spending billions and more to incarcerate “bad guys” rather than looking for constructive ways to reduce crime and improve social/economic equity in American society. It’s “just lock them all up” all the time for these people, all the while complaining about the cost of everything.

We saw the Dorrance Nutcracker performance at the Kennedy Center a few weeks ago. While I’m not generally that interested in tap dance as an art form (but loved the movie White Nights) and have only limited interest in the Nutcracker even as a classical ballet, the Dorrance show was amazing. The energy and creativity of the dancers were remarkable. They are plainly qualified to perform at the White House.

The show there was not about political or related issues. It was about art, and anyone with even a minimal artistic appreciation would see the glory in the Dorrance Company’s art. But not the Grinchy Fox News and New York Post. I’d wager they’d sing a very different tune if Dorrance’s website promoted “law and order” and “deport them all.” Will no one rid me of these troublesome negators of everything American?

What Records Does Donald Trump Hold?

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No doubt there are many, not least of which would be the most lies told per day/week/month/year before/during, and after his presidency. But perhaps the most important is the record for the number of felonies through formal indictments: 91. Before Trump, the average felony indictment count for U.S. presidents was zero. https://tinyurl.com/2p8tx8ak

I was surprised to learn that no U.S. president has ever been indicted for a felony prior to Trump. https://tinyurl.com/yd9rz8zy None. Others have been embroiled in scandals, of course. Republican icon Richard Nixon comes to mind. But actual felony indictments? Apparently, none, unless I’m misinformed by my usually reliable online research sources.

Even if a U.S. president was indicted in the distant past, I am confident that Trump, the apparent standard bearer for the Republican Party, the party of “law and order,” holds and will forever hold the personal record of being the most indicted criminal political leader in American history.

Will he also be the most indicted felon to hold a second term as leader of the once “free world?” Will he be the most convicted felon to hold a second term as leader of the once “free world?”

You decide. Only you can decide.

 

Humpty Dumpty Was President of U.S. 2017-2021

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Donald Trump, in one of his multitude of efforts through obfuscation and delay to avoid accountability for his many crimes against the nation and humanity, has stated what may be his most remarkable lie yet. In the litigation over whether he is disqualified from the Colorado ballot in 2024 due to his inciting the January 6 insurrection, Trump’s lawyers have declared that he never gave an oath to “support” the Constitution. https://tinyurl.com/3kdazbku

Here is text of the presidential swearing-in ceremony for Trump in 2017, and every other president:

I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.

Section 3 of the 14th Amendment, states that:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.

Trump’s Colorado filing states:

The framers excluded the office of President from Section Three purposefully. Section Three does not apply, because the presidency is not an office ‘under the United States,’ and President Trump did not take an oath ‘to support the Constitution of the United States.

From many decades of law practice in sometimes fraught circumstances, I am conscious of the pressure on lawyers to produce arguments that can strain credulity. They usually do this because they have nothing else, and the client demands they fight with anything and everything. So, they throw some legal slop at the wall and hope some of it sticks. I learned early, however, that such tactics usually do more harm than good and rarely convince experienced judges and neutral juries that an extreme position, lacking any basis in reason or precedent, should be embraced.

Here we have the former president of the United States, through his attorneys, flatly disavowing his oath of office. His lawyers are arguing, in effect, that “preserve, protect and defend” are not synonyms of “support.” In short, Trump is telling the Supreme Court,

Yes, the world saw me swear on a bible that I would preserve, protect, and defend the Constitution but that didn’t mean I support the Constitution. In fact, I don’t support the Constitution. I am opposed to the Constitution.

Now, imagine, if you can, that at his actual inauguration in 2017, Trump had placed his hand on the bible, Melania looking stricken behind him, and said to the world: “I decline to take the oath as prescribed. I don’t support the Constitution. I am opposed to the Constitution.” Imagine.

Trump’s lawyers are also arguing that the presidency is not an office “under the United States” and thus that the president is not an “officer of the United States,” as stated in the 14th Amendment, even though the president is the chief executive officer of the United States and is the repository of the “executive power” of the federal government as plainly stated in Clause 1 of Article II. By the way, this is the same Article II that Trump famously said conferred upon him the authority to “do whatever I want.” http://tinyurl.com/4jpuc2y9

The Trump position is right out of Alice in Wonderland:

When I use a word,” Humpty Dumpty said in rather a scornful tone, “it means what I choose it to mean – neither more nor less.

Alice’s retort, you may recall, was:

The question is … whether you can make words mean different things.

Trump would say, yes, of course, I’m Donald Trump and I can say ‘yes’ and mean ‘no.’ I can bow down before foreign dictators while claiming that I courageously stood up to them. I can say something with complete seriousness and later claim I was joking if people don’t like what I said. I’m like the governor in The Best Little Whorehouse in Texas who sings Side Step:

Ooh, I love to dance the little sidestep

Now they see me, now they don’t

I’ve come and gone

And ooh, I love to sweep around a wide step

Cut a little swath

And lead the people on!

Such foolishness may work in movies and childish fantasies but in the real world, Trump must be treated like an adult. He swore an oath before the world. That oath is prescribed by the Constitution. Trump may not be heard now to disavow his oath and its plain meaning. He is estopped, in the language of the law:

Estoppel is an equitable doctrine, a bar that prevents one from asserting a claim or right that contradicts what one has said or done before, or what has been legally established as true.[https://www.law.cornell.edu/wex/estoppel]

It is way past time that the courts brought the hammer down on Trump’s dissembling. Special Prosecutor Jack Smith has taken a major step in that direction by seeking immediate Supreme Court review of Trump’s preposterous claim that he is absolutely immune from prosecution because he was once President of the United States.

Trump’s legal strategy has always been predicated on delay, delay, and more delay. Smith, seeing the delay strategy at work again, is calling the question whether Trump can escape responsibility for his criminal conduct. Trump is asserting something akin to the divine right of kings. But there are no kings in this country. The fate of the nation hangs on the Supreme Court’s decision. The Humpty Dumpty defense must be rejected. If not, violence may result. In 1776 and again in 1787, we said, “no more kings.” It cannot be otherwise.

Closing Note:  It appears that the Judge in the DC case has stayed the proceedings until the Trump’s claim of absolute immunity for crimes committed while president is resolved by higher courts. While expedited briefing schedules have been established, it is entirely possible that the Supreme Court will deny the government’s petition for certiorari and dump the case back to the DC Circuit Court of Appeals. That court may be independently looking at Trump’s appeal anyway. Chaos reigns. More time will pass, and Trump will avoid the consequences of his preposterous legal position yet again. If so, we will move another giant step toward autocracy and the death of American democracy.

I will have more to say about this as soon as I can get through the multitude of decisions and pleadings being filed almost every day. The irony is that by committing so many crimes in so many jurisdictions, Trump has managed to create a scenario that will allow some courts to accede to his delay tactics. I will never understand why the judiciary has not taken central control of this situation rather than letting Trump’s cadre of lawyers making ludicrous arguments play the courts against each other. But that seems to be where we are.

No Way to Run a Government

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USAToday reports that Republican Senator Tuberville’s hold on over 400 military promotions (excluding four-star nominees) has ended. https://tinyurl.com/yeyvkxk5

The former football coach turned U.S. lawmaker in one of the world’s most important deliberative bodies has stymied the promotions for 10 months while trying to force the Pentagon to yield to his desire to stop the Pentagon from giving service members time off and pay for travel to have an abortion. The policy was put into effect after the Supreme Court overturned Roe v. Wade last year.

Thus, we have a government in which a single Senator, one of one hundred, can stymy the earned promotions of hundreds of military personnel vital to the nation’s defense because he, one Senator out of a hundred, objects to a Pentagon policy. Not coincidentally, note that the policy he wanted to thwart directly helps only women. And, of course,

The retired college football coach said he has no regrets blocking the nominations in protest of the Pentagon’s policy.

Of course he has no regrets. The Senator will now try to force the Pentagon to his will by having Republicans in the House, where they have a very slim majority, to force the Pentagon’s hand through the annual defense spending bill. After all, who needs defense when you are trying to impose your religious views on the entire government? Even Mitch McConnell apparently thought Tuberville was off base on this one, calling his action “dangerous.”

Among other preposterous and grossly irresponsible aspects of Tuberville’s blockade was that it led a group of senators to spend five hours in November on the Senate floor trying to secure individual votes on each promotion. Apparently, the great deliberative body had plenty of time on its hands, so no problem jumping through procedural hoops trying to overcome the obstinate resistance of one Senator.

This is no way to run a government. A single legislator, elected by 1,392,076 voters, representing 1.7 percent of the 80,821,083 total votes cast for Senators in 2020, is able to dictate policy to the entire government. I rest my case.

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.

The Fork in the Road to Democracy or Dictatorship

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An article published in The Hill suggests that Donald Trump’s promises that if re-elected he will engage in violent retribution against his enemies have inspired members of Congress to breach protocol and almost come to blows. Trump’s violent talk shows signs of taking over Congress  https://tinyurl.com/djbp5rss Those threats are, of course, among many other Trump/GOP assaults on the centuries-old system of American democratic government.

The article was inspired by a first-term Republican Senator from Oklahoma challenging the president of the Teamsters union to a fistfight in a hearing. The article also reports that Mitt Romney had much to say about the situation, noting the self-evident fact that “the Republican Party has become the party of Trump.” Romney, the master of understatement when it comes to criticizing looney Republicans, said the fight challenge was “clearly unfortunate.” Bold stuff from the man who in 2016 had said that Trump was “worthless”, a “fraud”, and that “he’s playing the American public for suckers: he gets a free ride to the White House and all we get is a lousy hat.” https://tinyurl.com/5dsvuy5x

Romney, you will recall, promptly bent the knee to president-elect Trump to seek a Cabinet post – which was, of course, denied. Trump knows how to treat “disloyal” people.

The article notes that “Trump’s use of violent rhetoric has since become almost routine,” accurate except for the “almost” modifier. Trump now engages in violent talk every day, using language identical to that made famous by Adolf Hitler and other dictators of the past. GOP Trump loyalists aren’t concerned. Their plan to steal the 2020 election and stay in power didn’t work as they imagined but the playbook remains valid for their purposes. The 2024 election is just another chance for them.

When a politician tells you he wants to “take over” your country, you should believe him. Trump aspires to fascist domination of the entire federal and state government apparatus. Republican politicians are so busy trying to avoid Trump’s wrath that they continue to make “both sides” false equivalencies and to equivocate about what is really happening. One example is Republican Senator Mike Rounds:

 It’s not the route that I’d like to see any of us go,” … I understand the reason why there was anger.

both individuals should have had a different approach to resolving it.

you’re seeing folks on both sides of the political spectrum being less respectful of other people.

I don’t know if he changed [norms] or simply responded to what he saw from other people. I think he sensed that the American people were allowing this to go on, and he’s taken advantage of it, but it’s not the direction that I think our country should go.

Powerful stuff, those Republicans speak. I’m sure you didn’t miss the “both sides” he snuck in there. Brings to mind Trump’s comment about the Nazi march in Charlottesville: “very fine people, on both sides.” The Post article goes on to cite other incidents including one in which former Speaker Kevin McCarthy (R-Calif.) was accused of elbowing another Republican representative in the back.

The First Amendment and the associated long history of American acceptance of “free speech” allow for this kind of violent rhetoric in the absence of an imminent threat of violence by the speaker or someone in league with him. That is what happened on January 6. We now learn from Mediaite.com that Republicans are cheering the release of previously withheld security footage from January 6 because they have somehow reached the conclusion that it shows police collusion and thus sustains their belief that the entire episode was an “inside job” by the “left.” Trump Supporters Cheer Release of Jan. 6 Footage Showing Trump Supporters Storming the Capitol  https://tinyurl.com/bderutcr

Republicans have learned nothing. And some of the January 6 Capitol-desecrators have recanted their professions of error and remorse that were used performatively for compliant judges to secure lesser sentences. https://www.bbc.com/news/world-us-canada-66169914

Many questions leap to mind. One of the most prominent is whether American corporations are going to continue playing deaf and dumb while spraying advertising dollars and PAC contributions on rightwing Republican candidates. Historically, American corporations, armed with “personhood” by the Supreme Court Citizens United case, have tried to have it both ways. Those days must end now. If the corporate community is indifferent to the fate of American democracy, consumers must show them the consequences by withholding purchases.

Donald Trump and his supporters have made clear their intention to destroy the American administrative state that accounts for massive amounts of economy-stimulating expenditures while assuring that the worst short-term instincts of capitalism are at least to some degree regulated in the public interest. Trump has, for example, made clear he will wreck the civil service system to assure that only workers completely loyal to him have federal jobs.

The United States is not alone in the world. Among numerous others, Russia, under the complete control of dictator Vladimir Putin, is waiting for an opportunity to strike a fatal blow against this country. Trump has previously subordinated himself to Putin in open displays of obsequious submission. Once Trump is back in power, Putin will have a free hand. At the end of the day, Putin, whom Trump openly admires, is no different than Josef Stalin and Adolf Hitler.

I had occasion recently to be reminded of some of James Madison and Alexander Hamilton’s more salient observations about government in the Federalist Papers that helped secure ratification of the Constitution. Some of the more relevant ones include:

The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.
― James Madison, Federalist Papers

It has been frequently remarked, that it seems to have been reserved to the people of this country to decide, by their conduct and example, the important question, whether societies of men are really capable or not, of establishing good government from reflection and choice, or whether they are forever destined to depend, for their political constitutions, on accident and force.
― Alexander Hamilton, The Federalist Papers

On the other hand, it will be equally forgotten that the vigor of government is essential to the security of liberty; that, in the contemplation of a sound and well-informed judgment, their interest can never be separated; and that a dangerous ambition more often lurks behind the specious mask of zeal for the rights of the people than under the forbidden appearance of zeal for the firmness and efficiency of government. History will teach us that the former has been found a much more certain road to the introduction of despotism than the latter, and that of those men who have overturned the liberties of republics, the greatest number have begun their career by paying an obsequious court to the people; commencing demagogues, and ending tyrants.

― Alexander Hamilton, The Federalist Papers

If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify.
― Alexander Hamilton, The Federalist Papers

To judge from the conduct of the opposite parties, we shall be led to conclude that they will mutually hope to evince the justness of their opinions, and to increase the number of their converts by the loudness of their declamations and the bitterness of their invectives. An enlightened zeal for the energy and efficiency of government will be stigmatized as the offspring of a temper fond of despotic power and hostile to the principles of liberty. An over-scrupulous jealousy of danger to the rights of the people, which is more commonly the fault of the head than of the heart, will be represented as mere pretense and artifice, the stale bait for popularity at the expense of the public good.
― Alexander Hamilton, The Federalist Papers

Gagging Trump

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This past Monday, I listened to two hours of the even longer oral arguments in United States v. Trump, regarding Judge Chutkan’s order limiting Trump’s attacks on Jack Smith, court staff and prospective witnesses in the criminal case against him. Several aspects of the argument stood out.

One was Trump’s lawyer’s desperate attempts to avoid conceding any limitation on what Trump can say, probably fearing that any concession of even the smallest point would swallow the entirety of his argument. His basic position was that Trump cannot be prevented from saying whatever he wants about anyone and everyone because of the First Amendment, and because he’s running for office, and because he’s Trump.

The court’s questioning, especially from Judge Millet, was detailed, incisive and brought back memories of law school classes in which the intellectual noose was tightened and then tightened some more as you tried to escape the traps laid by the professor. Trump’s lawyer kept trying to add facts to the hypothetical questions the judge asked, and she was not having it. It was somewhat embarrassing to witness and likely did not serve Trump well.

When counsel for the government addressed the court, however, the same questioning twisted itself into knots trying to determine whether there was any speech by Trump that could be prevented by the District Court order under review. The government was arguing that the First Amendment freedom of speech could be limited by the need to protect the integrity of the judicial process.

The judges struggled to find the limitations on that principle with questions like this: suppose Trump is in a debate during his campaign while the trial is underway, and his opponent raises testimony given in the trial. Can Trump say: that witness is a liar? A scoundrel?  A politically motivated anti-Trumper? Counsel for the government tried to argue, yes, that can be barred by court order to protect the integrity of the trial process but conceded that general statements about prejudice were acceptable. The court was not having it. Or so it seemed.

One thing you learn early in law school is that predicting how a court is going to rule by listening to questioning during oral argument is a fraught business. The media loves to predict outcomes but is often wrong — very wrong. Politico, to my surprise, published a reasonably balanced discussion of the oral arguments. https://tinyurl.com/2uy2v5e6

The key question comes down to how can “protection of the integrity of the judicial process” be accomplished without unconstitutionally restricting the speech of a defendant? It’s a difficult analysis.

In my view, the First Amendment privilege of the defendant must yield to the integrity of the judicial process. If the defendant is allowed to publicly attack witnesses and/or undermine the credibility of the prosecutors, the integrity of the process will be damaged, which is precisely why someone like Trump would and does almost daily engage in such attacks. Drawing the line between acceptable criticism, such as “the prosecution is politically motivated,” and impermissible attacks such as “the prosecutor is a thug, the witness is dishonest and prejudiced” is difficult.

But the court process has ways for these types of challenges to be brought before the court and decided, based on EVIDENCE, rather than permitting the defendant to undermine the entire process by intimidating lawyers and witnesses. Trump’s attorney made much of the challenges lawyers face in advising defendants regarding statements made about pending cases, some of which points seemed to resonate with the judges. One solution to that conundrum is to tell the client to stop talking about the case. If attacked, refer to any recorded testimony that arguably says otherwise. In short, stay factual and pass on the invective and threats.

But, of course, that’s not Trump’s style. Bullying and threatening are his standard repertoire. He’s not going to give it up unless the courts make it clear that the consequences for violating court orders designed to protect the judicial process will be met with severe consequences, including jail time. Meanwhile, since the gag order is on hold pending appellate court review, Trump will continue to be treated as a special class of one who is above the law that applies to everyone else.