Tag Archives: Cruz

Final Thoughts (Maybe) About the Republican “Performance” in the SOTU

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The New York Times published an interesting piece about the Republicans’ unprecedented outbursts during President Biden’s State of the Union address: Heckling of Biden Reflects a New, Coarser Normal for House G.O.P., https://nyti.ms/3Xq479c While it bore similarities to my own comments in The Barbarians Are Inside the Gate, it was a bit too abstract for my taste and replete with “both sides” implications, a now all-too-common trait of main stream media.

But what struck me most were the comments that gleefully recalled the moment when then-Speaker Nancy Pelosi ripped up Trump’s speech following one of his SOU addresses to Congress. In essence, those comments claimed that the obscene heckling of President Biden was justified by Pelosi’s previous conduct. What’s good for the goose, and all that. Hypocrisy, they say. You can’t have it both ways, they say.

I confess I didn’t read all the 666 comments the Times allowed before closing comments (a curious number, I note in passing – assess as you will), but of those I did read, not one noted the obvious difference between Pelosi’s demonstration of hostility to the then pretend president and the yelling and disruption that occurred during Biden’s speech.

I refer to the obvious fact that when Pelosi tore up Trump’s speech, Trump’s speech was over. He was finished talking. Should Pelosi have waited until Trump departed or until she was in the hall outside or called a press conference later to show her contempt? Maybe. But there is a fundamental difference between her post-speech demonstration and the multiple interruptions and crass behavior during the speech by members of the Republican Party. Her action did not disrupt Trump’s remarks, no matter how distasteful they were to her. The Republicans, on the other hand, did everything they could to disrupt and disorient the President. And they failed.

My final (maybe) observation: the writers at the New York Times, Washington Post and other newspapers that still claim to some degree of objectivity in matters political should stop calling these Republican Party louts “conservatives.” There is nothing “conservative” about most of them. They don’t just want less government; they want no government.

Just two days ago, Ted Cruz, officially the U.S. Senator from Texas, tweeted: “Abolish the IRS.” https://bit.ly/3Ih6PtCCruz is not the only Republican to advocate that. You may also recall that many other leading Republicans have advocated abolishing the Department of Education and other federal agencies, including Betsy DeVos, Trump’s Secretary of Education. Rep. Thomas Massie (R-Ky.) introduced a bill in early 2021 with co-sponsors including (unsurprisingly) Reps. Andy Biggs (R-Ariz.), Lauren Boebert (R-Colo.) and Matt Gaetz (R-Fla.), to do that very thing.

To be clear, I for one believe the United States Tax Code is a monstrosity. One fine day, I plan to write about it in some detail. But the idea that we can in one swoop “simplify the Code” and then eliminate the IRS while still effectively collecting enough revenue to pay for the U.S. Miliary, among many other federal services that help assure this country’s safety and prosperity, is blatantly stupid.

The National Taxpayer Advocate did a Microsoft Word count of the tax statutes and implementing IRS regulations in 2012 and came up with roughly 4 million words. At roughly 450 words per page, that works out to around 9,000 pages. The National Taxpayer Advocate also noted that the tax code changed 4,680 times from 2001 to 2012, an average of once per day.  https://bit.ly/3DYxWa8

That was ten years ago. Most likely the Code is substantially larger today. Much of it is designed, by Republican and Democratic administrations alike, to foster or discourage various forms of economic and other behavior. Changing it to a simpler system whose focus is mainly, if not solely, to fund the government is highly desirable in my view but it’s not something that can be done overnight in a sudden “simplification.” Advocates for that approach are not “conservatives. They are either anarchists or … well, this is a family blog, so I won’t go further.

Suffice to say, the complexities of the Code and its pervasive influence on the conduct of American businesses is such as only a prolonged and careful reexamination has any chance of success. But the Code’s very complexity and influence has spawned entire industries of tax lawyers, tax-specialist accountants, software companies and tax preparers, all of whom have a vested interest in keeping the complexity. And then there are the giant corporations that benefit from manipulating their operations and accounting to pay less tax than the might in another system.

To return to the main point, the Republican Party has become the Party of Grievance. Their appeal to the good old days, when white people ran everything and most things were thought to be cheaper and readily available at all times, those days are gone. Permanently. The Republican Party is the Party of the Past, a past that never really was and that was unsustainable. You may be able to turn back the clock, but you cannot undo time. It moves forward whether your clock, or your mind, keeps up or not. To believe in the past that the Republican Party is selling is to believe in a mirage, a false idol that leads you to your destruction.

The Republicans can yell and scream until the dogs come home. They have nothing constructive to offer the American people or the country. Joe Biden was too gracious, too composed and, in boxing them in on Medicare and Social Security, too clever for the screamers. They won’t learn anything from it. They’re out there every day justifying what they did because Nancy Pelosi hurt their feelings. Grievance and more grievance – the Republican Party’s true platform.

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.

Faux Election Integrity Fever Identified in Texas & Florida

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Like coronavirus, “Faux Election Integrity Fever” (hereafter “FEIF 2021”) moves quickly across state lines and attacks Republicans with a vengeance. In this case the evidence indicates that Georgia’s sudden post-election awakening to the realities of demographic change and resistance to racism (see https://bit.ly/3njQqbC and https://bit.ly/3aGt0rQ) has morphed into a collection of proposed voter suppression legislation in Texas and Florida.

The odd thing is that Trump won 2020 Texas handily and the state’s two Republican senators, Ted Cruz and John Cornyn, are among Trump’s most devoted sycophants. Cruz in particular is an avid member of the Sedition Caucus that voted to overturn the 2020 election and hand it to Donald Trump as, in effect, Dictator of the United States. So what is going on with the Texas variant to FEIF 2021?

Trump also won Florida — by more than 370,000 votes, split largeyn,ly by urban (Biden) and non-urban (Trump) preferences. Florida also sports two Trump shills in Senators Rubio and Rick Scott.

Disclosure: I am relying on published reports regarding the content of the legislation that, based on past experience, are highly reliable sources for such information. Texas GOP Targets Access for City Voters [print headline 4/25/21] https://nyti.ms/3gls1vc and Florida Legislature OKs Bill That Limits Voting By Mail, Ballot Drop Boxes, https://n.pr/2RgSnte 

The NY Times online report regarding Texas notes:

Republicans Target Voter Access in Texas Cities, but Not Rural Areas

In Houston, election officials found creative ways to help a struggling and diverse work force vote in a pandemic. Record turnout resulted. Now the G.O.P. is targeting those very measures.

The NPR report indicates many of the Florida provisions are similar to those recently adopted in Georgia.

Defenders of these bills argue that they include some provisions that make voting easier and more secure. The problem is that there are other provisions that either make voting harder or create the danger that Republicans, motivated as they have shown regarding the 2020 election to overturn important election losses, will use the tools contained in the legislation to simply override the voters’ choices in the future. This is not fantasy.

Given that (1) there is no credible evidence of voter fraud in any of the states where Trump challenges were mounted, (2) these states all had highly detailed vote regulatory laws in place before the new legislation, (3) these are states where 2020 turnout set records, creating (4) reasonable doubts that the Republican-controlled legislatures’ real goal is to enable even great turnout in the future. No, the most reasonable inference is that the huge turnouts in 2020 that resulted in Trump’s defeat have led not to sudden enthusiasm to increase Democratic opportunities going forward but have inspired renewed efforts to suppress Democratic voting in future elections.

These areas of focus are more than a little curious, considering certain other facts about Texas and Florida that one might think would be the real subjects of interest by the governing bodies of those states.

For example, Texas ranks 36th nationally in per-student education spending. While some conflicts exist about the exact amounts spent, https://bit.ly/2S8gyuz, the real losers in the squabbling over the state’s stinginess are the students. As for the mothers of those students,

While maternal mortality is decreasing in most countries, maternal death rates in the U.S. have been increasing and Texas is recognized as having the highest maternal death rate in the country. Texas’ own study on maternal deaths indicates that Texas’ rates have nearly doubled in recent years.

[https://www.texmed.org/MMM/]

U.S. News https://bit.ly/3noOXRc ranks Texas in these categories among the states:

Health Care – No. 31

Education – No.34

Opportunity – No. 39

Economic Opportunity – No. 40

Equality – No. 45

Crime & Corrections – 37

Natural Environment — 40

Population without Health Insurance

                   Texas 24.5 %

                  National Average 12.9 %

And that’s despite having the nation’s 9th largest economy and net inbound population growth, due, it is reported, to little regulation, low taxes and low labor costs.

The Florida story is similar. Despite its famously aged population, Florida ranks:

Health Care                25

Infrastructure            20

Opportunity               33

Crime & Corrections  26

Florida ranks 3rd in Education, driven, however, by the large higher education establishments. It’s only 16th in PreK-12.

You would think that with those standings, the governing parties would be focused on more than just voter suppression but apparently not.

Much of the Republican hullabaloo about voting has no factual or logical foundation. Putting aside the absence of meaningful evidence of voter fraud (all this legislation is directed at a non-existent problem), if you can file taxes online, then why not voting online?  Maybe we need to reconsider leaving all this to the states. Maybe, just maybe, the federal government could do a better job of securing voting systems under a well-crafted legislative plan.  Surely there is a way to do this safely. And, if not, then why not establish through federal legislation a uniform system of manual voting that affects everyone the same way across the country?

Beyond actual voting, why is there a concern that sending out absentee ballot applications, or real ballots, to everyone is a problem, given that voting is highly regulated with detailed checking and matching of ballots to registrations before votes are counted?  Why are drive-through voting sites a problem? In many places you can get a COVID vaccination at a drive-through. And millions routinely do bank transactions at drive-through windows. What is the problem, other than the fact that these practices make it easier for more people to vote?

Republican Titanic – “I don’t see no stinkin’ iceberg”

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Republican senators had an advantage over the Titanic command – the attack on the Capitol occurred in broad daylight and was captured on video by hundreds of gleeful participants. The attack, we now know, was planned by some participants in advance. The mob was summoned to Washington by Donald Trump, then the president of the United States, and directed to walk to the Capitol to stop the counting of Electoral College votes that would, at long last, end any hope Trump had of retaining power. It all happened in public view – Trump’s call to action, hours of hand-to-hand fighting with police, the mob hunting for members of Congress (particularly for Speaker Pelosi and Vice President Pence—“Hang Mike Pence,” they yelled) and ransacking the hallowed ground of American democracy. Calls for help went unanswered.

The desecration did not end on January 6. After reviewing the undeniable evidence, only seven Republican senators (Burr, Cassidy, Collins, Murkowski, Romney, Sasse and Toomey) had the courage, moral conviction, instinct for survival, call it what you will, to vote to convict Trump of the incitement to violence the entire world had witnessed. The other Republicans were fine with what happened, so much so that many of them literally ignored the proceedings in the Senate trial.

The media reported that Trump was “acquitted,” and while it’s a fine point, this was not an acquittal but just a failure to reach a super-majority for “guilty.” The total vote for “guilty” was 57, well past a simple majority and a historic first. In substance, Trump was found “guilty but not guilty.” In a supreme irony, the failure to achieve a two-thirds majority spared Trump by virtue of the very Constitution that he spat upon throughout his presidency.

Before the vote occurred, I was penning a blog post entitled “Senator Ted Cruz – Sophist in Wonderland,” addressing an op-ed Cruz wrote for, who else, Fox News. https://fxn.ws/2ZfvsQ0 The op-ed is remarkable for many reasons, but what stood out for me was the surprising conclusion that the Senate did indeed have jurisdiction to conduct a trial of a former president for in-office conduct. That conclusion, however, is followed by ““I believe the Senate should decline to exercise jurisdiction-and so I voted to dismiss this impeachment on jurisdictional grounds.” [boldface & italics mine] Thus, Cruz would have you believe that the Senate had jurisdiction but also did not have jurisdiction.

This style of reasoning is typical of the Republicans who have accepted Donald Trump as their liege lord. In their eyes, he can do no wrong. In the rare case where they admit he was wrong about something, they still support him. Absolute in their views about many things, so-called Republican “conservatives” apply total relativism for Trump’s conduct – relative to Satan himself. (Trump’s not so bad compared to the Beast himself, so what’s the problem?) Trump’s hallucinatory view of reality as totally malleable – essentially, “it is what I say it is” – is the Alice in Wonderland world the Republican Party has adopted as its operative principle. Beyond that, it has no principles. Power is all.

That much has been clear for the entirety of Trump’s presidency, at the very least since KellyAnne Conway uttered the infamous line about “alternative facts” two days after Trump’s inauguration. The January 6 insurrection that, reduced to its essence, was an attempt to overthrow the government by a sitting president, at least provided clarity about where the Republican Party stands.

Senators like Rand Paul can still appear on television and with a straight face argue that there are “two sides to everything.” But only someone with no moral foundation would say that. Even a craven individual like Mitch McConnell has admitted there is no evidence that the election was stolen from Trump. But, like Cruz, McConnell, moments after voting against the Senate majority, agreed that Trump had incited the violence for which McConnell had just voted he could not be held accountable. In Trumpland, reality really is whatever Trump says it is.

Now comes former Professor Alan Dershowitz in Newsweek, to offer cover for Republicans looking for a seemingly intellectually plausible basis to argue that Trump’s “incitement” was really protected speech under the First Amendment. https://bit.ly/3pnLWzY  [Disclosure: Dershowitz taught my 1L criminal law class at Harvard]

Dershowitz argues there is no difference between what Trump did and the actions of Representative Jamie Raskin’s father (Marcus Raskin) and others who, in the 1960’s, encouraged young men to resist the draft and endorsed  “the burning of draft cards, break-ins at draft boards and other unlawful actions to obstruct the war effort.” According to Dershowitz,

the defense was that the First Amendment protected Marcus’ advocacy of resistance to the draft, even if such resistance then took a form of unlawful actions by others….The jury acquitted Marcus, and the court of appeals reversed the convictions of the other defendants. They were all saved by a broad reading of the First Amendment.

While it’s remotely possible that my limited access to research has failed to find some relevant authorities, I am at loss to understand what Dershowitz is saying. The Court of Appeals case he refers to must be United States v Spock, 416 F.2d 165 (1st Cir. 1969). This was the appeal from the trial that acquitted Marcus of conspiracy but found the other four members of the “Spock Five” guilty. Contrary to the implication of Dershowitz’s description, the Court of Appeals in Spock did not reverse the convictions of the other four due to a “broad reading of the First Amendment.”

A couple of quotes from the opinion suffice to frame what was really going on:

The defendants here are not charged … with expressions of sympathy and moral support, but with conspiring to counsel, aid and abet Selective Service registrants to disobey various duties imposed by the Selective Service Act….

What we do determine is that the First Amendment does not, per se, require acquittal.

The central question addressed by the opinion was,

Whether … the evidence was sufficient to take the defendants to the jury.

There was, of course, an obvious and complex relationship between the First Amendment protections of speech and the adequacy of the evidence of illegal intent. The Court’s opinion expressly recognized the problem, but it also set out three different ways in which a speaker critical of the government could be found to have unlawfully conspired to violate the law, notwithstanding the First Amendment: (1) prior or subsequent “unambiguous statements;” (2) “subsequent commission of the very illegal act contemplated by the agreement;” or (3) “subsequent legal act if that act is ‘clearly undertaken for the specific purpose of rendering effective the later illegal activity which is advocated.”

The opinion, moreover, did not discuss Marcus Raskin at all because he was acquitted at trial. There is no way to know what the basis for a jury’s decision is, so Dershowitz cannot plausibly claim that Raskin was saved by a “broad reading of the First Amendment.”

The Court of Appeals did reverse the guilty findings of the other four defendants, as Dershowitz said. The Court reversed the trial court’s guilty finding for Spock because the evidence against him did not establish the “necessary intent to adhere to its [the charged conspiracy’s] illegal aspects.” Further, “Spock’s actions lacked the clear character necessary to imply specific intent under the First Amendment standard.”

While it’s certainly  true that the Court was applying the principle of strictest interpretation of law required by the First Amendment, as to which there was nothing surprising given the history of decisions regarding controversial speech, the actual decision as to Spock was based on evidentiary failures.

As to defendant Michael Ferber, at the time a draft-age student, the Court said,

the evidence did not warrant a finding that through other statements or conduct he joined the larger conspiracy for which the other defendants were prosecuted.

Rev. Coffin and Andrew Goodman had a different outcome entirely, but it was determined not by the First Amendment but by what the Court of Appeals determined, rather easily, was a fundamental error by the trial judge in posing questions to the jury designed to elicit “specific findings” of separate elements of the crimes charged, if they had reached a guilty verdict. That approach, condemned rather universally by precedent, ran afoul of the independence accorded to juries under American law. Juries, in other words, are free in criminal cases to do what they will; the Court of Appeals wrote:

To ask the jury special questions might be said to infringe on its power to deliberate free from legal fetters; on its power to arrive at a general verdict without having to support it by reasons or by a report of its deliberations; and on its power to follow or not to follow the instructions of the court. Moreover, any abridgement or modification of this institution would partly restrict its historic function, that of tempering rules of law by common sense brought to bear upon the facts of a specific case…

Uppermost … is the principle that the jury, as the conscience of the community, must be permitted to look at more than logic…. If it were otherwise there would be no more reason why a verdict should not be directed against a defendant in a criminal case than in a civil one. The constitutional guarantees of due process and trial by jury require that a criminal defendant be afforded the full protection of a jury unfettered, directly or indirectly….

Here, whereas, as we have pointed out, some defendants could be found to have exceeded the bounds of free speech, the issue was peculiarly one to which a community standard or conscience was, in the jury’s discretion, to be applied.

The Court thus reversed the trial court as to Coffin and Goodman and ordered new trials, leaving open the possibility that a properly instructed jury could convict them.

Thereafter, the government dropped the charges, ending the case.

Undeterred by those realities, Dershowitz goes on to expand his view of Trump’s innocence with this:

Several years later, Marcus [Raskin] was once again protected by a broad reading of the First Amendment, when he served as an intermediary between Daniel Ellsberg, who unlawfully stole the Pentagon Papers, and The New York Times, which published them despite their being classified. But for the First Amendment, Marcus would have been charged with conspiracy to publish classified material.

Unlike Dershowitz, I don’t claim to know what would have happened if there had been no First Amendment precedents, but I do know that the referenced case, New York Times Co. v. United States, 403 U.S. 713 (1971), involved the government’s attempt to stop publication of stolen classified documents. It dealt with “prior restraint” of the press and is remotely, if at all, relevant to the fate of Marcus Raskin.

Dershowitz then engages in a clever application of “whataboutism,” not to mention historical speculation and revisionism:

If Jamie Raskin’s current view of the First Amendment had prevailed back in the day, his father would likely have been convicted of two felonies. If President Trump incited his followers to commit unlawful conduct, so did Marcus.

In an all-too-familiar trope, Dershowitz goes on with this:

I would have thought that Jamie Raskin—in light of his history as a constitutional law professor, his family history under the First Amendment and his own protests against the 2016 election—would be leading the charge to protect the First Amendment. But no! He is leading the charge to compromise President Trump’s free speech rights—and thus the rights of all Americans to express controversial, even wrongheaded and provocative, views.

The English translation is “I thought someone as smart as you would not hold such crazy and disreputable views.” I really hate to see that, perhaps because it’s been used against me by people holding Trump-ish views. If someone disagrees about something, explain yourself, but don’t do the “how could someone as smart as you be so dumb” routine, especially following an incomplete, and arguably inaccurate recital of historical facts about which the author should know better (he claims to have been involved in the defense of the Spock case).

Returning to what Dershowitz labels as the desire of various people and groups to create a “Trump exception” to the First Amendment, Trump’s speech on January 6 does not stand alone. Indeed, in the Spock case, the Court of Appeals addressed in some detail not only the words spoken but other conduct that indicated participation (or not) in the charged conspiracy.

Trump actively invited his supporters to come to Washington on January 6 to “stop the steal,” a false claim that the election had been stolen from him. His public statements, through Twitter and otherwise, painted a false picture of what had happened. More than 60 court cases had heard his claims and rejected them. Some of his staunchest allies, including the Republican Majority Leader and his former Attorney General, had publicly acknowledged that the claim of stolen election was false.

Trump could say what he wanted, but there is no plausibility to the argument that he actually believed what he was saying to the mob. He lied repeatedly to them. Why? The only plausible reason was to stir them up, to play upon their anger and fear. He was supported in this by his attorney (who called for “trial by combat,” a statement Trump did not reject), and his sons addressing the mob that assembled at the “rally” in Washington.

It should be obvious, but speaking at a Trump rally is not like karaoke night at a bar where anyone who wants to perform can take the mic. Trump approved everything. He explicitly stated that the mob was going to walk down to the Capitol and that he would be with them, a crucially important element in the incitement component of the speech. That is a fact that his Republican supplicants would like to overlook but Trump’s assurance that he would accompany the mob to the Capitol is conclusive of his intent to direct them. Even before he finished talking, a large contingent of supporters headed for the Capitol Building, apparently led by the Proud Boys. Trump continued egging on the others who soon followed.

Thus, Trump’s call for action went well beyond merely voicing objection to government action. He explicitly directed the mob to go to the Capitol, leading them to believe he would be going with them. That Trump lied about going with them is irrelevant to the question whether his speech was simply a complaint about the government or a specific incitement to specific violent action that was foreseeable because it was called for by his choice of words, his continuing to lie about the election and by his subsequent failure to take action to resist the assault on the Capitol.

Indeed, the fact that no steps were taken by the Secret Service to move Trump to a secure location in the face of a brutal physical attack by thousands on the Capitol that lasted for several hours of hand-to-hand combat is itself strong evidence that Trump had directed the attack and intended for it to occur. He was perfectly content to sit back and watch his handiwork play out. Statements from White House sources, not credibly rebutted by evidence of contrary action, indicate that Trump was pleased with the violence and could not understand why others on White House staff were not equally moved by it.

A finding in those circumstances that Trump incited the attack on the Capitol does not create a “Trump exception” to the First Amendment. Dershowitz flatly states that the First Amendment recognizes no exception for actions by the president, but his assertion begs the question. Trump took an oath to defend the Constitution.

Dershowitz’s argument that Trump could not violate the law because he was “protesting the actions of other  branches of government” also fails to address the key issue: was the “protest” an active incitement to violence that the president sought to inspire and that he effectively directed to occur? Was he merely complaining out loud about what he thought, however absurdly, was a bad election? Or, was he effectively leading (from behind, but still leading) a physical attack to stop a constitutionally-mandated action from sealing his electoral fate?

In World War II, General Eisenhower did not physically assault the beaches at Normandy, but he was Supreme Commander of the Allied Expeditionary Forces. No person of reason would say that Eisenhower did not lead and direct the attack. Dershowitz’s categorical claim that Trump’s words were protected by the First Amendment would, if true, immunize any person, including a president, from organizing and directing from a distance a violent attempt to overthrow the government and capture or retain power. Whatever the First Amendment means, it doesn’t mean that. If it did, the framers would have created the seed from which the defeat of the democratic republic they risked so much to create could be easily destroyed. Dershowitz’s snarky attack on Jamie Raskin aside, that facile exercise in “whataboutism” is simply implausible.

Returning then to the metaphor I used at the outset of this post, if the democratic republic we know as the United States is going to survive, and we know that democracy is rare in world politics, the Republican Party must now face a reckoning unlike anything in its history. If the republic is fortunate, the GOP has doomed itself by aligning with a wannabe-dictator. An overwhelming majority of Americans who believe in the principle of rule by the people through a neutral system of laws will emerge from the horrors of January 6 with a stronger commitment to assure that such outrages are not repeated.

An agenda to achieve that end should include strong criminal prosecutions not only of the perpetrators of violence at the Capitol but of the leader. The spinelessness of the Republican senators who voted “not guilty” in the second impeachment should motivate true patriots to demand complete justice accomplished through the justice system without political involvement.

In addition to the offenses arising from January 6, we must not forget that the Mueller Report documented no fewer than ten instances of blatant obstruction of justice by Donald Trump. Those cases must be prosecuted so that no future president thinks he or she can follow Trump’s approach to governance with impunity. Don’t forget that Trump claimed Article II of the Constitution authorized him to “do whatever I want.”

As part of that process, but separate from it, the Department of Justice should reconsider its policy position that a sitting president cannot be indicted while in office. The “Republican gap” – you can’t indict while in office and you can’t try impeachments after leaving — must be closed definitively.

The federal government also needs to re-examine the states’ voter suppression tactics, which are rampant in the wake of the 2020 election. While I remain profoundly suspicious that Republican-dominated state governments will give good-faith and fair consideration to voter -expanding processes, a brief attempt should be made to find mutually-acceptable policies, to be ingrained in federal and state laws, that will put a permanent stop to the meddling that occurred in 2020 and long before. Nothing is more important to the survival of democracy than assuring that the will of the people is effectuated through elections at every level of government. The Biden administration should add this to its long list of priorities.

Finally, Americans who are committed to the continuation of government of, by and for the people must wake up, sign up, get informed and vote in every election. Failure to attend to the democratic opportunity will result in its being eliminated. We saw this in 2016 and almost again in 2020.

As for the Republican Titanic Party, Americans who believe in the principles once held by the GOP now must find a new political home. The GOP has been taken over by conspiracy theorists and violent extremists. They believe America can survive as an independent country even as it returns to an imaginary yesteryear in which a huge percentage of the population is treated like property, the country’s best opportunities are reserved for white people and we ignore issues like climate change and the need for international relationships based on shared interest and peace. They often espouse principles that would destroy the separation of church and state, a bedrock element of American freedom and independence.

Those Americans who, for better or worse, still genuinely believe that a country in the 21st century can prosper only with smaller government, less regulation of virulent capitalism and the other central tenets of traditional conservative values must find a new political home. If they choose to remain with the GOP, they are going to be swamped by Trumpers who have captured the machinery of its state parties (witness the multiple censures of Republicans who dared go against Trump during the election and after the January 6 attack). The old GOP is a dead duck, a backward-looking myth-based hallucination. Donald Trump, Jr. said it straight out on January 6: the GOP is now Trump’s party.

I hope that genuine conservatives will reconsider whether a modern 21st century country can prosper, or even survive, if it relies on Trump’s values. I hope they will join the Democratic Party in a future that accepts reality and welcomes change (which is inevitable), is inclusive (more interesting people in a diverse population) and works extra hard to ensure that its children are raised as independent thinkers (not replicas of their parents) who are more prepared to face the daunting challenges of 21st century life, open to new experiences, new people and hope. If those people come over, the old GOP will lose a huge element of its power and become a marginalized collection of white supremacists, misogynists and extremists with little to no influence on American political life going forward.

The Republican Unity Smokescreen

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In an astonishing but not surprising exercise in false-equivalency and what-about-ism, Republican Gary Abernathy argues in WAPO, https://wapo.st/3oT6n8t, that the price of unity going forward is to pretend Donald Trump is really Mother Theresa in a suit and that nothing serious happened in Washington on January 6. President Biden, Abernathy argues, should let bygones be “boys will be boys.” In effect, Biden should validate the “concerns” of right-wing/conservative conspiracy-meisters and extend an olive branch.

Abernathy begins his sanctimony by objecting to Biden’s comparing the election-fraud lie campaign of Trump-Hawley-Cruz (the-list-goes-on), to Nazi propaganda techniques. Why? Because, Abernathy says, marketers exaggerate and Democrats lie too, and let’s not forget the violence “instigated by left-leaning agitators” (read that as, “those violent Black people and antifa”), so what’s the problem? If Biden wants to unify the country, he should just flip the Trump Charlottesville playbook and go with “bad people on both sides.” Abernathy says Biden should “acknowledge that there’s plenty of blame to go around for a nation more on edge than at any time since the 1960s.”

In short, Abernathy, likely speaking for most of the Republican establishment now, argues, in effect, that the Trump-directed assault on the Capitol that was intended to stop the Congress from completing the election process to confirm Joe Biden, and thereby retain the defeated Donald Trump as a dictator/president, was equivalent to the resistance to the Vietnam War in the 1960s. He grudgingly admits that the second Trump impeachment is “admittedly more justifiable than the first one” but in referring to it as a “melodrama,” Abernathy uses sleight of words to take away what he purports to concede. Most thinking adults are now aware that the government itself was lying to the people about Vietnam, from the beginning and throughout. Does Abernathy really want to equate the two situations: Trump and Vietnam?

The ultimate effect of Abernathy’s “reasoning” is that the burden falls to President Biden to extend an olive branch to the gang of insurrectionists and traitors who tried to topple the government in the service of a corrupt and incompetent grifter. In short, Abernathy seems to believe that the burden for the insurrection falls on the shoulders of those who did not engage in insurrection. Remarkable.

The real beef here is obscured by that opening line, but Abernathy soon reveals his real grievance: that, finally, after four years of helping spread Trump/Republican disinformation and outright lies about our government and our country, the social media platforms decided it was time, with a few weeks left, to suspend the president’s access to a free megaphone for amplifying his mendacity to the public and his attempts to overthrow the government.

Abernathy’s real gripe thus seems to be the decision to cut off Trump from his endless broadcast of falsehoods through serial tweeting:

In the current environment, conservatives are rightfully alarmed at the prospect of crucial digital platforms being pulled out from under them in response to the support they express for a particular politician or idea. The tech giants are private entities claiming to be following their guidelines, not government agencies violating the First Amendment, but a president can use his bully pulpit to influence their actions.

There are those who say that Trump abused social media to incite violence. Others read the same tweets and disagree. More disturbing than anything Trump could tweet, though, is the fact that the highest elected officeholder in the land could have his voice virtually silenced by the whims of a handful of unelected Silicon Valley bullies. [boldface added by me]

This part of the diatribe is so disingenuous, it’s laughable. Digital platforms were not pulled out from conservatives merely because they supported a particular politician or “idea.” Trump expressed very few “ideas” in his constant tweeting [when did he actually work at the job of being president?]. It was not even the constant lying that fact-checkers found, without refutation, set a world record in outright false messages.

Those were “concerns” and the subjects of many complaints, but the digital media folks stuck with Trump/Republicans despite all that lying. It was when Trump decided to send a mob of violent supporters to interfere with, and threaten the physical safety of, the Congress that the platforms finally said, “too much is too much.” This was no “whim.” To call it that is to minimize the most serious assault on American democracy since the Civil War threatened to literally break the country.

Silliest of all is the argument that Trump has actually been silenced. The media still hangs on his every word, though he’s not talking so much these days as he sulks and prepares for the political anonymity and legal adversities that await him beginning in a few days. That’s on him. He has plenty of supportive media (FOX, OAN, Breitbart and others) ready to repeat and amplify every false message he still wants to convey.

Maybe the reality is that Trump finally realizes that the game is over, and he can’t win. He has finally, after a lifetime of being the boss, been told “no, and no means no. You lost. It’s over.” We’ll see about that. The nation’s capital city and the capitals of all 50 states are on high alert for days to come to the threat of violence by Trump’s deranged supporters who still claim, with no factual support whatsoever, that the election was stolen.

Abernathy’s grievances against the tech platforms are so profound that he has undertaken to write parts of President Biden’s inaugural address for him. For example, he proposes Biden say,

What we should not fall prey to is the temptation to silence the voices of millions of peaceful and patriotic Americans by eliminating their preferred platforms because of a few bad actors. That’s not who we are as Americans.

But “who we are as Americans,” if it has any meaning now, is certainly not the thousands of people who, at the direction of the president, refused to accept reality and instead used violence to try to change the outcome of an election and thereby disenfranchise more than 81 milli0n voters who elected Joe Biden and Kamala Harris. The “few bad actors” excuse went down Trump’s golden toilet with the videos of the Capitol assault and the deaths of five people, including a police officer, at the hands of screaming traitors to American values, acting on lies promoted by the president and multiple Republican members of Congress.

The “few bad actors” is just another variant of “fine people on both sides” and it’s not good enough, not even close. The voices of “millions of peaceful and patriotic Americans,” who were not present or represented by the insurrectionists at the Capitol, have not been silenced. They have full access to Twitter, Facebook and the rest to make such conservative arguments as they wish. Indeed, many of them continue to spew hate and conspiracy nonsense to this day. It’s actually quite difficult to be censured by the platforms, but, as we learned, even they have limits. As for Trump, well, just too bad about him. He made his choice and, finally, there were consequences. And, of course, there are other platforms where he can continue to spew lies, crazy conspiracy theories and grievances against anything and everything he and they believe is oppressing them.

The truth that Abernathy and the politicians he continues to support refuse to accept is that the election was not stolen. Continuing to argue otherwise based on fantasies lacking any basis in reality is not an American value that the incoming president should be focusing on right now.

Biden understands that he must immediately try to overcome the triple threat/shambles left behind by the Trump administration and its enablers: the pandemic, the crushed economy and the collapsing climate on which our very survival depends. Abernathy doesn’t want to face the horrible truth that Donald Trump’s reign as president has killed hundreds of thousands of Americans, wrecked the economy and set back our attempts to combat climate catastrophe perhaps beyond repair. THOSE are the priorities, not the continued whining and grievance of Trump’s political base.

Abernathy’s preferred version of Biden’s address also would contain this:

Biden could further make conservative Americans sit up and take notice by speaking their language, saying, “In the United States, we don’t ‘cancel’ people because their opinions and ideas diverge from what many of us might prefer. We don’t exile people for criticizing or questioning their government or even our democratic processes — both of which can be constantly fortified by our willingness to consider the voices of all Americans, not just those with whom we agree.

That is wrong on virtually every level. Abernathy is laying claim to the idea that everything is equal: lies, insane conspiracies, calls for violence – all are entitled to equal credit with the truth and reality. That is simply wrong. We cannot and should not use the government to suppress the expression of non-violent ideas, but, to use a time-worn but valid analogy, one may not cry “fire” in a darkened theatre when there is no fire and you’re just afraid of the dark. The First Amendment does not protect such speech, nor should it. And it doesn’t matter a wit that your fear of the dark is genuine.

Private communication platforms are not obligated to give equal voice to boldfaced lies and fantasies which are not the same or equivalent to positions/arguments about political philosophy. QAnon is not entitled to equal space on Twitter or Facebook. In the end, conservatives can choose to believe whatever they want to believe, including rejecting science and scientific method as valid means of determining what is true, but they don’t have the right to control privately-owned space for the purpose of undermining truth as a concept and dis-establishing the government.

A final point: Abernathy’s call for Biden to “embrace Americans across the political spectrum” was addressed repeatedly during the campaign. Biden said many times he would be president for all people, not just those who voted for him. That pledge stands, as Mr. Abernathy surely knows, but it is incredibly disingenuous, in my opinion, to try to wedge into that commitment an acceptance of the right-wing orthodoxy that truth and falsity as just two equal versions of one thing. They are opposites, not equivalents, and Joe Biden knows it. Someday, maybe, Republicans will awaken from their dreamworld and accept that truth as well.

 

Quo Vadis, Republican Party?

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You may recognize the Latin phrase, or not. It derives from “Domine, quo vadis? meaning Lord, where are you going?” and was assertedly spoken by Saint Peter who, fleeing persecution in Jerusalem, came upon the resurrected Jesus and made the inquiry, leading Jesus to tell Peter that he was returning to be crucified again. [source: e­­ncyclopedia.com https://bit.ly/38OcLIG] [Also a 1951 movie title]

I was reminded of this by a, typically, erudite and lengthy essay by Yale historian Timothy Snyder in today’s New York Times Magazine, entitled The American Abyss: Trump, the mob and what comes next. Snyder also wrote On Tyranny: Twenty Lessons from the Twentieth Century, a book that should be required reading for every American interested in the survival of our democracy.

A major premise of Snyder’s Times essay is that the Republican Party’s political establishment has two main branches. One, the gamers,

is concerned above all with gaming the system to maintain power, taking full advantage of constitutional obscurities, gerrymandering and dark money to win elections with a minority of motivated voters. They have no interest in the collapse of the peculiar form of representation that allows their minority party disproportionate control of government.

The main exponent of this group’s point of view is the former Senate Majority Leader, Mitch McConnell, of the failed state of Kentucky.

The other, even more craven group (my view, not necessarily Snyder’s) are the “breakers,” who “might actually break the system and have power without democracy.” That group is now led by Senators Josh Hawley and Ted Cruz.

Snyder then begins the analysis, noting that to some Republicans the hopeless quest to overturn the election was just political theater, but

for Congress to traduce its basic functions had a price. An elected institution that opposes elections is inviting its own overthrow. Members of Congress who sustained the president’s lie, despite the available and unambiguous evidence, betrayed their constitutional mission. Making his fictions the basis of congressional action gave them flesh. Now Trump could demand that senators and congressmen bow to his will. He could place personal responsibility upon Mike Pence ….

If that doesn’t lead you to immediately buy a Times subscription and also Snyder’s book, I don’t know about you….{I get no royalties; just trying to be helpful]

As noted, Snyder’s treatment is erudite and complex. My own view is more simplistic.

The principal distinguishing feature of our mish-mash American democratic republic with its squirrelly Constitution and three “co-equal” branches of government intended to mutually restrain each other, is that the people elect their leaders. If the leaders fail to perform as the voters think they expected, the voters can elect new leaders on the immutable schedule of elections. AND — this is critical — assuming a fair process, the loser accepts the loss and waits for the next election in the immutable schedule for another try. ALWAYS. The loser accepts the loss, moves on, reorganizes and so on.

If the acceptance of loss, a/k/a the peaceful transfer of power, were to be lost, the entire system, Constitution notwithstanding, would collapse and American democracy would be finished.

As noted, the essential premise of this scheme is “fair process,” and everyone knows that politics can be “rough and tumble,” “dirty,” and other unpleasantries, often in direct proportion to how much power is at stake. But “rough and tumble” or not, the process by which voting occurs must be accepted as fair, meaning each voter has a fair and equal opportunity to vote and to have her vote honestly counted.

Obviously, that goal is aspirational. We have, for example, gerrymandering which alters the “equal opportunity” element by rearranging the electorate to favor one party over another. Since both parties, in a floating tit-for-tat combat try to tilt the system in their favor when they can, the electoral system begins to resemble an exercise in mutually-assured-destruction, a/k/a MAD. And that doesn’t even account for the way in which the Electoral College system enhances the votes of smaller states or the way in which the allocation of legislative seats dilutes the votes of high-population states.

But those are features of the imperfect system that have been present for a very long time. At bottom, there remains, at least until now, the fundamental core principle that the loser will accept the loss and move on.

But, what if the process is not fair, in that the voting or the vote-counting is rigged in some way that favors one side? Why would the loser be expected to just accept defeat, an ill-gotten gain by an adversary with no recompense? Isn’t that exactly what Trump and his supporters have claimed?

No, it is not. The entire system by which the “truth” is determined in our society is based on arrangements provided in the Constitution. Thus, the taking of an oath to support the Constitution is an oath to accept those arrangements. The determination of “truth,” as close as we frail humans can come to its ascertainment, is made by a system of challenge-response-decision by independent courts which in turn have elaborate appeal arrangements so that erroneous decisions may be corrected before doing lasting harm. Like all human systems, the legal system is not perfect, but it is the closest we have come and is far better than a system in which appointed autocrats make all the decisions. And our systems have published “rules of engagement” that all parties must follow, so that the fight in a legal environment is as fair as it can be, assuming both sides have access to adequate representation.

Thus, our system includes the legal system as a fail-safe against faulty electoral process, as regards problems like obstruction of access to the polls, corrupt vote counting and the like.

Turning then to the 2020 presidential election, we first should recognize that the president began complaining of election rigging even before issue was joined with a chosen Democratic opponent. Moreover, through direct manipulation of the U.S. Postal Service, he tried to rig the election in his own favor, all the while complaining about what the opposition was up to. Aided by Republican governors, access to the ballot box was restricted by closing polling stations and other techniques of voter suppression.

Whatever one may say about social media and their manipulation by Trump and other politicians, those media also enabled the Democrats to call out the voter suppression as it was happening. So, it came to pass that the president, in sharply declining popularity as he downplayed the deadly coronavirus and was caught trying to pressure foreign governments to help undermine his opponent, lost the popular vote by more than 7 million votes, lost the key battleground states and lost the Electoral College vote. Joe Biden was declared the winner.

Trump fought back, screeching that the election had been stolen due to massive voter fraud, but only in the key battleground states he lost and, inexplicably, only regarding the presidential election but not the down-ballot races for supremely important seats such as that held by Majority Leader McConnell of Kentucky, who survived a challenge despite having done little or nothing for his constituents. Trump sent a team of lawyers into the field, filing lawsuit after lawsuit, more than 60 cases, many to be decided by judges he had appointed. Not knowing and not caring how the legal system worked, Trump apparently expected his appointees to simply award him victories. He, and his crack legal team, could not, however, overcome the lack of evidence, defined as credible information of specific facts supporting a legal claim. Such evidence simply did not exist. Trump’s case was actually damaged by trotting out “witnesses” who did not understand how vote counting worked in their precincts. Trump lost ALL but one insignificant decision, more than 60 defeats. Even his “house lawyer,” William Barr, putative Attorney General of the United States, concluded that Trump had lost the election fairly.

And still Trump cried “foul,” arguing that he had won the election by a landslide, that the fix was in.  His mendacity was exposed yet again by a tape of his attempt to induce the Georgia Secretary of State to “find” a collection of votes just one more than Trump needed to reverse Biden’s win in Georgia. Never mind that for his claims to be true, tens of thousands of people would have had to conspire to tilt the vote count, a vast conspiracy that both theory and practice informs us could not happen without someone spilling the beans. There were no beans to spill.

And still Trump cried “foul.” And still his Republican enablers in Congress remained silent or engaged in full-throated support not only of Trump’s right to test the legal waters, but in support of the proposition that the election had been “stolen.” Stolen by means and persons unknown, but stolen nonetheless.

That “situation,” created by Trump’s own irrational insistence and domination of his political party, led to the January 6 assault on the Capitol Building in which a violent mob of Trump supporters tried to prevent the final certification of the Electoral College vote count. Trump watched on TV, apparently quite happy with his handiwork. He was a hero to his fans and within arms’ reach of getting the second term he claimed to deserve.

The attack failed, a perfect metaphor for Trump’s presidency.

Trump’s term ends at noon on January 20, just three days away. The nation’s capital city is an armed military camp awaiting a predicted resumption of the January 6 attack in an attempt to overthrow the government and install Trump as dictator.

Time will tell. But what is clear to me at least is that Donald Trump has violated the fundamental and central premise of democratic government. He has rejected his electoral loss and is trying to force himself on the country for a second term.

This then is the root of the tree of ultimate political evil. Unwillingness to accept the loss and move on after being heard more than 60 times in court, and despite multiple audits and recounts, is a  bridge too far, an undoing of norms, conventions and legal/Constitutional principles from which there is no recovery for forgiveness. In this effort, Trump is supported by multiple elected representatives of the people in the national legislature.

For those reasons alone, though there are many others, Trump should not only be convicted in his second impeachment, but he must also be prevented from holding public office again. If you don’t play by the rules, you must not be allowed on the field. The same is true for the other politicians who continue to falsify, fabricate and bloviate regarding the election result. They — Hawley, Cruz, Johnson and the others who voted to reject the final count even after the January 6 coup attempt —  must be removed from office and banned from holding another.

Have Progressives Been Unfair to Donald Trump?

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On Facebook and other places I have seen many “conservatives” argue that “progressives,” or “ libtards” or “haters” more pejoratively, have been unfair to the “duly elected” president from some unspecified time before he was elected to the present. The argument, they seem to offer, is that Trump is president of all the people and thus deserves everyone’s 100% devotion. They believe Trump is acting in good faith, doing his best in the face of massive resistance at every turn and, as Trump himself proclaims on a daily, sometimes hourly basis, is being treated in a fundamentally unfair way.

I have reflected on this at some length and done some research which, in the interest of comity and intellectual honesty, I present herewith. Let’s begin at the beginning — with people who know Trump best.

On March 3, 2016, Mitt Romney spoke about Trump, calling his promises worthless, labeling him a “fraud.” https://nyti.ms/2JkGFH6 The speech listed a long list of failed business ventures bearing Trump’s name. He noted that on foreign policy Trump was “very not smart.” Dishonesty is Trump’s hallmark, Romney explained. Many Republicans were unhappy with Romney’s comments, but Senator John McCain, a fixture in the classical conservative wing of the Republican Party, agreed with Romney’s descriptions of Trump.

Senator Ted Cruz referred to Trump as a “bully” and “sniveling coward” who was “consistently disgraceful.” And,

“This man is a pathological liar. He doesn’t know the difference between truth and lies. He lies practically every word that comes out of his mouth, and in a pattern that I think is straight out of a psychology text book, his response is to accuse everybody else of lying,” …. “The man cannot tell the truth, but he combines it with being a narcissist—a narcissist at a level I don’t think this country’s ever seen.”

https://bit.ly/3bsGoO8

Senator Lindsey Graham said the following about Trump:

“I don’t think he has the temperament or judgment to be commander in chief.”

I just don’t think Donald is a reliable conservative Republican and quite frankly, he lost me when he said my friend John McCain was a loser because he was captured as a POW. He lost me when he accused George W. Bush of lying to the American people about the Iraq War, and he thinks Putin’s a good guy, so, I just can’t go there.

I’ve just got a hard time supporting somebody who claims that Ted Cruz’s dad was associated with Lee Harvey Oswald and involved in the Kennedy assassination. I’ve got a hard time supporting somebody for president who spent thousands of dollars of their own money trying to find out if President Obama was born in Kenya versus Hawaii. I think that’s crazy.

I just believe his temperament and judgment is not sufficient to be commander in chief of the finest fighting force in the world. I think his foreign policy is gibberish.

… embracing Donald Trump is embracing demographic death.

[https://bit.ly/2UzpKp6]

“I’m not going to try to get into the mind of Donald Trump because I don’t think there’s a whole lot of space there. I think he’s a kook. I think he’s crazy. I think he’s unfit for office.”   [https://bit.ly/2UMttA6]

Trump lied about giving up his active interests in his business empire.  He lied about disclosing his tax returns.

Then, Trump appointed his cabinet of incompetents and grifters, including Scott Pruitt, Tom Price and Ryan Zinke who, when they weren’t enacting anti-health insurance, anti-environmental protection and similar policies, were basically run out of town for corruption in office.

When Neo-Nazis descended on Charlottesville, VA, leading to the murder of a counter-protester, Trump declared there were “very fine people on both sides.” He said other things, to be sure, but overall the tenor of his comments about the white supremacists bearing swastikas & other Nazi paraphernalia was to equate their cause as equal to those protesting their presence. Trump’s history of equivocation and making false equivalencies is well-established on the public record. This has not stopped Trump from making outrageous and often outright false statements that are recorded on videos, then simply denying he made the statements thereafter.

He mocked a disabled reporter at a rally, urged violence against protesters, refused to read intelligence briefings, insulted U.S. intelligence authorities, insulted long-standing allies around the world, including shoving a world leader out of the way so he could stand in front for a photo opportunity.

Trump relishes giving demeaning nicknames to his political opponents, gets most of his “information” from the Fox News propaganda channel, demands unending praise from everyone around him at all times and constantly brags about his claimed achievements which are always the “greatest of any administration in history.”

All of that is on the public record and undeniable. The Washington Post Fact Checker has determined that Trump does hold one record: the most false and/or misleading statements in the history of American politics. This brings us to the current moment of national peril, the scenario that Trump’s critics have always feared the most: an existential crisis that Trump would prove incompetent to handle.

Again, the record on this is clear and indisputable by anyone able to face reality. Trump had reason to know in January that the coronavirus threatened the world with a death-dealing pandemic. He made multiple public statements downplaying the threat, boasting that he had the situation under control. He was supported in this by some of his sycophantic cabinet members who have learned they dare not criticize him if they want to keep their jobs. Trump essential dismissed the coronavirus threat, saying the cases would be down to zero in no time.

And, here we are. The number of cases has skyrocketed. The virus is present in every state. The death toll mounts hourly and is now in the thousands. Trump continues to publicly contradict the advice and public statements of the best medical advisors in the world. His penchant to say whatever he thinks will play well in the media has led him to make threats such as quarantining the entire states of New York, New Jersey and Connecticut. In a rare victory for reason, his staff apparently persuaded him that a “strong travel advisory” would be the better approach, but his swing-from-the-hip statements caused alarm in the region.

Trump’s equivocation has other consequences. His sway over right-wing politicians is so strong now that his resistance to recognizing the truth about the coronavirus has infected many of them and led to rejection of sound medical advice that might limit the spread of the virus. Unnecessary deaths will inevitably result.

Without belaboring this further, the question I posed at the outset can have only one answer: Trump has not been treated unfairly. He and he alone is responsible for his standing as the most dishonest and incompetent president in the history of the United States. I have only touched on a few of the lowlights of his mal-administration of the public trust but these are sufficient to show that Trump is fully deserving of every criticism leveled at him. His reputation for lying, for bullying, for self-glorification and all the rest is both well-earned and documented for all time on the public record. It will never be erased and nothing about his current conduct indicates he has the capacity to resurrect a functioning leadership role for himself. His legacy is established. It is time to remove him from office before it is too late.

Hero of the Week

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No, it’s not any of the Democratic politicians who brought articles of impeachment against the criminal traitor Donald Trump (because they omitted the 10 cases of blatant obstruction of justice from the Mueller Report – more about that in another post).

No, my Hero of the Week is Houston Police Chief Art Acevedo who ripped into Mitch McConnell, Ted Cruz and John Cornyn for their corrupt alliance with the National Rifle Association that the Sheriff said was ultimately responsible for the death of the officer he was there to bury [https://bit.ly/2RAg7XA]:

I don’t want to see their little smug faces about how much they care about law enforcement when I’m burying a sergeant because they don’t want to piss off the NRA.

Referring to the three senators, Sheriff Acevedo also said:

Make up your minds. Whose side are you on? Gun manufacturers, the gun lobby — or the children that are getting gunned down in this country every single day?

The Violence Against Women Act is stalled in the Senate in part because

the NRA doesn’t like the fact that we want to take firearms out of the hands of boyfriends that abuse their girlfriends …. You’re either here for women and children and our daughters and our sisters and our aunts, or you’re here for the NRA.

This is a law enforcement officer who speaks his mind. He is angry because he witnesses the real-life consequences of the Republicans’ refusal to advance legislation that might affect the position of the NRA that any restriction on access to guns is unacceptable. Cornyn is cited in the referenced article as, typically, blaming the bill’s failure to advance on the Democrats who won’t “negotiate” because they are focused on the small matter of a criminal traitor sitting in the White House with the support of, naturally, the Texas senatorial delegation and, of course, #MoscowMitch. I saw a TV clip yesterday of Cruz claiming that it was true that Ukraine interfered in the U.S. election in 2016, another example of gaslighting the nation with false narratives promoted by Russia for which zero evidence has been found to exist. Cruz cited a public statement made by an official in Ukraine to support his case, but it is blatantly obvious to any thinking person that expressing an opinion about something is not “interference” in an electoral process. Cruz is just another Trump toady.

In any case, kudos to Sheriff Acevedo for speaking the truth under the difficult circumstance of burying a fellow officer who died in the line of duty answering a domestic disturbance call involving an abusive boyfriend. The blood on NRA’s hands continues to mount. One day they will drown in it and good riddance.