Tag Archives: Trump

Vaccinate or Else!

Somewhat, and only somewhat, like the Most Interesting Man in the World from the beer ads, I don’t usually curse but when I do, well …. run.

As the world crumbles around us, I am sick to f*cking death of the whining, immoral, selfish, ignorant, indifferent fools who refuse to get vaccinated because of … what? Their “rights?” Their “freedom to choose?” I am not interested. I don’t want to hear it anymore. We now have people seriously saying we should pay these people to vaccinate. Or just be nice and understanding of their concerns. Or just leave them alone because they’re Americans and have the right to decide how to protect themselves and their families, never mind the impact their intransigence and ignorance may have on others, including children who are, for all practical purposes, entirely at the mercy of decisions made by adults.

No, no and more no. I lost a relative to COVID. I lay her death at the feet of Donald Trump and the mob of lying, sniveling cowards who supported him while he knowingly downplayed the severity of the coronavirus, promoted the use of medically unsound remedies, and generally allowed the country to sink into near oblivion. More than 600,000 dead in the United States alone. Most of them On Trump’s watch.

In early 2020 we lived in New York City, the epicenter of the initial coronavirus explosion in the United States. Within days of my wife’s office in midtown Manhattan closing (in mid-March,) I experienced what turned out to be mild symptoms of COVID as then understood. A local clinic doctor, dressed like a spaceman, said, “You almost certainly have COVID, but we have no tests for people like you who are still standing. Even if we confirmed it, we would just send you home. So, go home, stay there and good luck.” Given my health history, this was a terrifying direction that felt like a potential death sentence.

My wife was not as lucky as I was. She had been incredibly healthy, worked out all the time, ate right and all the rest but within days was in extremis with every known COVID symptom except the very worst ones – she had no lung or brain involvement. Some days you just get lucky. It was terrible. No other words for it.

I did what I could to help her through long nights when she was unable even to walk unaided, fevered, with severe body aches and all the other horrors you have likely read about by now. We lived about 50 yards from the Emergency Room entrance to Mount Sinai West hospital and, on many nights, I thought we were on the verge of having to take her in, knowing that she would be alone under the “no visitors” policies. The horror went on for over two weeks around the clock. People were dying left and right. Many of those who survived had permanent heart, lung and brain damage. The sirens bringing victims to the hospital blared throughout the day and night, day after day. It felt like the end of the world.

We were among the most fortunate in that we both recovered, long before much was even known about the virus, long before there was any realistic suggestion that a vaccine might be developed in less than a year. We were, of course, in lockdown. Our essential needs, and a few luxuries, were met by a stranger in our building, with a big heart and a lot of courage. [See the text of Angels In New York reposted below, originally in my discontinued blog AutumnInNewYork.net]

COVID is thus not an abstraction for us. It has taken the life of someone we knew and loved. It destroyed our sense of security in life – that if we worked hard and subject to the usual ups and downs, all would somehow be well. The pandemic stole more than a year of my waning lifetime. We burrowed in like animals, waiting for an invisible monster to slide silently into our lives again and possibly destroy us. We were afraid of everything: the mail, the Amazon boxes, the concierge at the front desk, the neighbors.

But, as I said, we were among the very fortunate who survived, almost entirely intact. When we moved to Washington in late 2020, a flukish circumstance enabled us to be vaccinated in January-February of 2021. We joined the growing legion of the saved, eventually able to walk outside without masks, to eat outdoors in restaurants without feeling we were placing our lives on the line and generally to resume a semblance of normal life. This was true freedom.

Now, inevitably it seems, the Delta Variant of COVID has arrived, reaching the United States virtually overnight, and is rampaging through the country. And what happens? The former president, who downplayed the virus at the outset, called the virus a “Democrat hoax,” secretly had himself vaccinated and is focused entirely on promoting the Big Lie that the 2020 election was stolen. His voice could have been influential in altering the course of the Delta Variant infection but, no, he only cares about himself. One of his chief sycophants, Ron DeSantis, Governor of Florida, has taken up the mantle of COVID-denier-in-chief, while the Delta Variant ravages his state. His continuous mixed messages just end up reinforcing the resistance.

And on and on it goes. If this keeps up, we are facing another wave of avoidable deaths (almost all current COVID deaths are from unvaccinated people) and possibly nationwide lockdowns that would deal a death blow to the economy and to hope itself.

I am in no f*cking mood for more of this ignorant nonsense. This is like sitting in theater watching a group of fools enter the haunted house, knowing they are headed into dangers they don’t see even though the evidence is everywhere. The feeling of impending doom can be a high for fans of horror movies, but I always hated them. My new sense of impending doom is far more profound and realistic now.

And, so, what is happening? CHAOS. The Republican Governor of Alabama has awakened from her self-induced political coma to say “it’s “time to start blaming the unvaccinated folks.” https://wapo.st/3x2eOSo Why now? Here’s why: her state has had a “92 percent increase in coronavirus infections and a 72 percent rise in hospitalizations over the past week.” But just one-third of Alabamians are fully vaccinated, one of the lowest levels in the nation. Meanwhile, “exhausted health providers say they are bracing for case spikes that are largely preventable, driven by the hyper-transmissible delta variant.” And, once again, and totally predictably, “hospitals are becoming overwhelmed in states with low vaccination rates.” And, also predictably, “a number of prominent Republicans and conservative media voices continue to shower vaccines with skepticism, and social media disinformation continues largely unabated.”

Examples of failed strategies abound. The National Football League adopted new rules that a team

“could be forced to forfeit a game if there is a coronavirus outbreak linked to unvaccinated players. The move has both competitive and financial implications: Players won’t get paychecks for forfeited games, the NFL said. About 80 percent of all NFL players had at least one shot before the rules took effect, said league spokesperson Brian McCarthy, who credited seminars about the vaccines’ benefits, on-site vaccinations and other tactics.”

The operative word is “could,” because the policy has two conditions: a game must be canceled because of a coronavirus outbreak among unvaccinated players or staff members and cannot be rescheduled. In any case, many players among the college-educated vaccination holdouts may well be prepared to take the chance. The policy applies to mostly very well-off athletes and staff for whom the risk of financial sacrifice may be a small price they can easily afford to pay. If the NFL wants to stop the virus, it needs to tell the players: “vaccinate or you’re off the team.” More on that in a moment.

A well-meaning article in the New York Times, Should Vaccinated People Start Wearing Masks Again?  https://nyti.ms/3BBvaoq has a lot of nice advice and information about masking and distancing practice in the face of the Delta Variant, but the problem now is that the complexity of the situation has worsened.  People generally don’t do well with such complex decision-making. The article presupposes freedom of choice, deep understanding of risks, a multitude of factual situations and more. It’s just too much to expect.

Contrast that with the decision of more than 400 colleges and universities requiring returning students for in-person classes to be vaccinated. The schools have simplified the decision-making: vaccinate or study elsewhere. Period. Hospitals and health systems are now also lining up to mandate vaccination or strict testing regimens that could lead to being sent home without pay or termination of employment.

The federal government has stated, correctly in my view, that private companies may require vaccination to return to work in offices. Failure to return could result in loss of employment and unemployment benefits.

Meanwhile, the data on the benefits of vaccination is overwhelming:

As of July 12, more than 159 million people in the United States had been fully vaccinated against Covid-19. Of those, just 5,492 had breakthrough cases that resulted in serious illness, including 1,063 who died. That’s less than 0.0007 percent of the vaccinated population. Meanwhile, 99 percent of deaths from Covid-19 are among the unvaccinated.

 In this one instance, I find myself partially aligned with Dr. Leana S. Wen, a regular WAPO columnist who seems always to find grounds for disagreeing with Democratic health policies. https://wapo.st/3iK5ddB  Dr. Wen says, “the Biden administration needs to strongly urge a return of covid-19 restrictions.” She’s not referring to lockdowns, at least not yet. She notes that “the CDC’s honor system didn’t work” but that “vaccinated people are still well-protected” and thus “in settings where everyone is known to have immunity, no additional restrictions are needed.”

In all other contexts, however, where the risk of infection spread is present, “indoor mask requirements should be reinstated.”

The problem, yet again, is that urging jurisdictions to follow science is no longer a realistic option. Los Angeles County issued a new mask mandate, only to find that its sheriff declined to enforce it. At the risk of letting some reality creep in, Dr. Wen notes, correctly, that “the areas with the lowest vaccination rates are also the ones least likely to implement mask mandates.” Nevertheless, she sticks to the “Biden administration can make a difference” theme.

Then, Dr. Wen makes what I believe to be a classic mistake:

The federal government could also use this opportunity to — finally — incentivize vaccination. It could say that areas with high vaccine uptake do not need to reimplement mask mandates, and mandate vaccination on planes and trains and in federal buildings.

Incentives have been tried in various places and they don’t solve the core problem. And a random policy on travel will just confuse everyone even more and lead to further non-compliance. Wen gets its right with her next suggestion:

And [the Biden administration] can finally get behind a vaccine verification system that would allow restaurants, gyms, workplaces and universities to create safe, maskless environments where everyone is vaccinated.

But, it’s going to require more than encouragement and cheering from the sidelines to get this done. We need, must have, a nationally mandated policy on vaccination.

I’m with Max Boot on this. https://wapo.st/3i55mt4: “Stop pleading and start mandating.”

…. even as evidence grows that vaccines are safe and effective, resistance to them is also growing. A recent Post-ABC News poll found that 29 percent of Americans said they were unlikely to get vaccinated — up from 24 percent three months earlier. Only 59 percent of adults are fully vaccinated.

…. the biggest obstacle to vaccination is now Republicans who are being fed a steady diet of anti-vaxxer propaganda by Fox “News” Channel, Facebook and other social media, and reckless demagogues such as Sen. Rand Paul (R-Ky.) and Rep. Marjorie Taylor Greene (R-Ga.).

This is madness. Stop making reasonable appeals to those who will not listen to reason. (According to an Economist/YouGov poll, a majority of those who refuse to get vaccinated say vaccines are being used by the government to implant microchips.) It’s a waste of time. Start mandating that anyone who wants to travel on an airplane, train or bus, attend a concert or movie, eat at a restaurant, shop at a store, work in an office or visit any other indoor space show proof of vaccination or a negative coronavirus test.

I understand the argument that Republican Governors may resist a national vaccine passport, but that’s too damn bad. The federal government has the authority under the Commerce Clause, among other powers, to compel compliance. It should act before it’s too late.

The argument that the federal government should step in with financial awards for getting vaccinated suffers from multiple problems. Principles developed in behavioral economics tell us that people are more concerned about loss than about gain. Offering some modest amount, declining over time, as recommended by Charles Lane in WAPO, https://wapo.st/3kSyfue, not only rewards the wrong behavior, it assumes that the recalcitrance of anti-vaxxers and COVID-deniers can be overcome with a few pieces of silver. For some, maybe that’s true, but it seems unlikely for the vast majority, and we have little time to lose with such experiments.

Adopting a strong, mandatory federal policy that supersedes all conflicting state laws, regulations and mandates (recall the Constitution’s Supremacy Clause), with significant consequences attached to non-compliance, is now the fastest path to assuring the bulk of holdouts are vaccinated in time to prevent the worst consequences of an uncontrolled pandemic resurgence. The mandate must be accompanied by clear and specific instructions on the acceptable proof of vaccination.

Anticipating the objections, yes, of course, the plan would require some form of exception for limited religious and demonstrable medical issues involving people with relevant co-morbidities, small children and the like. Compared to the consequences of an uncontrolled and continuously morphing viral pandemic, those are small problems. Some of those affected would, however, experience limitations on their behavior until we can be satisfied that herd immunity has been achieved.

Will this approach have implementation issues? Very likely. We have fiddled around so long that a rational, well-executed plan may be nearly impossible, but that’s not cause to shy away from trying. At this stage, we are grasping at straws, but it seems apparent that nothing of a “voluntary nature” is going to overcome the suicidal tendencies of, mainly, Republican anti-vaxxers. They are unmoved by the data showing that most of the deaths and other serious consequences of COVID infection are among the unvaccinated.

We must, therefore, remove the question from consideration: you want to drive, you get a license. You want to go to restaurants, movies, bars, travel, etc., you get vaccinated. Otherwise, stay home in lockdown. Our lives depend on it. End of story. If the vaccine resisters don’t approve, well, return to the first sentence of my second paragraph ….

************

Repost of Angels in New York [from April 20, 2020]

Just when you least expect it and are sinking into the despair of self-isolation with a sick spouse and extreme personal vulnerability to the coronavirus, someone appears as if by magic to save the day. It’s not magic, of course; it’s human kindness and generosity at its best. I referred to her as an angel in an email and, with no prompting from me, my wife used the same terms. It must therefore be true.

The story is simple enough. My wife has come down with what appears to be COVID-19. We don’t know how it happened. We’ve taken all the precautions. Nonetheless, a doctor in a televisit said she thought it was COVID. It fits the symptoms list perfectly. Fortunately, so far, there are no breathing issues. But you may take my word for it – this virus is mean as a junk yard dog. Everything bad you’ve heard about it is true.

Anyway, my own vulnerability has led my wife to vehemently object to my leaving the apartment. Since she became ill six days ago, I have left only twice to pick up food deliveries and packages at the concierge desk and that was over her protest. When she started to need some things we had consumed, like ginger ale, I found that it is impossible to order online at CVS for delivery of items sold “only in store.” We then recalled that a few people in our building (700 apartments in two towers) have volunteered through the resident portal to help people like us. One of them was recent. I found her message and we began to communicate.

Skipping some of the details, she instantly agrees to trek to the CVS around the corner to buy whatever we need. Faced with imminent store closure (it’s Saturday night at 8 pm and the normal “open 24 hours” has apparently been suspended), she makes them stay open until she gets everything we asked for and delivers it to our door. She exhibits no impatience whatsoever as we text back and forth about the options/brands, etc. She wants us to have exactly what we want, not just what is convenient for her to grab and go. I am a bit overwhelmed.

This leads to a second trip the next day when we discover other needs. She texts me from the store to recommend an over-the-counter medication that may help my wife’s nausea (it did) after consulting with the pharmacist about it. She sends photos of various options so I can choose specifically what she should buy.

She patiently helps me struggle to reimburse her through her website (standby re that), but refuses to accept anything beyond the actual cost of the purchases. She says: “no way I’m taking anything other than exact amount.  Grandpa, who stormed the front in Battle of Bulge, would be horrified and embarrassed if I were to dishonor family name during time of national crisis.”

Now, I know I’ve encountered someone very special. An angel in human disguise. In New York City. We exchange a bunch more emails and texts after I check out her website where she manages, as a hobby, a meditation/mindfulness training program for working people. My wife in particular is interested in this for her post-recovery work life. It turns out this new friend-by-text and I are both alums of Yale University (me, Yale College, she the Law School) and Harvard (me the law school, she the Business School). To respect her privacy, I will not identify her by name. Her resume is intimidating. I joke that I and members of my class often observe that we probably couldn’t get into Yale now and her background shows why. She finds this amusing. She has a sense of humor and an infectious positive attitude toward life. [Is it a pun to refer to “infectious positive attitude” during a pandemic?]

I explain that since there is an immutable rule of life that no good deed goes unpunished, there will be two consequences to her work as Good Samaritan for us: one is that my wife must make dinner for her when the lockdown ends and life returns to some semblance of normality. The other is that I will write about her in this blog.

This is a story that must be told and included in my tales of life in New York City. She demurs on the blog but we agree she will bring dessert of her choice to the dinner. She sends me a remarkable photo of a multi-color dessert cake she had baked and says, “be afraid.” Date to be determined but I am optimistic we will make this happen.

And, for sure, my wife and I will be made better by having known this generous, ebullient, kind-hearted person, an unexpected benefit from the pandemic. As I conclude this post at 7 pm, I hear the New Yorkers that have balconies applauding, banging pots and cheering for that other group of angels working in the Emergency Rooms and ICUs around the city. This happens every day and apparently has started a national “movement,” as well it should. Giants and angels come in all sizes and in many disguises. If you’re lucky enough, an angel will find you too. I hope so.

Twilight Time?

It is a desultory day in Washington, overcast and gray, with predictions of potentially catastrophic storms, flash floods and tornados, almost none of which are likely to happen. They are predicted every time a “storm” passes through. We persist. But the weather threatens to postpone the baseball game on which I have been counting to distract from all the other negatives – being alone on Saturday night, the air outside so heavy that it is hard to breathe (earlier the heat index was 111, now a refreshing 92), Chinese leftovers from last night for dinner (wasn’t great then, likely less so now), and so on.

And then there is the blow to my already dwindling hopes for our country. No doubt I am under the stultifying influence of having, foolishly I admit, undertaken to argue with a bunch of “business people” on LinkedIn, which has, sadly, become yet another forum for right-wing hysteria. At times the people involved have been vicious, but what is most dispiriting is that they, as classical Trump acolytes, simply cannot accept what I believe to be reality. One example: they reject the reality of the January 6 assault on the Capitol. One of them flat-out called it “all lies.” The videos are just “fake news” to them, further evidence that the “left” has stolen from them their rightful leader whom some still appear to believe will be “restored” in August. They think the violence following George Floyd’s murder is no different than the insurrection at the Capitol.

I have been seeking to understand that type of thinking for some time. For a while I was impressed by George Lakoff’s Moral Politics, that argues the core issue is different understandings of proper family life and hierarchies of morality and social order. And there are others that, at one time or another, seemed to be on to something.

Then, today, I finished Anne Applebaum’s Twilight of Democracy, subtitled The Seductive Lure of Authoritarianism. I didn’t much care for most of it; too much personal style and mostly about Europe, Poland in particular, but … near the end, I am afraid to think she nailed it. The book mainly lays out the ways in which authoritarian ideas emerge and irreparable divisions develop in societies that were seemingly oriented toward, if not in fact, functioning democracies. The stories are compelling if remote from my experience.

But the ultimate conclusion is something else again: it’s as if the explanation was staring us in the face, was so obvious, and the same time so frightening, that we didn’t see it.

Applebaum notes that Trump’s inaugural speech signaled the beginning of the revelation in its early and repeated references to the decline of America and its values, what he called the “American carnage.” He posited a state of fundamental conflict between the government and the people, and between the United States and the rest of the world. Trump’s solution: “America First.”

Applebaum tellingly analyzes Trump:

To the millenarianism of the far right and the revolutionary nihilism of the far left he adds the deep cynicism of someone who has spent years running unsavory business schemes around the world. Trump has no knowledge of the American story and so cannot have any faith in it. He has no understanding of or sympathy for the language of the founders, so he cannot be inspired by it. Since he doesn’t believe American democracy is good, he has no interest in an America that aspires to be a model among nations.  [Twilight at 154]

Applebaum then observes that Trump’s embrace of Vladimir Putin’s rhetoric translates directly to a form of moral equivalence. The essence of that equivalence is that all countries, certainly all governments, are corrupt in equal measure. If all are corrupt, then “whatever it takes to win is okay.” [Twilight at 155] This, she notes,

is the argument that anti-American extremists, the groups on the far-right and far-left fringes of society, have always made. American ideals are false, American institutions are fraudulent, American behavior abroad is evil, and the language of the American project – equality, opportunity, justice – is nothing but empty slogans. The real reality, in this conspiratorial view, is that of secretive businessmen, or perhaps “deep state” bureaucrats, who manipulate the voters into going along with their plans, using the cheesy language of Thomas Jefferson as a cover story. Whatever it takes to overthrow these evil schemers is justified….

This form of moral equivalence – the belief that democracy is no different, at base, from autocracy – is a familiar argument, and one long used by authoritarians….

… this is what Trump has proven: beneath the surface of the American consensus, the belief in our founding fathers and the faith in our ideals, there lies another America, Trump’s America – one that sees no important distinction between democracy and dictatorship. This America feels no attachment to other democracies … The unity of this America is created by white skin, a certain idea of Christianity, and an attachment to land that will be surrounded and defended by a wall. This America’s ethnic nationalism resembles the old-fashioned ethnic nationalism of older European nations. This America’s cultural despair resembles their cultural despair. [Twilight at 155-158]

This explanation flies in the face of much of the rhetoric of the Republican Party, including Trump’s most ardent acolytes who speak passionately, but falsely, after freedom and “the American way of life.” The relentless drumbeat of USA, USA and the flags and all the rest obscure the real message.

Applebaum’s book has many other insights to commend it for reading by anyone interested in the question whether we are in the twilight of democracy, but for me, she has encapsulated in the above quotes the true explanation of the Trump phenomenon. It comes down to the simple proposition that Trump and those who support him do not believe in the democratic principles on which the country was founded.

Some time back I had speculated that Trump’s election in 2016 led him to believe that he had somehow been granted ownership of the country, that he was owner and CEO of the United States vested, as he saw it, with unlimited power (“I can do whatever I want”). He is another dictator in the making, another Viktor Orbán (Hungary), another Vladimir Putin wannabe. Those men aren’t interested in democracy – they just want to rule. That is Trump as well, and the Republican Party now belongs to him, just as Don Jr. proclaimed a while back.

These people do not recognize the fundamental legitimacy of the legal and traditional arrangements that have been the foundation for our democracy since the Constitution was ratified. Think back to Trump’s statements and behavior. Trump does not believe in democracy. That is why Trump saw no real problem in proclaiming, against all the evidence, that the election was stolen and why he saw no problem in directing a mob of true believers to attack the Capitol on January 6.

This is not about policy disputes over immigration policy or tax philosophy or deficit spending. It is about the essential principles that must be respected if a democratic republic is to function. Thinking of this as just another, though perhaps more serious, dispute about political philosophy, fatally overlooks the reality that the Republican Party no longer operates under the rules and principles of a free democracy.

Democratic politicians who think that Trump is just a temporary phenomenon who can be dealt with by traditional political means are making a potentially fatal mistake. The danger of further attacks on the national government is very real. All elements of the government, including particularly law enforcement and the military, must be prepared to respond as necessary to put down any such assaults. The next time must be the last or surely we will lose our republic, just as Ben Franklin warned. It is past time for the government to demand accountability for the many crimes committed by Trump and his henchmen while in office. This is necessary to make clear that there will be no repeat.

 

“Lawless White House” – the Mueller Report – “Oh! What A Tangled Web We Weave …”

The rest of line, you likely know, is “when first we practice to deceive.” Originally published in 1808 but completely relevant to the politics of today. The quote of a “lawless White House” is in the extraordinary book I’m about to describe.

We’ll never know the whole truth about Russian interference in the 2016 election or, most likely, many of the other crimes committed by Donald Trump and his White House/Congressional enablers. Most of the relevant documents have likely been destroyed or hidden away from the prying eyes of investigators armed with subpoenas and, one may wish, indictments. Trump and his enablers have shown they have no regard for law and will do anything to avoid being held accountable.

A bitter pill to swallow. There is, however, still much we don’t know that can be discovered despite the fact that the relevant rules favor the criminals and traitors – see, e.g., the accused is innocent until proven guilty, proceedings of the grand jury are secret, non-disclosure agreements are enforceable, attorney-client privilege and executive privilege, to name just a few.

In 2019 I read every word of and wrote extensively about the Mueller Report, with emphasis on what seemed to me the glaring shortcomings of the investigation and the conclusions reached. The links to those posts are set out at the end of this post for those who care to look back. Little did I know what was really going on. I had only the report itself and various news reports as sources.

But now we have Andrew Weissmann’s remarkable book, Where Law Ends—Inside the Mueller Investigation, published in Sept. 2020, but which I have just discovered and read compulsively. It is a barn burner in the truest sense and should be read by everyone who is genuinely interested in saving our democracy. When you are done, you will understand much better the frailties of our constitutional system and the means by which a putative dictator can undermine the separation of powers and subvert the rights we have taken for granted.

You know you’re in for a wild ride in the Introduction, where Weissmann describes AG William Barr’s 4-page letter purporting to explain and elaborate on the Mueller Report as “so many deceptions,” “deliberately worded obfuscations,” and “unbridled lies.” Weissman, after a long career in the FBI under Mueller, was put in charge of the “M Team” for the Special Counsel Investigation. The M Team was the group of lawyers, FBI agents and others who would determine what crimes had been committed, if any (obligatory qualification there) by Paul Manafort, who for a time was Donald Trump’s campaign manager, among many other roles. The other teams were the “R” (to investigate Russian interference in the 2016 election and possible collusion by the Trump campaign with Russian bad actors) and the “600” team (to determine whether Trump had obstructed justice in violation of federal law).

Weissmann thus was in the center of the investigation, privy to most of the challenges and involved in most of the discussion of strategy and tactics as Trump’s determination to undermine the investigation at all costs became apparent.

I am only going to touch on some highlights, that I hope will induce everyone reading this to acquire and digest Weissmann’s book. A full summary would far exceed the bounds of a reasonable blog post and give away too much of the astonishing revelations.

With books like this one, there are often questions about the content and timing of publication. The Twitterverse and other commenters reacted as expected, with some questioning “why wait so long?” “why not reveal everything, including the secret grand jury evidence?” and so on. My response to those critics is (1) pre-publication review was essential to the book’s publication at any time, (2) the book is meticulously fact-oriented and replete with legal analysis (presented mainly in laymen’s’ terms) – something of this nature could not be rushed, and (3) Weissmann gained nothing personally or professionally from delay – he was and is committed to the preservation of law and would have been foolish to violate the confidentiality of grand jury proceedings.

It is also telling that, atypically of exposé books, Weissmann does not make himself the unsung hero of the tale. Quite the contrary, he admits to more than one serious error of judgment in dealing with Mueller and Mueller’s uptight top deputy (Aaron Zebley, Mueller’s former Chief of Staff at the FBI) who was brought in from Mueller’s law firm even before Weissmann was hired. Weissmann takes great pains to explain the competing considerations and why he made particular decisions, while also, appropriately in my view, assigning serious errors to people who deserved the rebukes in light of everything known at the time. Anyone who has been involved in any kind of serious investigation (I have) can surely appreciate the difficult choices confronting the leadership of the investigative teams. Nevertheless, rigid thinking and timidity in the face of threats from the subjects of the investigation led to catastrophic errors.

More important, this is a true inside account of the investigation. Weissmann, while in thrall of Mueller before, during and after the investigation/report, is unrelenting in exposing the investigation’s problems and mistakes, laying out the consequences in stark terms. Examples abound throughout the 346 pages. It reads like a good murder mystery, but you know from page one that it is real, not fiction, and all the more chilling for that.

Weissmann flatly accuses the Trump administration of unlawfully interfering with the DOJ Criminal Division in Foreign Corrupt Practices Act cases. Trump had always railed against the FCPA because it interfered with his ability to bribe foreign officials to get development rights he was after overseas.

James Comey comes in for particularly harsh assessment regarding his decision, shortly before the 2016 election, to disclose the discovery of additional emails on the computer of Anthony Weiner who was (inexplicably, to me) the husband of Huma Abedin, a senior aide to Hillary Clinton. Weissmann sets out the multiple options Comey had in addition to the two he claimed were the only ones open to him. Weissmann at 54.

Weissmann also endorses the critique of Comey by Deputy AG Rosenstein while noting that Rosenstein was effectively covering for Trump’s desire to remove Comey because Comey refused to drop the investigation of General Michael Flynn. Weissmann notes that Trump’s statement on the Comey firing was drafted by Trump with Stephen Miller before Rosenstein became aware of Trump’s plan to fire Comey. Thus, “The White House’s effort to pass off the Comey firing as Rosenstein’s idea was a fabrication.” Weissmann at 60. Only one of many, it would turn out.

The White House also withheld from the Special Counsel an important document pertinent to the Russian interference in 2016. Trump’s lack of concern or interest about it made for Obstruction of Justice No. 11 in the pantheon of obstruction uncovered by Mueller, or would have been uncovered. If Mueller had insisted that Trump testify under oath.  Weissmann at 61. In any case, the firing of Comey is explained and shown to be a clear case of obstruction of justice by Trump. Weissman at 64.

An entire chapter of the book is devoted to the infamous Trump Tower meeting, that was the subject of withheld information (Jared Kushner) and lies (Papadopoulos). Weismann at 86. Among the conclusions: “it was clear that the highest levels of the Russian government were trying to help Trump and damage his opponent” and “the Trump campaign was extremely receptive to this help.” Weissmann at 88.

In a second chapter entitled “The Trump Tower Cover-Up,” Weissmann notes that neither Donald Trump nor Don Jr. ever agreed to meet with the investigators voluntarily and neither was brought before the grand jury. And the parties coordinated their versions of events to, among other things, support Don Jr’s claim that he had never meet any Russian officials. Weissmann at 103. Weissmann concluded that Trump himself lied about the Trump Tower meeting, that lying was in effect a basic Trump strategy for solving problems and that he seemed to believe there were never any consequences to his doing so. Weissmann at 107. History, so far, shows that Trump’s belief in his invulnerability is justified.

That episode reveals one of the serious points of disagreement within the investigative team. Team 600 concluded that it had found no evidence, through a witness or documents, that proved the president’s motive in lying was to deceive Congress and thus he could not be found to have engaged in criminal obstruction of justice. Weissmann calls this conclusion “timorous,” which in retrospect seems an understatement at best. Weismann at 108. At 110, Weissman concludes, more precisely, that the Trump Tower meeting was “damning.”

This episode, however, was prescient for the future of the investigation as Mueller and Zebley adopted a narrow and rigid view of the mission of the Special Counsel, what the evidence showed and what was risked by being too aggressive in the investigation. See, e.g., Weissmann at 128-129. Eventually, for a time at least, Mueller realized how impactful Russian interference could be and authorized a more full-throated investigation into all aspects of Russian interference, Weissmann at 132, but the ongoing reality was that Mueller was influenced far too much by Trump’s shenanigans throughout the investigation and creation of the final report.

That observation brings me to the most important points about this book. I may have more to say about the details in a future post, but it is vital to understand the overall process and how Mueller’s and Zebley’s conservatism led to a flawed process and failed report.

The harsh and ugly truth is that the presidency, in the wrong hands, gave the subject of the investigation an unequaled power to influence the behavior of witnesses, principally in this case Paul Manafort, but others as well. One such influence is the pardon power that Trump unsubtly dangled to assure witnesses that if they remained loyal to him, even to the extent of repeatedly lying to the investigators, they would be spared any consequences. And we know that this was a situation where loyalty to Trump was indeed rewarded with pardons or commuted sentences– for Manafort, for Flynn, for Stone, for Bannon, for Papadopoulos and others. https://bit.ly/3hfx7O3

The other major influence was Trump’s ability to fire the Special Counsel and thus end the investigation. If Mueller’s fears about this were based on the idea that the Republican Party (his party) would not hold Trump to account, he would have been right to be concerned. Nevertheless, Weissmann argues, persuasively, that the impact of this concern unduly colored many of the most important judgments made in the ultimate report.

Whether or not our skepticism is warranted, the book makes very clear that these two elements: Trump’s ability to pardon wrongdoers and his power to fire the Special Counsel, when used to serve Trump’s personal interest, are matters of the most profound concern for the future of our governance.

One of the most remarkable effects of this, when combined with the relentless attacks from the right-wing “media,” was that while Ivanka Trump, for example, almost certainly had relevant information about, for example, the Trump Tower meeting, the decision was that Ivanka was not to be interviewed. Weissmann at 117-118. Don Jr similarly could have been subpoenaed after refusing to be interviewed, but this was not done either. Weissman at 118. Astonishing. Fear of being fired also impacted decisions regarding how broadly to look into Trump’s finances in search of indirect Russian contributions (the Deutsche Bank subpoenas, for example, still not fully fleshed out). Weissmann at 147-148.

It is clear that Trump’s willingness to, directly and indirectly, threaten the Special Counsel with termination had major effects on the scope and aggression of the investigation. That reality explains many of the obvious and serious defects in Mueller’s final report discussed in detail in my earlier blog posts and exposed by Weissmann’s inside knowledge.

Weissmann demonstrates a clear-eyed understanding of the extent of Donald Trump’s corruption: “One cannot plausibly deny that Trump was seeking foreign assistance from Russia and was open to accepting it if offered.” Weissmann at 126, 135, 140. He labels Trump a continuing “counterintelligence threat.” As long as he remains free and unindicted for his multiple crimes in office, Trump remains such a threat despite his lazy indifference to national security briefings that have been a daily staple in the lives of presidents for a very long time. He knows a lot that would be valuable to our adversaries. Continuing through to the end of his presidency, Trump never acted against the Russian interference that was proven to continue into the 2020 campaigns. Weissmann at 218-219, 222. The book lays out a stark and disturbing list of failures to confront the Russian interference threat. Weissmann at 224.

Similarly, Weissmann describes how Rick Gates was aggressively pressured by Paul Manafort and unnamed others to refuse cooperation to the investigation. Weissmann at 206-208. The prospect of a pardon from Trump was part of the “package” of sweeteners to keep Gates quiet. Ultimately, the pressure failed to silence Gates, but just barely.

One particularly interesting story involved Manafort ginning up attacks from Fox’s Sean Hannity against the Special Counsel investigation in violation of the trial judge’s bail orders that had permitted Manafort to remain free pending trial. The investigators correlated Manafort’s texts to Hannity with on-air smears of Mueller and staff. Aaron Zebley, however, prevented the submission of the texts to the court, saying, “they are too explosive.” Weissmann at 209.

Much of the story of the Mueller investigation reads like the script of a television drama series. Typically, parts of such plots are so over the top, so corrupt and malign that they strain credulity. Trump, however, must have studied those shows because his conduct with people like White House counsel McGahn showed a willingness to flout the law at will. Trump never believed, and likely still does not believe, that he can be held accountable. He genuinely believes he is above the law and able, as he said, “to do whatever I want.”

Skipping much material that I may cover in a future post, Weissmann’s narrative ends full circle, reviewing then-Attorney General Barr’s letter purporting to summarize the Mueller Report, but which in fact was a green light to unleash Trump’s corruption in full and unrestrained flower. It led directly to the Ukraine extortion attempt that led to Trump’s first impeachment. Weissmann at 331. And to Giuliani, Nunes, and the political forgiveness of Roger Stone and Michael Flynn, that Weissmann refers to as the “gaggle of presidential defenders and conspirators.” At 332.

Weissmann surgically dissects Barr’s falsities, noting, for example, that Barr’s claim that the president had “full cooperated” with the investigation “”is not just untrue, it’s astonishingly far from the truth.” Weissmann at 333. The same for Barr’s claim that Trump had not asserted presidential privilege to withhold information.  And the same for Barr’s assertion that Trump had formed a “sincere belief” that his presidency was being undermined by the investigation, a claim whose provenance was never explained and in any case was irrelevant to the question whether Trump had obstructed justice.  Weissmann rips Barr’s claim that the Russian active measures were directed at “social discord” rather than helping Trump defeat Hillary Clinton. Lie after lie after lie.

Weissman concludes with some recommendations for ways to strengthen the Special Counsel regulations but, more importantly, disputes compellingly the DOJ policy, adhered to strictly by Mueller, that if the president could not be indicted, it was improper to accuse him of wrongdoing. Weissman at 342. A sitting president can indeed defend himself if he chooses to do so. The policy makes no sense. I addressed the no-indictment policy in a prior post on this blog.

Finally, and perhaps most important of all, Weissman notes that the presidential pardon power in the Constitution should not be used to protect the president personally by, in effect, covering up the crimes of others who would, absent the pardon power, have incriminating information on the sitting president. He argues that it should be unconstitutional for a president to use the pardon power to protect himself, independent of whether that power could be used to directly pardon himself. Weissmann at 344. That seems exactly right to me, although I have some doubts that the “conservative” majority now on the Supreme Court wouldn’t just take the simple-minded approach that the words conferring the pardon authority contain no limitations and therefore are absolute. That is a view that would further cement the anti-Constitutional idea of the imperial presidency that Trump tried to impose on the country. We can see in the events of January 6, among many other examples, where that leads.

*********

Links to Posts re Mueller Investigation:

Mueller’s Indictment of Russia Hackers   https://bit.ly/3gQe7Xb    July 13, 2018

Mueller’s Indictment of Russia Hackers – Updated  https:://bit.ly/3h33lvl July 14, 2018

The Mueller Report – Where From Here? https://bit.ly/3gZQElm   March 24, 2019

Semi-Final Thoughts on Mueller Report https://bit.ly/3j8gVRh  March 25, 2019

Issues raised by Mueller/Barr/Rosenstein https://bit.ly/3wSPjni March 27, 2019

Redactions of Mueller Report Must Be Coded  https://bit.ly/3j8nX8q April 6, 2019

MUELLER REPORT PART I – TRUMP CANOODLING WITH RUSSIA https://bit.ly/3jeBNGr  July 9, 2019

MUELLER REPORT PART I — TRUMP CANOODLING WITH RUSSIA – A https://bit.ly/3dagOkk  July 10, 2019

MUELLER REPORT PART I – TRUMP CANOODLING WITH RUSSIA – B https://bit.ly/3zNATqe  July 10, 2019

MUELLER REPORT PART I – TRUMP CANOODLING WITH RUSSIA – C  https://bit.ly/3xTRsPI  July 11, 2019

MUELLER REPORT PART I – TRUMP CANOODLING WITH RUSSIA – D  https://bit.ly/3vUR1D9  July 11, 2019

MUELLER REPORT PART I – TRUMP CANOODLING WITH RUSSIA – E https://bit.ly/2U46bIX  July 11, 2019

Mueller Report Part II – Trump Guilty of Obstruction of Justice-A   https://bit.ly/3gQAXOu   July 23, 2019

Mueller Report Part II – Trump Guilty of Obstruction of Justice-B, C  https://bit.ly/3A5gf5l   July 23, 2019

Mueller Report Part II – Trump Guilty of Obstruction of Justice – D    https://bit.ly/3wVcw8l   July 23, 2019

Mueller Report Part II – Trump Guilty of Obstruction of Justice-E   https://bit.ly/3gRyKlW  July 23, 2019

Mueller Report Part II – Trump Guilty of Obstruction of Justice – F   https://bit.ly/3gRHR61  July 23, 2019

What Do You Call a Collection of Traitors & Cowards?

There is a gaggle of geese (also a press gaggle and, generically, any group)… a coven of witches, pride of lions (definitely not lions), herd of giraffes (also cattle) … getting warmer.

Not that important, I suppose, to have a name for the mob of people who attacked the Capitol on January 6, 2021, in an attempt to stop the election of Joe Biden and replace him with the dictator Donald Trump. I was inspired to think about this when I found this site https://bit.ly/3xRc2QA which the FBI’s display of 1,175 photos of people they are still seeking to arrest for their role in the January 6 insurrection (a very few since arrested). The list bears this note:

If you have any information on the individuals pictured above, please call 1-800-CALL-FBI or submit a tip online at tips.fbi.gov. Please reference the photo number, including the AFO or AOM if applicable, when calling or submitting information online.

Aside from the outrageous nature of the attack itself, the shocking thing about these photos is that many of them are very clear, full face shots that could be identified readily by any number of friends, family, acquaintances, co-workers or customers. Still, however, these people are at large. I’m sure most people who read this blog will not know any of these charmers, but just in case, I am writing this post in the hope that readers will review the photos and report anyone they know.

I understand the idea that “ratting out” someone is frowned upon, even by upstanding people of strong religious and patriotic values. But these people were trying to overthrow the democracy on which your freedoms depend. Don’t think for a moment that if they had succeeded in installing Trump for a second term, despite his election loss, everything would just have continued as before. Recall that Trump himself spoke on multiple occasions about a third term, to rousing applause from his rally acolytes. It was no joke then and certainly no joke after January 6. So, please review the photos and see if you recognize anyone. If you do, report them to the FBI.

And don’t miss the list of arrest announcements at the bottom of the pages of photos. Each is linked to a press release with details of the person’s involvement in the January 6 attack. Makes interesting reading.

While I’m on this subject, I want to make a few comments about some of the “defenses” that I have heard made by January 6 defendants who have been arrested.

One is the “pure of heart” defense, which goes something like, “I was there because I truly believed what Trump had said and I thought I was patriotically defending my country…blah, blah.” Nonsense, you don’t get passing grades in school even if you convince yourself that Martians ate your homework. Belief is a choice you make and every person who claims they believed Trump had access to information that would have shown he was lying about the election. No defense.

Then there is the “I didn’t know it was illegal” defense, based on the idea that the Capitol is a “public building” and therefore the public has the right to go there any time and under any circumstances the public chooses. No, actually, untrue and any person with a functioning mind would know, from personal experience and casual observation, that “public” buildings are normally guarded now-a-days and access is strictly controlled. Moreover, and it pains me to have to add this, there were Capitol police on site who were obviously indicating that access to the building was not open, and no normal person would think it’s just fine to ignore their presence and their resistance to entry.

Finally, there is the “I just got caught up in the crowd” argument. Well, that could possibly be true for a few of the people who walked to the Capitol from Trump’s incendiary speech, but … once there, it should have been clear, again to anyone with a functioning mind, that the crowd had turned into a violent mob and that it was better to skedaddle than to just go along to get along. This “defense” is nonsense and, in my view, even if factually accurate in a handful of cases, it is no excuse. It reads a lot like “yeah, I knew my friends were going to rob the store, but I drove the get-away car anyway because, you know, they were my friends.”

Rant over. Please look at the FBI photos and see your fellow Americans at play. If you recognize anyone, turn him/her in to the FBI. You will feel better for it.

 

A Darkness in the Heart

A few days ago, Rep. Carolyn Maloney, Chair of the House Committee on Oversight and Reform, releaseddocuments showing ex-President Trump’s efforts to pressure the Department of Justice (DOJ) to overturn the results of the 2020 presidential election.  https://bit.ly/35wq4uL Maloney’s release says, in part,

These documents show that President Trump tried to corrupt our nation’s chief law enforcement agency in a brazen attempt to overturn an election that he lost. Those who aided or witnessed President Trump’s unlawful actions must answer the committee’s questions about this attempted subversion of democracy.

This is not really new. Recall that on May 3, 2017, more than four long long years ago, I published, https://bit.ly/3vObOrS that included a 24-item list of indictable/impeachable offenses by Donald Trump. That was long before the March 2019 Mueller Report, laying out conclusive evidence of at least ten instances in which Trump obstructed justice. And longer still before the July 2019 phone call in which Trump threatened the President of Ukraine that he would withhold Congressionally-approved aid if Ukraine did not announce an investigation of Joe and Hunter Biden. See https://bit.ly/3vBQ7LF It was even longer before the January 6, 2021 Trump-inspired and Trump-led (“I will be there with you.”) attack on the Capitol, for which I recommended that Trump be indicted, arrested and charged with Sedition & Felony Murder. https://bit.ly/3q7iaSb

Thus, it comes as no surprise that unleashed Trump has once again committed multiple crimes. [An aside: this is not an exaggeration. I will soon be reviewing the extraordinary memoir, Where Law Ends, by Andrew Weissmann, the inside account of the Mueller investigation that reveals in horrifying detail the determination of Donald Trump to retain power and remain unaccountable to the people, including multiple crimes in office]

In a nutshell, as exposed in the released documents, here is how Trump attempted to subvert the Department of Justice in the wake of his 2020 election defeat [full details here; https://bit.ly/35wq4uL]:

Trump Sent Bogus Election Fraud Claims to Top DOJ Officials Minutes Before Announcing Their Promotions to the Top Two Spots in the Department

Trump Used Official White House Channels and a Private Attorney to Pressure DOJ to Urgently File a Supreme Court Lawsuit to Nullify the Election

      • The draft 54-page complaint demanded that the Supreme Court “declare that the Electoral College votes cast” in six states that President Trump lost “cannot be counted,” and  requested that the Court order a “special election” for president in those states.

Trump Enlisted Assistant AG Jeffrey Clark in an Attempt to Advance Election Fraud Claims; The White House Chief of Staff Pressured DOJ to Investigate Conspiracy Theories At Least Fives Times

 Examples [“Rosen” refers to then Deputy AG Jeffrey Rosen]:

      • On December 30, 2020, Mr. Meadows forwarded Mr. Rosen an email from Cleta Mitchell, a Trump advisor who later participated in a January phone call with Georgia Secretary of State Brad Raffensperger.  During that call,  President Trump reportedly asked Georgia election officials to “find” enough votes to declare him the winner of the state.  The December 30 email contained allegations of “video issues in Fulton County.”  Mr. Meadows wrote to Mr. Rosen:  “Can you have your team look into these allegations of wrongdoing.  Only the alleged fraudulent activity.”
      • Later on December 30, 2020, Mr. Meadows emailed Mr. Rosen a translation of a document from an individual in Italy claiming to have “direct knowledge” of a plot by which American electoral data was changed in Italian facilities “in coordination with senior US intelligence officials (CIA)” and loaded onto “military satellites.”  This individual claimed that the true data, as well as sources within the conservative wing of the Italian secret service, confirmed that Donald Trump was “clearly the winner” of the 2020 election.

Further nuances and details about these sorry episodes were reported in the Washington Post. https://wapo.st/3q4tP49 One element of that recital is the repetition of “no comment” and no response to inquiries from the press about the narrated events. Even those Justice Department officials who were steadfast in declining Trump’s overtures to overturn the election are apparently unwilling to address the revelations in the emails released by the Oversight Committee. And, quite expectedly, Mark Meadows and Trump himself had nothing further to say regarding their blatant attempts to overturn the election.

 What Should Happen Now

Trump and all of the people involved in attempts to suborn the Department of Justice should be indicted under 18 USC § 371,arrested and tried. It’s past time to put a stop to Trump’s campaign to undermine the central fabric of our democracy.

The US Criminal Code, 18 U.S.C. § 371, if violated when two or more persons conspire either to (a) commit any offense against the United States, or (b) defraud the United States, or any agency thereof in any manner or for any purpose. Both offenses require the traditional elements of conspiracy: an illegal agreement, criminal intent, and proof of an overt act.

In Hass v. Henkel, 216 U.S. 462 (1910) the Supreme Court stated:

The statute is broad enough in its terms to include any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of government . . . (A)ny conspiracy which is calculated to obstruct or impair its efficiency and destroy the value of its operation and reports as fair, impartial and reasonably accurate, would be to defraud the United States by depriving it of its lawful right and duty of promulgating or diffusing the information so officially acquired in the way and at the time required by law or departmental regulation.

In Hammerschmidt v. United States, 265 U.S. 182 (1924), the Court elaborated:

To conspire to defraud the United States … also means to interfere with or obstruct one of its lawful governmental functions by deceit, craft or trickery, or at least by means that are dishonest. It is not necessary that the Government shall be subjected to property or pecuniary loss by the fraud, but only that its legitimate official action and purpose shall be defeated by misrepresentation, chicane or the overreaching of those charged with carrying out the governmental intention.

A multitude of later cases confirm the ongoing vitality of those early definitions.

Proof of conspiracy requires knowledge by the perpetrators that the statements were false. The claims made by Trump, Meadows and others acting on Trump’s behalf were not just obviously false but bordered on hallucinatory. Trump’s repeated claims that there was “no way” he lost Georgia, for example, have no plausible factual predicate and after sixty lawsuit failures, no plausible factual basis has been presented. Trump’s claims were a blatant attempt to both “interfere or obstruct legitimate Government activity” and/or to “make wrongful use of a governmental instrumentality.”

The Manual of Model Criminal Jury Instructions: 8. Offenses Under Title 18, referring to 18 USC § 371,  states,

A conspiracy is a kind of criminal partnership—an agreement of two or more persons to commit one or more crimes. The crime of conspiracy is the agreement to do something unlawful; it does not matter whether the crime agreed upon was committed….

One becomes a member of a conspiracy by willfully participating in the unlawful plan with the intent to advance or further some object or purpose of the conspiracy, even though the person does not have full knowledge of all the details of the conspiracy. Furthermore, one who willfully joins an existing conspiracy is as responsible for it as the originators.…

An overt act does not itself have to be unlawful. A lawful act may be an element of a conspiracy if it was done for the purpose of carrying out the conspiracy. The government is not required to prove that the defendant personally did one of the overt acts.

A conspirator may not defend on the basis that he believed in fantasies when he made claims he knew were unjustified. In this case Trump and his henchmen tried to enlist the personnel and resources of the nation’s top law enforcement agency to accomplish what they failed to accomplish in the election, knowing to a moral certainty that their claims lacked a basis in reality. The conduct in question occurred almost two months after the election and after numerous lawsuits throughout the country failed to persuade a single judge (including some Trump himself appointed) that there was any basis for claims of election fraud that could change the result. Even Trump’s Attorney General Barr publicly rejected the fraud claims.

I am not alone in advocating strong and prompt action to stop Trump’s continuing effort to overturn the election . Jennifer Rubin suggested the following in the Washington Post on [https://wapo.st/3wz0sJM]:

    1.  criminal investigation into post-election actions in which officials were pressured to change election outcomes, including attempts at DOJ and at state officials such as Georgia Secretary of State Brad Raffensperger,
    2. create strict guidelines for Justice Department attorneys regarding efforts to undo lawful elections, including whistleblower protections and mandatory duty to report such actions to Congress,
    3. sue to stop the bogus so-called “audits” in Arizona and elsewhere,
    4. develop federal legislation to strengthen the Electoral Count Act, such as requiring a supermajority to challenge electoral votes.

Rubin’s final recommendation is probably the most important: establish an election-monitoring program for 2022 and 2024 that will assign Justice personnel to prevent voter intimidation, measure wait times, observe election counting, receive complaints and, ultimately, render a report on the functioning of elections in all 50 states.  That’s the most critical because Republicans throughout the country are legislating changes in local election procedures to enable Republican-controlled legislatures and political appointees to control and even overturn election results.

Following Republicans’ uniform refusal to hold Trump accountable for any of his many crimes in office, it is now clear that the fate of the nation’s election system is under systemic attack. It is no exaggeration to say that Republicans are prepared, without compunction, to adopt totalitarian tactics to establish themselves as the permanent ruling party in American politics. They seem to believe that the majority of Americans will accept such actions in peaceful submission. That, I believe, is a fundamental misjudgment, the consequences of which are unimaginably horrible. Among many other things, the United States is no longer separated from its enemies by oceans that take weeks or months to cross. A violent civil conflict would expose the country to attacks from which it could never recover.

In any case, there is no reason to sit idly by while the Republicans attempt in plain view to subvert the Constitution and establish a Republican dictatorship under Donald Trump. Aggressive and immediate actions can prevent the unthinkable and avert more drastic measures later. Trump and his co-conspirators should be indicted forthwith. Time and opportunity are wasting.

DOJ Defends Trump’s Defamation of Jean Carroll

The Twitterverse is aflame with indignation at the news that the Department of Justice has filed a brief in the case of E. Jean Carroll v Donald J. Trump “in his personal capacity.” DOJ’s brief argues that, based on federal statutory law and multiple court precedents, Trump’s statements that Carroll was lying when she claimed he raped her, while offensive and potentially defamatory, were “within the scope of his employment as President” and thus the United States of America in its sovereign capacity may, indeed must, replace Trump as defendant and Trump’s attorneys as his representatives in the litigation.

This was a genuinely shocking development, especially considering that neither Trump nor any of his co-conspirators have been brought to justice in any way in connection with the January 6 assault on the Capitol that he inspired and directed, nor for any of the acts of obstruction of justice that were described in detail in the Mueller Report. While it’s obviously true that many of the mob that attacked the Capitol have been arrested and charged with various offenses, and others are being hunted as we write, the suspicion is that there were many senior Trump aides, likely including some members of Congress, who were guilty of conspiring to cause the insurrection/sedition of January 6. Many people around the country are outraged that the DOJ would undertake to defend Trump in the Carroll defamation case.

I am among those outraged Americans. At the same time, I am, or was, a licensed attorney and, therefore, had to take the time to read the cases cited by DOJ to try to understand the legal basis for its stunning decision to take over Trump’s defense. I have completed my review of DOJ’s brief and the cases cited and will now set out my views about them.

Preliminary Statement

The position outlined by DOJ amounts to a per se position. That is to say, given DOJ’s articulation of its theory of the case, it is almost impossible to think of a situation in which a sitting president, accused of defamation, responds with, we’ll assume, outright lies constituting blatant overt defamation of the accuser and such responses would not be determined to be within the scope of the president’s employment by the federal government.

I will try to explain why this is wrong. Considerable simplification is necessary. You can read DOJ’s brief in full here: https://bit.ly/3g2Vfnr

Background to DOJ’s Analysis

Under the  federal statute known as the Westfall Act [technically, the Federal Employees Liability Reform and Tort Compensation Act of 1988] bars tort claims against government employees acting within the scope of their employment. Instead, such claims must be brought under the Federal Tort Claims Act, but the catch is that unless the government consents to be sued, defamation cases are barred and, in effect, even though the plaintiff may have been defamed, there is no legal remedy. The District Court succinctly explained it this way:

the FTCA specifically excepts libel and slander cases from the United States’s consent to be sued. Thus, if this really is a suit against the United States, it is one to which the United States seemingly has not waived its sovereign immunity.

As the District Court also noted in the Carroll case,

Because the Westfall Act operates where a lawsuit could have been brought against the United States under the FTCA, the statutes share the same threshold requirements. Thus, in order for the Westfall Act to apply, the defendant must be an “employee of the Government” who was acting within the scope of his or her employment.

Because the goal of all this is to protect federal employees who are claimed to have committed torts  (civil wrongs, such as libel) from having to defend suits when the employees were acting with the scope of their employment, the Attorney General may certify that challenged conduct was indeed within the scope of employment and, therefore, the United States becomes the defendant in lieu of the employee originally sued and the DOJ takes over the defense.

Certifications can be challenged, however, and that is what has happened in the Carroll case. Under the Westfall Act, the question of “scope of employment” is decided according to the law of the state with the closest connection to the events in question.

You can read the District Court opinion here: https://bit.ly/3cs3Huw

Facts in the Carroll case

Carroll claimed in a book that was reported in New York Magazine that Donald Trump raped her in a department store in the mid-1990s. About two hours after the magazine published, Trump, on his own initiative, issued a statement denying that he knew Carroll, asserting that the report was false and designed to sell books. Shortly thereafter, in response to a press inquiry and in an interview, Trump expounded at length on his position that Carroll had fabricated the entire story.

Carroll sued Trump in New York state court, claiming defamation. After ten months of litigation, DOJ decided to step in, removed the case to federal court and certified the scope of employment necessary to invoke the Westfall Act.

DOJ’s Argument

To some degree, DOJ’s framing of the issues stacks the deck in its favor. That is what litigants do when they file briefs arguing for their preferred outcome. We should not, therefore, be shocked that DOJ did that here. There are, however, fair questions to be raised about the approach DOJ took in its analysis of the legal issues.

I will not discuss the threshold question whether the President of the United States is a “employee of the federal government.” Carroll argued the negative; DOJ strongly disagreed and, I believe, has the better argument on that question. A large part of its brief was devoted to that issue.

The critical issue remains whether Trump’s unilateral declaration that Carroll was lying about the alleged rape was within the scope of Trump’s employment as president.

DOJ describes the key question as “whether a high-ranking elected official subject to close public scrutiny acts within the scope of employment when making public statements denying and responding to serious accusations.” And,

The FTCA and Westfall Act, and the common law tort principles that they incorporate, recognize that in some instances employees will commit torts—including intentional torts—for which the employer bears responsibility, even when the employer disapproves of or expressly forbids the tortious conduct. Conduct that falls within the scope of employment for purposes of the Westfall Act thus need not be authorized or acceptable. Indeed, the premise of a scope-of-employment analysis is that a tort may have been committed. Under the Westfall Act, even conduct involving “serious criminality,” … or which runs “contrary to the national security of the United States,” … may fall within the scope of employment. In making and defending a Westfall Act certification, therefore, the Department of Justice is not endorsing the allegedly tortious conduct or representing that it actually furthered the interests of the United States….[case cites omitted]

… the question in a Westfall Act case is whether the general type of conduct at issue comes within the scope of employment. Speaking to the public and the press on matters of public concern is undoubtedly part of an elected official’s job.

Stated differently,

The key inquiry is whether the conduct at issue is of the type an official generally performs, rather than whether the particular allegedly tortious act was improper.

And,

in undertaking a scope-of-employment inquiry, a court must look to “the type of act” the defendant took, rather than its “wrongful character.”

And,

What matters is whether the underlying activity itself was part of the employee’s duties.

DOJ then makes the great leap, sliding past the fact, not disputed to my knowledge, that Trump initiated his public attack on Carroll in the first instance. It was not in response to media inquiries but occurred almost immediately after the New York Magazine publication of her book excerpt. That is why I put bold-face type on that fact earlier. DOJ:

When members of the White House media asked then-President Trump to respond to Ms. Carroll’s serious allegations of wrongdoing, their questions were posed to him in his capacity as President. Likewise, when Mr. Trump responded to those questions with denials of wrongdoing made through the White House press office or in statements to reporters in the Oval Office and on the White House lawn, he acted within the scope of his office.

This is critically important because the cases cited by DOJ are all distinguishable from the Carroll situation. In the opinion in Council on American Islamic Relations v Ballenger (444 F3d 659), on which DOJ heavily relies, the Congressman’s comments about CAIR were made in the context of an explanation why the Congressman’s marriage was dissolving currently which was a matter bearing on his ongoing conduct while in office. Trump’s comments, initially given of his own volition and not in response to media questions, were about events that happened more than two decades ago.

In Does 1-10 v Haaland (973 F3d 591) the statements made by the Congressman were “intended to convey the politicians’ views on matters of public interest to their constituents,” namely an incident at Lincoln Memorial between students and a Native American veteran. Clearly that is not what the Trump-Carroll dispute involves.

In Operation Rescue National v. U.S. (975 F. Supp. 92), “Senator Kennedy said, in part, that the proposed legislation was needed because “we have a national organization like Operation Rescue has as a matter of national policy firebombing and even murder …” The District Court found that that Kennedy’s comments were within the scope of employment because,

Senator Kennedy was providing political leadership and a basis for voters to judge his performance in office—two activities that public officials are expected, and should be encouraged, to perform,”…. In this sense, the Senator’s employer was his constituents and he served them by fully informing them of his views and working to pass legislation he believed would benefit them.. [italics added]

The Operation Rescue analysis is particularly interesting. The court flipped the employment relationship to one in which Kennedy was working for his constituents. If so, the “scope of employment” analysis that would substitute the United States for Kennedy should have failed.

The bottom line is that the DOJ analysis leading to its decision to replace Trump with the United States government is pedestrian. It fails to account for important differences in the Trump case from the precedents cited. And, worse, it creates a nearly per se rule that immunizes all future presidents from slanderous/defamatory statements about disputed matters without regard to the time when those events occurred. DOJ’s analysis is a license for a sitting president to defame people he may have harmed long before taking office. Trump accused Carroll of lying on three separate occasions at least. Under DOJ’s interpretation of the Westfall Act, he could have spent hours more on national television at his rallies and in other public statements attacking her credibility and, after all that abuse, she would have no effective remedy. The United States has not waived sovereign immunity for defamation and there is nothing to suggest that it intends to do so in the future.

Admittedly, the case law opens the door to this approach, but DOJ did not have to walk through it. Given Trump’s history of grifting at the expense of the government, and thus of taxpayers, it is painful to see the Department of Justice bend over backwards to continue putting resources at his disposal while giving him, and future presidents, an essentially free hand.

The legal precedents that make this possible should be closely re-examined. The Westfall Act should be amended to put at least some fences around permissible expression by a sitting president who already has enormous advantages in the fight for public opinion. What happened to Ms. Carroll, regardless of the truth of the underlying allegations, should not be repeated. Republicans would, no doubt, oppose any legislation that might prevent Trump from doing what he does. The only hope for rectifying this miscarriage of justice is to replace more Republicans with Democrats in Congress.

 

Trump, Seriously

It is tempting to treat Donald Trump as a sick joke at this point. He sits in Trumplandia, aka Mar-a-Lago, spewing lies about the 2020 election and lashing out as his enemies, perceived or otherwise. He is apparently planning to hold more “rallies,” that many view as simply another way for Trump to scam his political base.

Twitter is ablaze with mocking commentary about Trump, his family who can’t resist tweeting about all the outrages against them, his political allies in the Republican Party who, terrified that Trump’s supporters will turn on them, are willing to sell the country down the drain to avoid his anger. Hundreds of the people he inspired, indeed directed, to attack the Capitol on January 6 are facing serious prison time, loss of jobs, financial ruin, loss of respect and more.

And, according to multiple reported sources, Trump is asking whether he is, as many of his supporters have declared, going to be restored to the presidency in August or perhaps later. The apparent basis for this is the collection of so-called “election audits” being conducted by a rag-tag bunch of Republicans in Arizona and other closely contested states.

As ludicrous as all this is, and as tempting as it is to believe that the left-leaning side of Twitter is justified in mocking all of it, there remains a serious undercurrent of concern that Trump’s followers will, once again, attempt to disrupt the government through a violent insurrection. A group of 100 scholars of history/democracy has signed a letter expressing their belief that anti-government sentiment inspired by Trump should not be simply dismissed. They and many other serious observers have drawn the parallels from history elsewhere as evidence that the threat of undoing the American republic and its democratic ideals is real.

Recall that, despite his gross mishandling of the pandemic, among many other failures, 74 million Americans voted to give Trump a second term. Those people were, for whatever reasons, unimpressed with Trump’s admission that he downplayed the seriousness of the coronavirus, undeterred by his overt racism, misogyny, criminality and indifference to the plight of so many – approaching now 600,000 dead from COVID-19. There is little reason to believe that the majority of those 74 million people feel any differently today. Many, apparently, would readily yield their democratic freedoms, such as the right to vote, in exchange for restoring Trump to power by whatever means necessary.

I restate these concerns because the threat is, in my judgment and that of many serious thinkers with far greater credentials than mine, very real.

An easy case can be made that Trump’s delusions of grandeur, his belief in so many unbelievable things (for example only, the idea that the “ election audits” can somehow put him back in power) are evidence of mental decline, perhaps severe mental illness, held up by his rage and inability to accept that, finally, he was defeated in a way that cannot be overcome by lawsuits, threats, bribes or anything … anything short of violence, that is. Violence is the one tool left for Trump, and there may well be large numbers of Americans prepared to engage in it if he tells them to do it. No different than many of the so-call Third World countries that Americans often ridicule as “not us.”

I am not, obviously I hope, suggesting there is a high probability that Trump will attempt to retake power through violence. On the other hand, we have already seen in the events of January 6 that he is not beyond doing it. His most ardent followers are easily misled. The stories of his increasing anger and irrationality from apparently reliable inside sources should, therefore, be taken seriously. I hope, and believe, that the current President is doing so but is just not giving oxygen to the idea that Trump is a real threat.

So, we can continue to have our fun on Twitter and Facebook by mocking Trump’s delusions, but everyone dedicated to Benjamin Franklin’s prescient declaration, “a republic, if you can keep it,” should remain alert and focused. Hopefully, the Department of Justice will, as it is intended to do, act aggressively against the members of the January 6 mob and show the world that we take our democracy seriously here. Any who would be its enemies, foreign or domestic, will be dealt with fairly but with severity appropriate to the nature of the challenge. It’s our republic and, yes, we mean to keep it.

I Am Never Wrong

I also never exaggerate. Believe me.

Why then do things not always work out the way I want them to? I realize that my unerring instincts were not one of the self-evident truths to which Thomas Jefferson referred in the Declaration of Independence, but still, things should be working out better because I’m always on the right side and always right.

How, for example only, can it be true that, as former Republican congresswoman Barbara Comstock said on Meet the Press, May 30:

.… many Americans“ still don’t realize how violent that [day] was. … People are still talking about [sic] these were like tourists. We need to have that full story out. It’s going to get out one way or the other.

[As noted in an opinion piece by Washington Post Digital Opinions Editor (??) James Downie. https://wapo.st/3uzxCqM]

Because I’m never wrong and that is one of the most improbable statements I’ve seen made about the January 6 Trump-directed attack on the Capitol and the 2020 election, I went to the Meet the Press transcript, conveniently provided by NBC at https://nbcnews.to/3uIo7pc in search of context.

[An aside: Chuck Todd opened the show with, “And a good Sunday morning. And I hope you’re enjoying this Memorial Day weekend, wherever you are.” Interested to note that the Republican Party has not demanded hysterically that Todd be removed, nor has it questioned his patriotism for suggesting that Memorial Day was a time that could be enjoyed. No, they saved that vitriol for Vice President Harris who tweeted almost exactly the same sentiment. You’d have thought she’d asked for help from Russia or something.]

Returning to what passes for reality, Ms. Comstock was on the show apparently because she “spent the week unsuccessfully lobbying Republican senators” to vote for a commission to investigate the January 6 insurrection. Her effort failed in part because Mitch McConnell, aka MoscowMitch on Twitter, was opposed: “There’s no new fact about that day we need the Democrats’ extraneous commission to uncover.”

Well, if McConnell is right about that, I must be wrong. Impossible. How, for example, would McConnell know that we already know everything that’s important to know about what happened on January 6? Hmmhh? How does he know that? That claim alone requires further investigation. If McConnell knows everything important there is to know about the Capitol attack, he should be examined under oath to find out what he knows. If he is lying and doesn’t know anything important, he’s going about his business in a curious way. The truth, of course, is that he doesn’t care what happened on January 6 as long as no one can pin it on him, his Congressional buddies in the far-far-right wing of the Republican Party or the former president whom McConnell worships as a living god.

For reasons that defy understanding, Chuck Todd described McConnell as “being honest publicly” in admitting that the greater the light shed on January 6, the worse for Republicans in the 2022 mid-terms. Todd: “That’s why he’s against it, period.” The irony, of course, is that Todd implied, correctly, that McConnell is rarely “honest publicly.” And if that’s true, it’s not a stretch to conclude that he’s rarely honest in private either. The truth  hurts. Or it should. Todd gets a C minus for this non-revelation. McConnell gets an F.

But let’s get back to Comstock’s assertion that “… many Americans still don’t realize how violent that [day] was….” She cites as proof that “People are still talking about [sic] these were like tourists.”

Completely wrong. “People” aren’t talking about the Trump-mob as if they were tourists. One Member of Congress said that. A Republican, of course. As for “many Americans,” I suggest Comstock is gaslighting us. After a bazillion words and hours-and-hours of videos have been produced on the subject, it is simply not possible that “many Americans” do not understand the violence of January 6. To be sure, many of them continue to assert that the mob was actually “antifa,” all of whom came dressed in Trump paraphernalia & carrying Trump flags, and if there were any Trump supporters in the mob, they were simply carried along with the crowd of antifas. Oh, and Black Lives Matter people also. BLM was also involved in the attack, wearing Trump gear and bearing Trump flags. Sure.

If it were true, and it’s clearly not, that the January 6 mob was antifa and BLM, why would the Republicans not be jumping at the chance to expose the truth about the attack instead of resisting the creation of a January 6 Commission at every turn? How would the Republicans explain the presence of Ashli Babbitt, the woman shot trying to force her way into the House chamber?

And if antifa and BLM were behind the attack, wouldn’t the Republicans want to know who planted the pipe bombs on January 5 at the RNC and DNC? The video shows a person in a hoodie whom many of us believe was a female whose form and movements suggest Lauren Boebert, a Republican Member of Congress. We have no hard evidence beyond the video, but you’d think that the Republicans would be anxious to put that question to rest and to pin it on antifa or BLM. But, no, they oppose any further investigation.

You’d have to be either dead, severely ill or a delusional Republican to be unaware of the violence of January 6. Comstock is wrong and I’m right. The Republicans in Congress know the awful truth about January 6 and are living under the delusion that they can somehow prevent the truth from being told. They know Trump is guilty. The Republicans are protecting Trump and almost certainly some of their own Members of Congress. Their claims about January 6 are as nuts as Marjorie Taylor Greene, aka MTGCuckoo, who claims school shootings were staged and … forget her, too bonkers to warrant more attention.

But I bet the Republicans in Congress and, formerly, the White House, are not sleeping too well, wondering who among the more than 400 people arrested so far is going to spill the beans to secure a lighter sentence. This issue is never going to go away. It will be like a weight, a yoke if you prefer, around the necks of every Republican running for office in 2022 and beyond. The real question is whether the Democrats will be sufficiently astute to use the weight effectively. It’s past time. Tick tock.

Has the Washington Post Gone Over to the Dark Side?

I was astonished and disturbed that the Washington Post would give a member of the January 6 insurrection streaming time on the Washington Post Live, but that’s exactly what it did with Senator John Hawley on May 4. The full transcript may be read here: https://wapo.st/3eT235C

I am doubly disturbed about this now that I am aware that it was the Washington Post that invited Donald Trump to sit at its table at the 2011 White House Correspondents Association Dinner at which then-President Barack Obama mercilessly and deservedly chided Trump for Trump’s role in the birther conspiracy regarding Obama’s birthplace. Trump was clearly very unhappy at being the butt of President Obama’s humiliating jokes. I’ll have more to say about that when I review Obama’s magnificent memoir, A Promised Land.

The interview at hand was conducted by Cat Zakrzewski, identified as a tech policy reporter and author of The Technology 202 newsletter. She was chosen, perhaps, because the program was billed as “The Missouri senator discusses breaking up big tech, antitrust reform and the post-Trump era for the Republican Party,” but it did not go well, in part because Zakrzewski opened the interview by testing Hawley on other subjects for which she was, it seemed, ill-prepared to cope with his aggressive style.

Zakrzewski opened the discussion by asking the open-ended question, “what responsibility do you feel for the cascading events that resulted on January 6th?” This presented Hawley with the perfect opening to gaslight, both-sides and what-about the country regarding his role. And he did. Hawley claimed that what he did was nothing compared to Democrats who had lodged objections to three past presidential elections.

True, as far it goes. But there are a few critical differences Hawley conveniently failed to mention. They are set out in detail at https://bit.ly/33kU7ES Suffice to say that in 2000, after the Supreme Court’s 5-4 extremely questionable decision to stop the Florida recount, it was Al Gore, the losing Democrat, who, serving as Senate President, enforced the rules to stop the objections. In 2004, overwhelming bipartisan votes rejected the objections lodged by just one member from each house. In 2016, it was again a Democratic Vice President who insisted that the rules be followed in the final certification and, absent any support in the Senate for objections, the tally in Trump’s favor was approved.

In 2020, on the other hand, Republicans brought, and lost, more than 60 legal challenges to multiple swing state outcomes. They never produced evidence of voter fraud on which the claim of “The Big Steal” was based. The entire claim was nonsense and Hawley knew it. His disassociation from facts mirrors the subordination of the entire Republican Party to the Big Lie by Donald Trump that the election was stolen.

Hawley then ran away with the interview in a late-in-coming exegesis on his disapproval of the January 6 mob attack on the Capitol, the same attack he encouraged with the fist pump that was photographed and seen by millions. And, again, Hawley attempted to minimize the attack by deflective references to other acts of violence to which he also objected, returning at the end to refer to the non-existent issue of “election integrity” that he insists was at the root of his objections to the Electoral College certification.

…in terms of having a debate about election integrity, I promised my constituents I would. I did, and I don’t regret that at all. That’s me doing my job.

When Zakrzewski challenged Hawley, noting that the Pennsylvania Supreme Court had dismissed challenges to the Pennsylvania count, Hawley rejected the Court’s decision, claiming it was not on the merits, was partisan,  that the court “also interfered with the count itself,” and was “in violation of their own precedent.” In other words, Hawley rejected the action of the highest court in Pennsylvania because he disagreed with it and proceeded to demand the overturning of the election in that state. So much for Republican devotion to “law and order.” Zakrzewski barely got a word in.

On the subject of a national 9/11 style commission to investigate the January 6 attack, Hawley, being the loyal Trumpist, objected to focusing on the attack and argued that the commission should instead address the security failures that allowed the attack to take place. Those issues, however, have already been investigated and Hawley has no explanation, other than deflecting from the core issues of the attack and its inspiration by Trump, for expanding the commission’s scope to other issues. It doesn’t take much imagination to foresee how a commission with a multiple-element mandate would be derailed by Republicans who clearly intend to protect Trump from accountability for his role in directing the assault. Just watch any hearing in which Rep. Jim Jordan participates and you’ll understand.

When again asked about the attacks on Capitol Police, Hawley again deflected to other incidents, mentioning for the second time the Nation of Islam. No objection from Zakrzewski. When asked about the fist-pump incident, Hawley, for the third time brought up BLM protests and riots.

The interview then shifted to other subjects related to the power of tech companies and Hawley’s proposal to break them up. Hawley was able to talk over Zakrzewski on every issue. It brought to mind the first Biden-Trump debate in which Trump simply ran over the moderator throughout the program. After each Hawley monologue, Zakrzewski just moved on to the next topic. But when she tried to explore the effects of the Big Lie about the stolen election, Hawley just continued his rant about political censorship by tech companies. She let him get away with it and turned to the then-pending plan to remove Liz Cheney from leadership to which Hawley demurred (she’s in the House so their problem).

The “interview” ended with Zakrzewski asking “would you support former President Trump running again for office in 2024?” Hawley again deflected, saying Trump’s decision was his to make, Hawley would never give him advice, etc. In short, no answer. Interview over.

Other than providing Hawley a platform from which to practice his both-sides deflection routines, what did the Washington Post accomplish by giving this supporter of January 6 this exposure? Whatever it was, it didn’t work. Instead, Hawley was given the opportunity to promote himself and his  “oh, no, it wasn’t me. I’m opposed to violent protest in all forms. Did I mention Portland? I was just doing what my constituents wanted me to do. Oh, yeah, I’m just a humble servant of the people of Missouri, though I reserve the right to reject the rulings of the highest courts in states like Pennsylvania and vote to overturn elections whose outcomes I don’t like. Did I mention antifa? Riots? Yeah, I’m for law and order unless it means following the decisions of the highest courts in a state whose election result I don’t like.”

If the Post is fooled by Hawley’s professed devotion to protecting free speech and the First Amendment, we are in even more serious trouble than I have thought. The Post should know by now that it cannot escape the fascist propensities of the rightwing politicians who shout at every opportunity, “fake news, enemy of the people” about the mainstream media. I fully accept that the Post should report genuine news – the Capitol attack on January 6 was news – but it should stay out of the business of creating news by giving platforms to the very people who would destroy the free press in a heartbeat if given the power. @WashingtonPost, do better. Before it’s too late.

Faux Election Integrity Fever Identified in Texas & Florida

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?