Tag Archives: Trump

What Do You Call a Collection of Traitors & Cowards?

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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

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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

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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

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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

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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?

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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

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

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

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

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

The NY Times online report regarding Texas notes:

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

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

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

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

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

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

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

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

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

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

Health Care – No. 31

Education – No.34

Opportunity – No. 39

Economic Opportunity – No. 40

Equality – No. 45

Crime & Corrections – 37

Natural Environment — 40

Population without Health Insurance

                   Texas 24.5 %

                  National Average 12.9 %

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

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

Health Care                25

Infrastructure            20

Opportunity               33

Crime & Corrections  26

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

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

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

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

Biden Speaks & Republicans Whine

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President Biden gave a long address to a joint session of Congress. Within minutes, Republicans cynically rolled out Republican Senator Tim Scott from South Carolina to criticize him.

The genius of Biden’s speech was that it was presented largely in plain speak, addressed to the real audience, the American people, rather than the collection of politicians in the chamber with him. Biden went big. His proposals were designed to say to the people: these are the benefits you can have  that will make America competitive in the 21st Century and that will reward you with good-paying jobs, better educational opportunities and improved/more affordable healthcare, among other things. This is bold stuff, designed to look forward and not back to the mythological past favored by white supremacists. Being the old pro that he is, I have no doubt Biden is quite aware of the challenges his agenda faces from the Republican Party of No.

Republicans sat like statues throughout, resisting the slightest show of support for anything Biden had to say, no matter how much it might address real problems of people not included in the richest upper class to whom the GOP owes its primary allegiance. During Biden’s speech, McConnell could have been replaced by a blow-up doll and no one could have distinguished the doll from the immobile person.

The Republican official response, delivered by Sen. Scott, was entirely predictable: NO. NO. NO. You can read the NPR fact-check here if you like. https://n.pr/3eDUCPC  I will not waste my time or yours with the details.

Suffice to say that the Republicans are in a bad place here. They are going to adopt the same agenda of obstruction they used against President Obama even as the country and the world were on the precipice of a major economic catastrophe. Republicans really didn’t care. Mitch McConnell made clear the agenda was to make Obama a one-term president, regardless of the cost to the country.

That plan failed. But we got Trump instead, perhaps because many Americans believed that Obama’s election represented a real turning point away from the country’s checkered past and that voting wasn’t necessary. It doesn’t much matter now. Trump was elected, almost certainly with the help of foreign powers, and the rest is history. We are approaching 600,000 dead Americans because Trump downplayed the virus and refused to accept the science. Yeah, sure, he started Operation Warp Speed, but it was going nowhere fast when Biden took over. Now over 200 million doses of vaccine have been injected in Biden’s first 100 days in office.

Turning to the Republican rebuttal, and at the risk of touching on touchy subjects, the fact is, I believe, that the Republican Party, in an effort to blunt accusations that it has become the party of white supremacy, produced Sen. Scott to assure us “it ain’t so.” ­The data strongly indicates it is so, but OK, what else could we expect from their chosen mouthpiece? Other than the standard Trumpist party lines, he had no real data to offer in support of his gaslighting generalizations.

Scott assailed President Biden with the all-too-familiar Republican trope that Biden promised to unite the country, be bi-partisan, “lower the temperature” etc. and so on. Ad nauseum. “We need,” Scott said, with rhetorical flourish:

policies and progress that bring us closer together. But three months in, the actions of the president and his party are pulling us further and further apart.

I won’t waste your time tonight with finger-pointing or partisan bickering. You can get that on TV anytime you want. I want to have an honest conversation about common sense and common ground. About this feeling that our nation is sliding off its shared foundation, and how we move forward together.

But first, a word about me, me and me. Nobody knows the trouble I’ve seen. But, surprise, God saved me. And He will save you too if, four or five paragraphs later, we had opened our schools the way other (unnamed) countries did.

Any time a Republican politician tells you he/she wants to have an “honest conversation,” secure your wallet and your mind. Scott saying he’s not going to engaged in finger-pointing or partisan bickering is just cognitive priming in the hope you won’t notice that is exactly what he is doing.

The English translation of Scott’s rebuttal is simple enough: the stimulus bill Biden got passed was not the bill Republicans wanted so we voted against it. “Closer together” means doing things the Republican way, period: it’s not bi-partisan unless it’s the Republican agenda. If Democrats did things our way, we’d be all in on bipartisanship. But if you won’t let us control all the legislation, we’ll just whine about lack of bipartisanship and vote ‘no’ on everything.

I evaluated his statement in categories, as a primer to what was really going on. His statement was comprised of 1908 words in 39  paragraphs (New York Times version of transcript).

My categories were:

Racial messaging (overt or covert)

Trigger words/phrases & religious messaging for Republican base

            Anti-partisanship/reverse partisanship

Victimhood

Racial messaging accounted for 14 paragraphs and 778 words, or 36 percent of the total paragraphs and 40 percent of the total words in Scott’s statement. The central message was “I’m Black and I have suffered as a Black man in America so you can trust me when I tell you Republicans are not racist and neither is America.” Perhaps, but likely not, accidentally, he used one of Donald Trump’s standard lines, “believe me,” and claimed his efforts to fund police body cameras  and his “even bigger police reform proposal”  were blocked by Democrats who even rejected debate by using the filibuster. Implication: the real racists are Democrats.

The problem with that song-and-dance number is that Scott’s legislation was rejected by Democrats in 2020 because it did not include bans on chokeholds or “no-knock” search warrants and did not address qualified immunity that prevents effective lawsuits against police officers using excessive force. Democrats saw the bills as non-starters because Republicans made clear that the protective umbrella of qualified immunity was non-negotiable. Our way or the highway. So much for bipartisanship.

My second category includes classical Republican talking points/trigger words & phrases/religious references to appeal to the GOP base. These accounted for a small share of the total words, but were center cut from the Donald Trump playbook and calculated to get the biggest rise from the base:

“Even more taxing, even more spending, to put Washington even more in the middle of your life — from the cradle to college”

“Weakening our southern borders and creating a crisis is not compassionate”

 “The beauty of the American dream is that families get to define it for themselves”

“Washington schemes or socialist dreams”

“America is not a racist country”

            “Washington power grab”

Details were sparse but when you’re throwing fresh meat at the mob, you don’t need them.

Scott’s assault on the bona fides of Biden’s appeal to unity and bipartisanship accounted for 16 paragraphs and 621 words. Race-related messaging thus won the day as a share of Scott’s statement.

He also played the victim card. Since he remains a disciple of Donald Trump, asserting victimhood is hardly a surprising move. It accounted for six paragraphs and 278 words.

Finally, Scott closed out his statement with a blessing, comprised of 2 paragraphs and 141 words. This seems bizarre because while Scott is reportedly an evangelical Protestant, he is not ordained as a minister.

So, there you have it. No doubt the Republican base will love Scott and believe that he effectively showed up President Biden. More important, however, is the question how this struggle is going to play out with the American population as a whole. Biden has shown the country what is possible, what they can have if they have the courage to get it. Republicans will continue to fulfill their role of obstruction with a side of commitment to the wealthiest Americans whose financial welfare is the prime mover of Republican philosophy and policy.

If Republicans really wanted bipartisanship, they would stop saying ‘no,’ to almost everything Democrats propose. They have now undergone their standard re-conversion back to “conservative” principles, by demanding smaller government, less regulation and rejection of science. With those as their touchstone, there is little prospect for bipartisan solutions to anything resembling a real problem. Biden has offered the people a roadmap to a future of possibilities and promise for better lives in an increasing complex and uncompromising world. The question now is: how will they choose?

 

Congress is Failing the Country Again

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The Washington Post reports that the prospects for Congress establishing an independent commission to investigate and report on the January 6 attack on the Capitol are dimming. https://wapo.st/3v3Nh2o In a report that could have emerged from Alice in Wonderland, the Post says,

Congress’s pursuit of an independent investigation into the Jan. 6 insurrection is facing long odds, as bipartisan resolve to hold the perpetrators and instigators accountable erodes, and Republicans face sustained pressure to disavow that it was supporters of former president Donald Trump who attacked the U.S. Capitol.

Once again, it seems, “political interests steadily overtake lawmakers’ appetite to push for accountability.”

Apparently, the Republicans in the House are demanding “equal representation” and “subpoena authority” despite their position as the minority party in Congress. If Republican resistance continues, which seems a virtual certainty, Speaker Pelosi reportedly could appoint a “select committee” or allow the multiple Congressional committees already bogged down in multiple proceedings. Republicans have undermined efforts to move ahead in the manner of the post-9/11 commission by demanding, in classic deflection style, that any such commission also investigate “left-wing extremism” which would include the “antifa” movement.

Republican resistance is reportedly still driven by the bizarre reality that “a majority [of rank-and-file Republicans] still believe the election was stolen from Trump.”

Norm Ornstein, an emeritus scholar with the American Enterprise Institute, was quoted in this confession:

“The political imperative at this point is to discredit any investigation, to deny any ties either to Donald Trump or to the members of Congress . . . who either helped to plan the [riot] or helped to incite it.”

The Republican strategy is apparently working, as

“public hearings held by the House Judiciary and Armed Services committees have devolved into shouting matches, as GOP members accuse Democrats of ignoring threats from the far left, while Democrats accuse them of equivocating to distract from the fact that far-right extremists have become an active force in the Republican Party.”

Much of the current focus appears to be on the question of how the government security apparatus was caught off-guard and failed to respond properly to the unfolding threat to the Capitol. Those are certainly important questions that must be addressed. But the most significant forward-looking issue is how the attack came to pass: who planned it, who inspired it, who coordinated it, who supported it? Those questions include not only the active participants in the insurrection but the critical question whether Members of Congress were involved in any actions related to planning and/or executing the attack. The purpose of the assault was to stop the Constitutional process of final accounting for the election outcome and certification of the Electoral College votes. There are numerous indications of involvement by Members of Congress in both houses.

It is time to move this process forward rapidly and to focus on the key questions. It is obvious now that the Republican Party is 100 percent dedicated to preventing any substantive accountability for the attack that led to multiple deaths, many severe injuries and exposed members of Congress to possible capture and even death. Recall the battle cry of the insurrectionists: “Hang Mike Pence!”

The stalling and deflection by the minority party are unconscionable. It’s time for the Biden administration to take charge and get his task done. There is no space for “bipartisanship” here – Republicans have no interest in that, so it’s fine to ignore them.

The administration should bring this to a head by having the Justice Department take charge of the investigation on a top priority basis. Every passing month with no answers to the complicity of the Republican Members of Congress makes it that much harder to get political accountability in the mid-term elections as memories fade and new bright objects overtake the public consciousness of the threat to democracy that the January 6 attack represented. If Members of Congress are culpable, action should be taken against them promptly. They do not enjoy the same privileges regarding indictment and arrest for criminal conduct as does the President. https://bit.ly/3n1lH2H  Gravel v. United States, 408 U.S. 606 (1972).

Attacks on the central elements of our democracy cannot be tolerated. The First Amendment allows Americans in most circumstances to advocate many types of change in the operation of government. It does not sanction violence to stop the execution of Constitutional duties related to national elections. That is what was attempted on January 6 and justice must be brought to bear on the perpetrators inside as well as outside the Congress.

Great Expectations Meet Legal Reality

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Politico appears to have joined the ranks of journalists who, having lost their matinee idol (Donald Trump), have turned their attention to throwing dirt at the Biden administration. It’s apparently hard doing political journalism when the President is a normal human being who actually works at his job and doesn’t spend all day demeaning others while praising himself.

In any case, Politico reports that for some reason, not entirely clear to me, the Biden administration may be embarrassed by the prospect that many of the insurrectionists who invaded and debased the Capitol on January 6 may not do much, if any, hard jail time. https://politi.co/3wbBBMj

There is nothing new or surprising about that possibility and no reason for the Biden administration to be “embarrassed” about it.

This click-bait story suggests that it was reasonable to believe that every one of the crazed mob of Trump supporters would be charged with felonies and imprisoned under very long sentences for their crimes. At the same time it notes that the many “lower-level cases” are clogging the District of Columbia federal trial court where all these cases are being “heard.” Those lower-level cases involve misdemeanor charges that typically plead out.

The reason for this is not ‘justice.” If justice were to be had here, all of the people who invaded the Capitol to stop the final approval of Biden’s election victory would be charged with felonies and required to plead to deals involving meaningful jail time.

But practical reality governs in these situations. Mass arrest scenarios rarely lead to jail time for  many who are swept up in the arrest net. This has been true for as long as mass arrests have occurred. https://en.wikipedia.org/wiki/Mass_arrest  The court system simply cannot handle trials of hundreds of people on top of its already heavy case load.

The result is that “deals” are made between prosecution and defense to an agreed sentence, often probation for first-offenders when only property damage is involved, in exchange for a guilty plea that avoids the time and cost of a jury trial. This is true almost regardless of the circumstances, although, as a society, we generally do not treat white people who commit “light crimes” with the harshness meted out to minority defendants.

There is, of course, an unusual amount of visual evidence in these cases — hundreds of hours of video of the crime scene. While the videos show a staggering amount of violence by the mob that led to dozens of injuries to police, it is apparently also true that many of those identified and arrested so far were not actually engaged in hand-to-hand combat with the Capitol Police or in physical desecration of the building. These people allegedly just “went along for the ride.” If so, they almost certainly will end up “pleading” to some misdemeanor offense and may indeed be spared jail time. That is an outrage given the threat to our democratic system that they attempted to achieve, but the judicial system simply cannot cope otherwise.

Politico takes this simple reality to the extreme of making a “federal case” out of nothing in stating that,

The prospect of dozens of January 6 rioters cutting deals for minor sentences could be hard to explain for the Biden administration, which has characterized the Capitol Hill mob as a uniquely dangerous threat. Before assuming office, Biden said the rioters’ attempt to overturn the election results by force “borders on sedition”; Attorney General Merrick Garland has called the prosecutions his top early priority, describing the storming of Congress as “a heinous attack that sought to disrupt a cornerstone of our democracy, the peaceful transfer of power to a newly elected government.

Justice Department prosecutors sent expectations sky-high in early statements and court filings, describing elaborate plots to murder lawmakers — descriptions prosecutors have tempered as new details emerged.

Nonsense. There are plenty of serious cases of violence that will lead to meaningful jail time and other penalties for the perpetrators. Many felons remain to be identified and arrested. This is not going away. It was a “uniquely dangerous event.”

The report is accurate in noting the time pressure on the prosecution, but again this is not unusual in mass-arrest cases. Speedy trial is a constitutional right, sometimes ignored, but a right nonetheless. And we can be sure that these virtually all-white “protestor insurrectionists” will get every advantage to which they are accustomed.

Other than the target of this particular mob, and the inspiration for their attack (the former president), there is nothing especially unusual about these cases. Mayhem has degrees just like other violence and the law treats each case individually. It’s likely that violent “protestors” in Portland and other places are facing the same issues, and opportunities, as the insurrectionists who attacked the Capitol.

I, at least, deeply hope that none of the Capitol attackers is going to receive what Politico refers to as a wrist-slapping. This attack was not a response to a prior event (as, for example, the protests after George Floyd’s murder) – it had a specific goal: to stop Congress from carrying out its constitutional duty to certify the election. The article refers to people “who walked into the building that day without authorization.” That, I  believe, fails to recognize the gravity of what was happening that January 6. Few, if any, of the insurrectionists just “walked into the building” – the proof is in the videos.

Politico says, “the Justice Department will soon be in the awkward position of having to defend such deals, even as trials and lengthy sentences for those facing more serious charges could be a year or more away.” Again, there is nothing “awkward” about this, beyond the simple inability of the judicial system to cope, in a constitutional democracy, with mass-type arrests, whether all at once or individually later for crimes that occurred together. Politico adds to its hyping of a non-existent issue by noting that Trump continues to lie about what happened on January 6, claiming this adds to the “political awkwardness” of the situation.

Wrong. Trump will continue lying and blathering to his last breath. Except for his die-hard political base, no serious person thinks Trump has any substantive contribution to make to the American political situation. It is certainly and indisputably true that Trump can be expected to keep lying about January 6 in an effort to thwart what he rightly fears as criminal prosecution of himself personally. No one is more deserving.

Unfortunately for journalism, Politico uses a common Trump formula in referencing “what many in the court system are referring to as “MAGA tourists,” a phrasing of unknown provenance (who, actually, are the “many” who call the insurrectionists “MAGA tourists?”) and calculated to diminish the significance of what happened on January 6.

Finally, I note that some of the January 6 defendants continue to run off at the mouth on Twitter and other social media, claiming they did nothing wrong and remain proud of their actions that day. Those defendants should face the full weight of the law – no deals for them. Let them stand trial if they like and face sentencing for their January 6 conduct and their continuing indifferent or outright hostility to the rule of law. Unless the judges in these cases want a repeat of January 6 or worse, they had better take a direct approach to such cases that are deserving of no leniency or special treatment.