Tag Archives: Trump

Trump’s Documents – Trump’s Crimes

By now you are likely aware that Trump’s attempts to prevent the disclosure of emails and other documents related to his attempted coup on January 6 are failing across the board. This is clearly the correct outcome. The observations of one judge, in particular, have attracted some news attention but, as usual, have disappeared into the fog of astonishing disclosures about Republican obstruction and corruption in Congress and elsewhere.

I am therefore using this forum to share with you a few quotations from the March 28 opinion in Eastman v Thomson, the federal District Court opinion that heard Trump attorney John Eastman’s claims of attorney-client and work product privilege for a tranche of 111 emails demanded by the January 6 Select Committee. These messages related to Eastman’s role, and Trump’s actions, in Trump’s legal and political strategy regarding the results of the 2020 election. [NB: footnotes and citations, the bane of effective communication, have been omitted; my helpful headings are underscored & italicized; opinion points of emphasis bolded by me] [NB2: the opinion is 44 pages long; you can read the whole thing here, https://bit.ly/3tZ0tax , but the gist is set out below. I read it so you don’t have to.]

There Was No Election Fraud in 2020

In the months following the election, numerous credible sources–from the President’s inner circle to agency leadership to statisticians–informed President Trump and Dr. Eastman that there was no evidence of election fraud.

… after “dozens of investigations, hundreds of interviews,” the Department of Justice had concluded that “the major allegations [of election fraud] are not supported by the evidence developed.”

By early January, more than sixty court cases alleging fraud had been dismissed for lack of evidence or lack of standing.

Eastman’s Plan to Overturn the Election

Ultimately, Dr. Eastman conceded that his argument was contrary to consistent historical practice, would likely be unanimously rejected by the Supreme Court,38 and violated the Electoral Count Act on four separate grounds.

Knowing that his legal theories were invalid, Eastman addressed the mob that assembled on January 6 at Trump’s invitation:

We no longer live in a self-governing republic if we can’t get the answer to this question. This is bigger than President Trump. It is a very essence of our republican form of government, and it has to be done. And anybody that is not willing to stand up to do it, does not deserve to be in the office.

But,

Before the Joint Session of Congress began, Vice President Pence publicly rejected President Trump and Dr. Eastman’s plan.

Then, and then, they threw themselves on the railroad tracks … [NB3: paraphrase of 1969 song, Along Came Jones]

Even as the rioters continued to break into the Capitol, President Trump tweeted at 2:24 pm: “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!”

As the attack progressed, Dr. Eastman continued to urge Vice President Pence to reconsider his decision not to delay the count.

The rampage on January 6 “left multiple people dead, injured more than 140 people, and inflicted millions of dollars in damage to the Capitol.”

As the House of Representatives later wrote, January 6, 2021 was “one of the darkest days of our democracy.”

Refusal to Produce Documents to January 6 Select Committee

Dr. Eastman declined to produce any documents or communications to the Select Committee and asserted his Fifth Amendment privilege against production.67 During his deposition, Dr. Eastman asserted his Fifth Amendment privilege 146 times.

NB4: You know, the Fifth Amendment that says you don’t have to testify to facts that might incriminate you. The government must find someone else to incriminate you. Or some documents ….

The plan proposed by Dr. Eastman’s memo involve actions by the Vice President without recourse to the courts.

Litigation was never Dr. Eastman’s motivation for planning the events of January 6, perhaps because, as he conceded, his legal theories would be rejected “9-0” by the Supreme Court.

The true animating force behind these emails was advancing a political strategy: to persuade Vice President Pence to take unilateral action on January 6.

Trump Committed Crimes

The crime-fraud exception applies when (1) a “client consults an attorney for advice that will serve [them] in the commission of a fraud or crime,” and (2) the communications are “sufficiently related to” and were made “in furtherance of” the crime. It is irrelevant whether the attorney was aware of the illegal purpose or whether the scheme was ultimately successful. The exception extinguishes both the attorney-client privilege and the work product doctrine.

The Select Committee alleges that President Trump violated 18 U.S.C. § 1512(c)(2), which criminalizes obstruction or attempted obstruction of an official proceeding.

President Trump attempted to obstruct an official proceeding by launching a pressure campaign to convince Vice President Pence to disrupt the Joint Session on January 6.

Together, these actions [meetings at White House, statements to the January 6 mob] more likely than not constitute attempts to obstruct an official proceeding.

Dr. Eastman does not dispute that the Joint Session is an “official proceeding.”

A person violates § 1512(c) when they obstruct an official proceeding with a corrupt mindset. The Ninth Circuit has not defined “corruptly” for purposes of this statute. However, the court has made clear that the threshold for acting “corruptly” is lower than “consciousness of wrongdoing,” meaning a person does not need to know their actions are wrong to break the law. Because President Trump likely knew that the plan to disrupt the electoral count was wrongful, his mindset exceeds the threshold for acting “corruptly” under § 1512(c).

President Trump and Dr. Eastman justified the plan with allegations of election fraud—but President Trump likely knew the justification was baseless, and therefore that the entire plan was unlawful.

President Trump’s repeated pleas for Georgia Secretary of State Raffensperger clearly demonstrate that his justification was not to investigate fraud, but to win the election.

President Trump likely knew the electoral count plan had no factual justification.

The plan not only lacked factual basis but also legal justification.

Vice President Pence “very consistent[ly]” made clear to President Trump that the plan was unlawful, refusing “many times” to unilaterally reject electors or return them to the states.

Dr. Eastman argues that the plan was legally justified as it “was grounded on a good faith interpretation of the Constitution.” But “ignorance of the law is no excuse,” and believing the Electoral Count Act was unconstitutional did not give President Trump license to violate it. Disagreeing with the law entitled President Trump to seek a remedy in court, not to disrupt a constitutionally-mandated process. And President Trump knew how to pursue election claims in court—after filing and losing more than sixty suits, this plan was a last-ditch attempt to secure the Presidency by any means.

The illegality of the plan was obvious.

… Court finds it more likely than not that President Trump corruptly attempted to obstruct the Joint Session of Congress on January 6, 2021.

… the evidence shows that an agreement to enact the electoral count plan likely existed between President Trump and Dr. Eastman.

President Trump likely knew that the electoral count plan was illegal.

President Trump continuing to push that plan despite being aware of its illegality constituted obstruction by “dishonest” means under § 371.

Dr. Eastman himself repeatedly recognized that his plan had no legal support.

Dr. Eastman admitted more than once that “his proposal violate[d] several provisions of statutory law….”

Dr. Eastman’s views on the Electoral Count Act are not, as he argues, a “good faith interpretation” of the law; they are a partisan distortion of the democratic process. His plan was driven not by preserving the Constitution, but by winning the 2020 election.

The evidence shows that Dr. Eastman was aware that his plan violated the Electoral Count Act. Dr. Eastman likely acted deceitfully and dishonestly each time he pushed an outcome-driven plan that he knew was unsupported by the law.

President Trump’s acts to strong-arm Vice President Pence into following the plan included meeting with and calling the Vice President and berating him in a speech to thousands outside the Capitol.

Based on the evidence, the Court finds that it is more likely than not that President Trump and Dr. Eastman dishonestly conspired to obstruct the Joint Session of Congress on January 6, 2021.

Finally,

Dr. Eastman and President Trump launched a campaign to overturn a democratic election, an action unprecedented in American history. Their campaign was not confined to the ivory tower—it was a coup in search of a legal theory.

At most, this case is a warning about the dangers of “legal theories” gone wrong, the powerful abusing public platforms, and desperation to win at all costs. If Dr. Eastman and President Trump’s plan had worked, it would have permanently ended the peaceful transition of power, undermining American democracy and the Constitution. If the country does not commit to investigating and pursuing accountability for those responsible, the Court fears January 6 will repeat itself.

The Stench from the Bench

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The Washington Post reported recently that Supreme Court Justice Neil M. Gorsuch would join Mike Pence, Ron DeSantis, and Trump’s White House press secretary Kayleigh McEnany in speaking to the Federalist Society. They did and the media, as reported, was excluded. https://wapo.st/3 Jua6Dz Even rev.com, the repository of many political speeches, could not acquire a transcript.

I have it on pure speculation, good enough in a Trumpworld, that in a rare act of dexterity, Mike Pence got off his knees and stood erect at the podium during his portion of the show. One wonders how he was received given his shocking one-time decision to comply with the Constitution and the law in connection with Trump’s ongoing attempt to overturn the 2020 election by whatever means will work for him, including violence against the police.

A related question is hanging regarding DeSantis who swings between sycophantic adoration of Trump and hints that he may run against Trump in 2024. McEnany has no such problem. She’s not running for anything but the money. Her connection with the truth is so remote she could satisfy her obligations by just sending a copy of Big Little Lies to sit on the podium during Pence’s talk.

This wasn’t Gorsuch’s first such speech. He did a victory lap at the Federalist Society in November 2017 just after his confirmation to the Supreme Court. https://politi.co/3LySkRt Not surprisingly, perhaps, the only other Justice present then was Justice Alito who has spoken to the Federalists multiple times. In Gorsuch’s 2017 speech, he,

vowed to continue to expound the group’s favored judicial philosophies from his new post. “Originalism has regained its place and textualism has triumphed and neither is going anywhere on my watch,” the justice vowed.

Very interestingly, neither the Supreme Court nor the Federalist Society would say whether Gorsuch was paid to appear and, if so, by whom. Why, I wonder, would they not answer that simple question if he were not going to be paid? Refusing to answer in this context is analogous to pleading the 5^th Amendment.

To be fair, it is reported that “liberal justices” are also “often guests of progressive organizations such as the American Constitution Society.” Despite all of that, or because of it, the justices are making public statements defending the high court’s impartiality and integrity. Retiring Justice Stephen Breyer wrote in his book that,

“Political groups may favor a particular appointment but once appointed a judge naturally decides a case in the way that he or she believes the law demands. It is a judge’s sworn duty to be impartial, and all of us take that oath seriously.”

Well, maybe not “all of us.” The sordid conduct of some Justices has now reached the nadir of ethical practice. Justice Clarence Thomas, for example, has defended the court’s “independence” during a lecture at the University of Notre Dame, but failed to mention that his wife, Ginni Thomas, is an avowed right-wing sycophant and Trump lover. She has been widely reported to have played a role in the January 6 attack on the Capitol, has argued far and wide that the 2020 election was stolen, and on and on. And now, we have reports that Ms. Thomas texted multiple times with Mark Meadows, then serving as Chief of Staff to Trump, that Meadows should do everything in his power to overturn the election.

As you likely recall, Thomas was the sole dissenting vote in the case about whether Trump had to turn over documents to the January 6 Select Committee. In Thomas’s participation in that case, there was no mention of his wife’s activities and no apparent concern about the grotesque conflict of interest, or appearance thereof. He apparently thinks he has no disclosure obligations, no recusal obligations regarding participation in cases in which his spouse is actively and aggressively interested.

Something is rotten here – ‘here’ meaning ‘right here,’ not Denmark – and the stench, has only gotten worse in recent days.

Lest we forget, judicial “ethics” also did not stop conservative icon Antonin Scalia from taking trips paid for by … someone not him. Indeed, according to New York Times reporting, Justice Scalia took more than,

258 subsidized trips … from 2004 to 2014. Justice Scalia went on at least 23 privately funded trips in 2014 alone to places like Hawaii, Ireland and Switzerland, giving speeches, participating in moot court events or teaching classes. A few weeks before his death, he was in Singapore and Hong Kong. [https://nyti.ms/3Dk8fPE]

A private individual provided Scalia with a free room at his ranch even though he had business before the Supreme Court. Again, according to the Times,

legal experts said they saw nothing wrong with Mr. Scalia’s accepting a free room at Mr. Poindexter’s lodge. While the Ethics in Government Act, adopted after Watergate, requires high-level federal employees, including judges, to fill out disclosure reports for reimbursements worth more than $335, the visit to the ranch might not have required a formal disclosure, because accommodations provided by a private individual are exempt under current rules.

WHAT????

All my years in private practice I fretted over conflicts of interest issues and Supreme Court justices can accept luxury hotel accommodations if they’re provided by “private individuals?!?!” No wonder “Supreme Court members took 1,009 paid trips between 2004 and 2014.” According to my calculations, that averages to 11 trips per year per Justice. And these are not trips to Bridgeport.

The destinations often are luxurious, including the Casa de Campo Resort in the Dominican Republic, where Justice Samuel A. Alito Jr. was listed as a speaker for an event last February, or Zurich, where Justice Scalia traveled at least three times on privately funded trips.

In 2011, a liberal advocacy group, Common Cause, questioned whether Justice Scalia and Justice Clarence Thomas should have disqualified themselves from participating in the landmark Citizens United case on campaign finance because they had attended a political retreat in Palm Springs, Calif., sponsored by the conservative financier Charles G. Koch. Mr. Koch funds groups that could benefit from the ruling. The disclosure report filed by Justice Thomas made no mention of the retreat. It said only that he had taken a trip, funded by the Federalist Society, a conservative legal group, to Palm Springs to give a speech.

Over roughly a decade, Justice Scalia took 21 trips sponsored by the Federalist Society, to places like Park City, Utah; Napa, Calif.; and Bozeman, Mont. The Federalist Society also paid for trips by Justice Alito during that period, but not for any liberal justices, the disclosure reports show.

The disclosure reports, such as they are, reportedly “show that the majority of the privately funded trips — by far — are sponsored by universities.” Maybe, but it’s a fair bet that on those trips, the Justices don’t stay in dorm rooms. Are we to believe the suggestion that universities paid to send Justices to Singapore, Hong Kong, Ireland, and Switzerland? I also note that universities are sometimes litigants or amicus curiae (friend of the court) in cases of major importance.

The cited Times story about all this was published almost exactly five years ago. At that time legislation was pending in Congress to “require the Supreme Court to create a formal ethics system, beyond the Ethics in Government Act, like the one that governs actions of all other federal judges. That system is known as the Code of Conduct for United States Judges.” It should say “United States Judges Other Than Supreme Court Justices” because it apparently does not apply to them in any meaningful way – each of them decides for himself whether his conduct raises ethical concerns.

Chief Justice Roberts has argued that the Supreme Court, even though it generally abides by this judicial ethics code, is not obligated to do so. It restricts how much judges can be paid for private travel, and limits other activities outside the court, such as allowing private organizations to use “the prestige of judicial office” for fund-raising purposes.

Richard L. Hasen, a professor of law and political science at the University of California, Irvine, said that society could benefit when justices — who are paid about $250,000 a year, far less than they would earn in private practice — leave Washington to speak about how the court works.

“Society could benefit.” Perhaps, if that’s what the Justices always spoke about to other judges, law students and the like. Somehow, I doubt that’s what Scalia was talking about in Zurich.

Self-policing is a nice concept but fails in practice a good deal of the time. And since the Supreme Court is the top of the third branch of government, enshrined in the Constitution and the final word on the constitutionality of state and federal laws, self-policing seems a particularly inapt way of assuring fair, neutral decision-making.

The sitting Chief Justice has defended the current approach by arguing that the Justices “consult the code for lower-court judges in assessing their own ethical obligations.” They may “consult” but are not bound to follow.” Extraordinary.

The “both sides-ing” of the ethical issues involving speeches and political leanings by Justices cannot be allowed to obscure the fundamental obligation of judicial neutrality embodied in the American Bar Association’s Model Code of Judicial Conduct [bolding is mine] set out below, along with the corresponding Code of Conduct for United States Judges.

ABA: CANON 1
A judge shall uphold and promote the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.

Judges’ Code: Canon 1

A Judge Should Uphold the Integrity and Independence of the Judiciary.

ABA: CANON 2
A judge shall perform the duties of judicial office impartially, competently, and diligently.

Judges’ Code: Canon 2

A Judge Should Avoid Impropriety and the Appearance of Impropriety in all Activities

ABA: CANON 3
A judge shall conduct the judge’s personal and extrajudicial activities to minimize the risk of conflict with the obligations of judicial office.

Judges’ Code: Canon 3

A Judge Should Perform the Duties of the Office Fairly, Impartially and Diligently

ABA: CANON 4
A judge or candidate for judicial office shall not engage in political or campaign activity that is inconsistent with the independence, integrity, or impartiality of the judiciary.

Judges’ Code: Canon 4

A Judge May Engage in Extrajudicial Activities that are Consistent with the Obligations of Judicial Office

Judges’ Code: Canon 5

A Judge Should Refrain from Political Activity

The Judges’ Code is accompanied by a lengthy commentary on each section that only a lawyer can appreciate. Suffice to say that, in substance, the ABA Code and the Judges’ Code are essentially the same.

A commission appointed by President Biden to consider some of these issues stated in its report that “this voluntary system may not be the best approach to conflicts of interest that may affect the public’s perception of the court. “It is not obvious why the court is best served by an exemption from what so many consider best practice,” the report said. Indeed, a masterpiece of understatement.

Ironically, I suggest without a hint of irony, Justice Alito who often speaks at the Federalist Society’s meetings, had this to say at its November 2020 convention:

Judges dedicated to the rule of law have a clear duty. They cannot compromise principle or rationalize any departure from what they are obligated to do. And I’m confident that the Supreme Court will not do that in the years ahead. When we look back at the history of the American judiciary, we can see many judges who were fearless in their dedication to principle …. [https://bit.ly/3uEG2iE]

Many, but not all, it seems. Furthering the irony, Justice Alito’s very next words were, “and one who is especially dear to the Federalist Society springs immediately to mind I’m referring to Justice Antonin Scalia.” To quote the infamous Mr. Barry, I am not making this up. I will have much more to say about J. Alito’s extraordinary speech in a future post.

Most of the comments I have read about this issue constitute the highest [lowest?] form of tiptoeing by the graveyard. The stench of politics wafting from the High Court is gag-inducing. The pussyfooting by Democrats only makes it worse: “Justice Thomas’s participation in cases involving the 2020 election and the January 6th attack is exceedingly difficult to reconcile with federal ethics requirements.” https://wapo.st/3DqCQLB “Exceedingly difficult?” Really?

This is the same Justice Thomas and his wife, Ginni, whose text messages to Mark Meadows, Chief of Staff to Trump urged Meadows and Trump to “stand firm” in pursuing legal strategies to overturn the election she claimed was stolen from Trump. In keeping with the circus-of-the-obvious that Washington has become, Democrats in Congress were shocked, yes, I say, shocked, and even “outraged” to learn of these messages. https://wapo.st/35r6N1C

Now some experts see problems with this sordid example of non-self-regulation:

Legal ethicists, even some who in the past have been sympathetic to the notion that justices’ spouses are entitled to their own political activities, said the revelations presented a serious problem for the Supreme Court.

“The public is going to be deeply concerned whether a justice can be fair when his wife has been such an active participant in questioning the outcome of the election,” said Steven Lubet, a professor and judicial ethics expert at Northwestern University law school.

Louis J. Virelli III, a Stetson University law professor who wrote “Disqualifying the High Court: Supreme Court Recusal and the Constitution,” said that “this situation is problematic” considering the Jan. 6, 2021, attack on the U.S. Capitol by hundreds of Trump’s supporters. “It is so stark.” [https://wapo.st/3LtMno4]

Not surprisingly to anyone with a functioning mind, “Congressional Republicans came to Clarence Thomas’s defense.” Names: Senate Minority Leader Mitch McConnell, House Minority Leader Kevin McCarthy, leading House shrieker, Jim Jordan. Icons of ethical conduct, every one. Some of them, McConnell in particular, it is said, oppose Thomas even recusing from January 6 cases. We should not be surprised since the last Republican known to believe in democratic principles appears to have died some time ago.

Experts in judicial ethics seem to be falling all over themselves to avoid speaking the dreaded words: RESIGN. The lawyerly hair splitting is disturbing because this is not a problem curable by disclosure or recusal in this case or that. The High Court may well end up deciding multiple cases arising from the January 6 attack and the conspiracies that led up to and followed it.

Even if recusal, the step short of resignation, were adopted by Thomas for those cases, the Court would be deprived of one voice and one vote in an already small group of decision-makers. The burdens on other Justice would increase and the possibility of tie-votes on crucial constitutional issues would increase. Ginni Thomas’s own words proof how tone-deaf and substance-indifferent she and her husband are: ““Clarence doesn’t discuss his work with me, and I don’t involve him in my work.” Sure.

Just imagine:

“How was your day, honey?”

“Fine. Just the usual run-of-the-mill insurrection cases, you know, the attempts to overthrow the government. But you know we can’t talk about that, right?”

“Of course not, so let me tell you what I did today….”

More rules and self-enforcing principles of recusal do not serve the interests of the United States, which should be the only focus here. The interests and feelings of Justice Thomas and his wife are irrelevant. They brought this problem on themselves, and the country should not bear further the costs of their conduct. Thomas has already shown himself to be indifferent, at best, to the high ethically duty that should be the watchword of every Justice on the Court. Resignation is the only appropriate remedy, and it should be forthwith, before more interference with the Court’s business and more impairment of its already wounded reputation occur.

Is It Too Late?

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On Sunday, January 2, 2022, the New York Times published an Editorial entitled “Every Day Is January 6 Now.” https://nyti.ms/3qKLbEH Rather than summarize it, I am going to quote liberally from it so that it’s clear who is speaking and what is being said. I may add some thoughts of my own here and there, clearly indicated, and, of course, at the end.

This is not to say that I think the Times is the final word on this or anything. I have, and will continue to, criticize the writing in the Times and other media whose careless and/or deliberate use of words takes news reporting into another realm. A recent example is this headline: “American officials scrambled to clarify Biden’s suggestion that Putin ‘cannot remain in power.’” https://nyti.ms/3NlwD8a Three co-authors are shown and, presumably, at least one editor reviewed the headline before publication. Drop the word “scrambled” and you have the same news: that officials offered clarifications of Biden’s statement. That is the fact, shorn of the authors’ nuances implying confusion and that Biden was making a proposal rather than some of the other possible interpretations of his remark. See https://bit.ly/3tKPiTa It’s hard to avoid the conclusion that the Times was tilting the table against the President here. Why would it do that?

It’s likely part of the journalism philosophy that leads to “both sides-ing” stories. In any case, the practice is inconsistent with the editorial position of the Times on one of the most important issues of our time. Returning, then, to my main purpose here, I quote now extensively from the editorial of January 2, noting in passing that it is now March 28, another fact to which I will return at the end. Bear with me. This is really important. Really. [ As usual, the bolded text is my doing]

Jan. 6 is not in the past; it is every day.

It is regular citizens who threaten election officials and other public servants, who ask, “When can we use the guns?” and who vow to murder politicians who dare to vote their conscience. It is Republican lawmakers scrambling to make it harder for people to vote and easier to subvert their will if they do. It is Donald Trump who continues to stoke the flames of conflict with his rampant lies and limitless resentments and whose twisted version of reality still dominates one of the nation’s two major political parties.

In short, the Republic faces an existential threat from a movement that is openly contemptuous of democracy and has shown that it is willing to use violence to achieve its ends. No self-governing society can survive such a threat by denying that it exists. Rather, survival depends on looking back and forward at the same time….

The effort extended all the way into the Oval Office, where Mr. Trump and his allies plotted a constitutional self-coup.

We know now that top Republican lawmakers and right-wing media figures privately understood how dangerous the riot was and pleaded with Mr. Trump to call a halt to it, even as they publicly pretended otherwise. We know now that those who may have critical information about the planning and execution of the attack are refusing to cooperate with Congress, even if it means being charged with criminal contempt….

Over the past year, Republican lawmakers in 41 states have been trying to advance the goals of the Jan. 6 rioters — not by breaking laws but by making them. Hundreds of bills have been proposed and nearly three dozen laws have been passed that empower state legislatures to sabotage their own elections and overturn the will of their voters ….

Thus the Capitol riot continues in statehouses across the country, in a bloodless, legalized form that no police officer can arrest and that no prosecutor can try in court….

A healthy, functioning political party faces its electoral losses by assessing what went wrong and redoubling its efforts to appeal to more voters the next time. The Republican Party, like authoritarian movements the world over, has shown itself recently to be incapable of doing this. Party leaders’ rhetoric suggests they see it as the only legitimate governing power and thus portrays anyone else’s victory as the result of fraud — hence the foundational falsehood that spurred the Jan. 6 attack, that Joe Biden didn’t win the election….

Polling finds that the overwhelming majority of Republicans believe that President Biden was not legitimately elected and that about one-third approve of using violence to achieve political goals. Put those two numbers together, and you have a recipe for extreme danger….

Democrats aren’t helpless…. They hold unified power in Washington, for the last time in what may be a long time. Yet they have so far failed to confront the urgency of this moment — unwilling or unable to take action to protect elections from subversion and sabotage. Blame Senator Joe Manchin or Senator Kyrsten Sinema, but the only thing that matters in the end is whether you get it done. For that reason, Mr. Biden and other leading Democrats should make use of what remaining power they have to end the filibuster for voting rights legislation, even if nothing else.

Whatever happens in Washington, in the months and years to come, Americans of all stripes who value their self-government must mobilize at every level — not simply once every four years but today and tomorrow and the next day — to win elections and help protect the basic functions of democracy. If people who believe in conspiracy theories can win, so can those who live in the reality-based world.

Above all, we should stop underestimating the threat facing the country. Countless times over the past six years, up to and including the events of Jan. 6, Mr. Trump and his allies openly projected their intent to do something outrageous or illegal or destructive. Every time, the common response was that they weren’t serious or that they would never succeed. How many times will we have to be proved wrong before we take it seriously? The sooner we do, the sooner we might hope to salvage a democracy that is in grave danger.

[End of Times editorial]

Three months have passed since that editorial was published. We are now a year and three months past the January 6 attack on the Capitol and on American democracy. Here’s where we are:

No main planners behind the January 6 insurrection (referring here to members of the Trump administration, members of Congress and Trump himself) have been indicted,
Members of Congress and others continue to spit in the face of the Select Committee to Investigate the January 6th Attack on the United States Capitol by defying demands, including subpoenas, for records and testimony.
The Select Committee is moving at a pace that makes the tortoise in the famous tale look like War Admiral, the fourth winner of the Triple Crown. At this rate nothing of substance will have been accomplished by the mid-term elections of 2022.
Attorney General Merrick Garland’s Department of Justice has not produced a single indictment of any of the principal conspirators behind January 6, or any indictments of those refusing to comply with lawful orders of the Select Committee, meaning that any indictment now almost certainly would not be tried before the 2024 elections.

I practiced law for 48 years, including conducting investigations of lying and highly resistant conspirators, and closely observed Watergate, the Clinton impeachment, and other sordid political matters. Strategies such as “run out the clock” are well-known by prosecutors. The statute of limitations has already run on at least one of Trump’s crimes. See https://shiningseausa.com/2022/02/18/trump-may-skate-obstruction-justice/

I understand the natural reluctance of prosecutors to bring cases they fear might lose and that might lead to judicial decisions with lasting negative effects on our politics. No one wants to be associated with losing a big case. But failing to bring a case that is justified by evidence, but where the law may be unclear, for fear of defeat is to be defeated already. You have beaten yourself and the country too. That’s where we seem to be now. We are defeating ourselves by allowing the primary perpetrators of the January 6 insurrection to escape swift justice.

Lawyers lose cases all the time. Every trial has a winner and a loser. It’s rare that losing a case has long-term consequences for the attorneys involved.

We’ve seen this before, as I noted in reviewing Andrew Weissmann’s remarkable analysis of the Mueller investigation in Where Law Ends: “rigid thinking and timidity in the face of threats from the subjects of the investigation led to catastrophic errors.” https://bit.ly/3uTJ7M7 Among the leading ones were decisions not to interview Trump’s children who worked in the White House throughout his term.

Even more egregious was the decision not to force Trump’s hand regarding testimony under oath. I almost fell over yesterday when reading in Jeffrey Toobin’s True Crimes and Misdemeanors [started before the 2020 election but only now being finished – more on that in a future post] that Aaron Zebley, Mueller’s chief of staff at the FBI and a senior member of the investigation team, committed one of the worst negotiating sins imaginable.

A meeting was held between Mueller’s people and Trump’s defense team, for the purpose of introducing Rudy Giuliani as the new lead defense lawyer. According to Toobin, Giuliani wanted to,

nail down Mueller’s commitment that he would follow the DOJ’s Office Legal Counsel policy barring indictments of sitting presidents. Aaron Zebley volunteered that Mueller would. [True Crimes at 236]

It appears that Mueller got nothing in exchange for this astounding concession that removed one of the largest leverages that Mueller had. I would not have believed this happened were it not consistent with Weissmann’s descriptions of the influence Zebley exerted at critical moments in the investigation.

Successful investigations require maximum pressure. I don’t mean that the investigators should behave unreasonably or unfairly. That approach would likely backfire at some point. But there is no reason whatsoever to give away leverage without securing at least an equal value in some other form. As it happened, Trump himself was never placed under oath for an interview, never answered many of the written questions posed to him and almost certainly lied in answering many others in which the self-declared “stable genius” claimed to not remember much of anything. See my series of posts about the Mueller investigation, beginning at https://bit.ly/3tLT2Us.

The Select Committee is run by politicians so there is perhaps even less reason to expect world-class investigative technique, but if something doesn’t change soon, the entire point will be lost. In what universe do leaders of a democracy, all sworn to follow the law and sustain the Constitution, walk free in the face of evidence that they conspired to overthrow the democratically constituted government?

I say ‘evidence’ recognizing we don’t have all of it. But if all the evidence would show they were innocent, is it plausible that so many members of Congress and of the Trump administration would refuse to cooperate, refuse to produce documents, and refuse to testify under oath? Enough is already known to warrant very aggressive and immediate action to bring the Republican dogs to justice. ALL of them.

As the New York Times astutely said back in January 2022,

Jan. 6 is not in the past; it is every day.

The White House and the Department of Justice had better wake up before it’s too late.

The Triumph of Hope Over Experience?

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Once again, the rush is on to drop mask mandates and “get back to normal.” Because, Freedumb. This past Presidents Day weekend we visited Wilmington and places along the way. Masks were already the marked exception, even for restaurant staff. Signs referring to masks were mostly gone or disregarded. In our 10-story hotel, one of the two elevators was out of service, many people were perfectly content to, maskless, get on the elevator with you.

As a society we have asked, nay, demanded of our health care workers in hospitals and elsewhere an extraordinary degree of commitment and sacrifice, not to mention life-threatening risk. Small wonder that so many have quit in exhaustion & despair. For a while we made celebrated their sacrifice as we would have for soldiers in time of war (Vietnam excepted)., but that time has passed, it seems.

There are other phrases for what we’re doing now. “Whistling by the graveyard” comes to mind. Dr. Chris Beyrer, professor of epidemiology at Johns Hopkins Bloomberg School of Public Health, summed it up nicely: “… this does look like the beginning of a next phase and let’s hope it lasts.” https://bit.ly/3smMxqk Indeed, let’s hope. Experience suggests otherwise but we’ll see. I will be quite happy to be wrong about my skepticism.

The over-privileged whiny babies seem to have carried the day with their relentless complaining, arrogant ignorance about the science of the virus and violence. Their hatred and fear of the federal government, their obeisance to the Liar King Trump and other factors have led them to a degree of self-indulgence and dangerous behavior to themselves and others that defies understanding. They must have their seat at the bar, their time at the gym, whatever, and many will simply not accept anything else. Freedumb.

Now, we are on the verge of a shooting war with Russia, a nuclear-equipped country dominated by a former and ruthless KGB operative now essentially Russia’s president for life. Republicans around the country and in Congress have now progressed from the Big Lie of Donald Trump to overt support for a country with which the United States may be at war soon. Their traitorous conduct in supporting, perhaps even planning and certainly defending, the January 6 coup attempt has moved on to more adventurous treasons. Here are their names:

Rep. Elise Stefanik

Rep. Marjorie Taylor Greene

Rep. Lauren Boebert

Rep. Paul Gosar

Rep. Matt Gaetz

Rep. Andy Biggs

Rep. Jim Jordan

Rep. Greg Steube

Rep. Byron Donalds

Rep. Jody Hice

Rep. Thomas Massie

Rep. Kat Cammack

Rep. Jim Banks

Rep. Lee Zeldin

Rep. Bill Johnson

Rep. Dan Crenshaw

Sen. Ted Cruz

Sen. Tom Cotton

Sen. Ron Johnson

Sen. Marsha Blackburn

Sen. Tim Scott

Sen. Rick Scott

Sen. Marco Rubio

Sen. Cindy Hyde-Smith

Sen. Cynthia Lummis

Sen. Lindsey Graham

GOP Chairwoman Ronna McDaniel

GOP Leader Kevin McCarthy

GOP Candidate Ronny Jackson

All Republicans.

There was a time when American politicians would not criticize an American president when we was conducting the nation’s business overseas. And while they reserve the right to oppose U.S. engagement in armed conflict or declarations of war/authorization for the use of force, it was rare that they would overtly side with the enemy in an armed conflict.

No so, today’s Republicans. Given their statements and conduct, it does not challenge the imagination to think they would support Russia’s declaring that all of Europe was Russian territory. Recall Hitler. “The troops massing on your border are just a military exercise. Don’t be alarmed. Our territorial ambitions are quite limited. Believe me.”

But that is a subject for another day. In this post, I want to remind everyone, and hope they share it with others I can’t reach, how Donald Trump, in his official capacity as President of the United States, deliberately and repeatedly lied to the American people for over two years about the COVID-19 virus. In his constant lying, he persuaded his gullible followers that the virus was no threat, that masks were evil, that even the vaccine he claimed to have inspired was not to be trusted, and more. He admitted to having deliberately downplayed the threat in his interview with Bob Woodward. Of course, to deny that he downplayed it would have been another blatant lie because the record of his lies is clear and unflinching.

As a result, Donald Trump is personally responsible for the avoidable deaths of, most likely, hundreds of thousands of Americans. If you think that number is too large, remember that, as of February 22, 2022, the U.S. death total attributable to COVID is 932,894. It seems clear we will come near to or exceed a million dead before this is “over,” if it ever is.

Trump is responsible for many of those that could have been, and still could be, avoided if public health advice had been fully respected. Instead, acts of violence are perpetrated every week in airports and on aircraft, in restaurants and elsewhere – all in the name of Freedumb, encouraged by Trump and his cabal of traitors and incompetents.

It’s tempting, of course, to point fingers at the tens of thousands, or millions, of Americans who have fallen prey to Trump’s siren song. And they are worthy of profound disdain, particularly those who followed his call to storm the Capitol on January 6 and steal the election. Many Americans have proved themselves unworthy of the designation, “American.” They are soft, entitled, and unbending in their disrespect of the needs of others.

And, yet, here we are again, making political decisions about medical issues in our rush to deflect the anger of the self-absorbed cry babies who refuse to wear masks, reject vaccines, and generally behave in a way that assures the pandemic will remain with us longer, perhaps forever. Mostly, if not entirely, in the service of the lies told by Donald Trump and the sycophants who continue to surround him and do his bidding to unlawfully reinstall him as president. It’s a pathetic display of ignorance, arrogance, and insolence. It will not end well.

Here is a chronology of Trump’s lies and deflections about COVID-19. I don’t expect you to read all of the detail, but it may be useful in the coming elections. You may want to just skim through it to get the gist of just how many lies and deflections Trump said just in 2020.

The Year 2020 [italics & bolding added]

January 22: “We have it totally under control. It’s one person coming in from China, and we have it under control. It’s going to be just fine,”

January 30: World Health Organization declares a public health emergency of international concern.

January 30: “We think we have it very well under control. We have very little problem in this country at this moment — five — and those people are all recuperating successfully. But we’re working very closely with China and other countries, and we think it’s going to have a very good ending for us … that I can assure you.”

January 31: The U.S. Department of Health and Human Services declares a public health emergency for the U.S.

January 31: HHS Secretary Alex Azar announces travel restrictions, effective February 2, prohibiting non-U.S. citizens, other than permanent residents and the immediate family of both citizens and permanent residents, who have traveled to China within the prior two weeks from entering the U.S. No consideration is apparently given to people coming to the U.S. from Europe who had been in China or in contact with Chinese people.

February 7: Trump Interview with Woodward: “It goes through air, Bob. That’s always tougher than the touch … You just breathe the air and that’s how it’s passed. And, so that’s a very tricky one. … It’s also more deadly than your – you know, your, even your strenuous flus. … This is more deadly. This is 5, you know, this is 5% versus 1% and less than 1%. You know, so, this is deadly stuff.

February 10: You know, a lot of people think that goes away in April with the heat — as the heat comes in. Typically, that will go away in April.

February 24: Trump in a tweet: The Coronavirus is very much under control in the USA. We are in contact with everyone and all relevant countries. CDC & World Health have been working hard and very smart. Stock Market starting to look very good to me!

February 25: China is working very, very hard. I have spoken to President Xi, and they’re working very hard. And if you know anything about him, I think he’ll be in pretty good shape. They’re — they’ve had a rough patch, and I think right now they have it — it looks like they’re getting it under control more and more. They’re getting it more and more under control. So I think that’s a problem that’s going to go away.

February 26: …when you have 15 people, and the 15 within a couple of days is going to be down to close to zero, that’s a pretty good job we’ve done.

February 27: It’s going to disappear. One day — it’s like a miracle — it will disappear. And from our shores, we — you know, it could get worse before it gets better. It could maybe go away. We’ll see what happens. Nobody really knows.

March 2 — 5 average daily new cases

March 6 — 32 average daily new cases – increase of 5.4 x over 4 days

I don’t think people are panicking. I said last night — we did an interview on Fox last night, a town hall. I think it was very good. And I said, ‘Calm. You have to be calm.’ It’ll go away.

March 10 — 102 average daily new cases – increase of 2.2 x over 4 days

We’re prepared, and we’re doing a great job with it. And it will go away. Just stay calm. It will go away.

March 12 — 201 average daily new cases – increase of 2x over 2 days

You know, we need a little a separation until such time as this goes away. It’s going to go away. It’s going to go away.

March 29 — 15,514 average daily new cases – increase of 76 x over 17 days prior

March 3O: Stay calm. It will go away. You know it — you know it is going away, and it will go away. And we’re going to have a great victory

March 31 — 19,337 average daily new cases – increase of 24 % over two days

It’s going to go away, hopefully at the end of the month. And, if not, hopefully it will be soon after that.

April 3 — 26,081 average daily new cases – increase of 35 % in 3 days

It is going to go away. It is going away.

April 7 — 31,238 average daily new cases – increase of 20 % over 4 days

It did go — it will go away.

April 28 — 28,568 average daily new cases – decrease of 8 % over 21 days

But a lot of movement and a lot of progress has been made in a vaccine. But I think what happens is it’s going to go away. This is going to go away. And whether it comes back in a modified form in the fall, we’ll be able to handle it.

April 29 — 28,171 average daily new cases – decrease of 1 % over 1 day

It’s going to go. It’s going to leave. It’s going to be gone. It’s going to be eradicated. And it might take longer. It might be in smaller sections. It’ll be — it won’t be what we had. And we also learned a lot.

May 5 — 27,134 average daily new cases – decrease of 4 % over 7 days

And I think we’re doing very well on the vaccines but, with or without a vaccine, it’s going to pass, and we’re going to be back to normal.

May 6 — 26.830 average daily new cases – decrease of 1 % over 1 day

Because, you know, this virus is going to disappear. It’s a question of when. Will it come back in a small way? Will it come back in a fairly large way? But we know how to deal with it now much better. You know, nobody knew anything about it, initially. Now we know we can put out fires.

May 8 — 25.475 average daily new cases – decrease of 5 % over 2 days

Well, I feel about vaccines like I feel about tests. This is going to go away without a vaccine. It’s going to go away, and it’s — we’re not going to see it again, hopefully, after a period of time. You may have some — some flare-ups and I guess, you know, I would expect that. Sometime in the fall, you’ll have flare-ups maybe. Maybe not. But according to what a lot of people say, you probably will. We’ll be able to put them out. You may have some flare-ups next year, but eventually, it’s going to be gone. I mean, it’s going to be gone.

May 15 — 22.337 average daily new cases – decrease of 12 % over 7 days

We think we’re going to have a vaccine in the pretty near future. And if we do, we’re going to you had a problem come in, it’ll go away — at some point, it’ll go away. It may flare up, and it may not flare up. We’ll have to see what happens.

May 19: “When we have a lot of cases, I don’t look at that as a bad thing,” the president said. “I look at that in a certain respect as being a good thing, because it means our testing is much better. So, if we were testing a million people instead of 14 million people, we would have far few cases, right?

“So, I view it as a badge of honor. Really, it’s a badge of honor,” he added. “It’s a great tribute to the testing and all of the work that a lot of professionals have done.”

Days later, the U.S. recorded 100,000 known deaths from COVID-19.

June 15 — 21.987 average daily new cases – decrease of 2 % over 31 days

So I think that’s — but even without that [a vaccine or therapeutics], you know, at some point this stuff goes away and it’s going away.

June 16 — 22,613 average daily new cases – increase of 3 % over 1 day

I always say, even without it [a vaccine], it goes away.

June 17 — 23,380 average daily new cases – increase of 3 % over 1 day

…if you look, the numbers are very minuscule compared to what it was. It’s dying out.

But I will tell you, we’re very close to a vaccine, and we’re very close to therapeutics, really good therapeutics. And — but even without that — I don’t even like to talk about that, because it’s fading away. It’s going to fade away.

June 18 — 24,195 average daily new cases – increase of 3 % in over 1 day

And it is dying out. The numbers are starting to get very good.

July 1 — 44,875 average daily new cases – increase of 85 % over 13 days

And I think we are going to be very good with the coronavirus. I think that, at some point, that’s going to sort of just disappear, I hope.

July 19 — 64,754 average daily new cases – increase of 44 % over 18 days

I’ll be right eventually. I will be right eventually. You know I said, ‘It’s going to disappear.’ I’ll say it again. It’s going to disappear, and I’ll be right.

NPR: July 19: Trump Interview: “Many of those cases are young people that would heal in a day,” “They have the sniffles, and we put it down as a test.” He added that many of those sick “are going to get better very quickly.”

At the time of Trump’s interview, more than 3.7 million coronavirus cases had been confirmed in the United States, and more than 140,000 Americans had died.

July 21 — 65,073 average daily new cases – increase of .5 % over 2 days

Well, the virus will disappear. It will disappear.

July 22 — 65,321 average daily new cases – increase of .4 % over 1 day

We’re gonna beat it, yeah. We’re going to beat it. And with time, you’re going to be it — time. You know, I say, it’s going to disappear. And they say, ‘Oh, that’s terrible.’ He said — well, it’s true. I mean, it’s going to disappear. Before it disappears, I think we can knock it out before it disappears.

August 5 — 56,585 average daily new cases – decrease of 13 % over 14 days

This thing’s going away. It will go away like things go away…

It’s going away. No, it’ll go away like things go away. Absolutely. No question in my mind. It will go away. Hopefully sooner rather than later.

August 7 — 54,756 average daily new cases – decrease of 3 % over 2 days

And we’re getting them [manufacturing jobs] even in a pandemic — which is disappearing; it’s going to disappear.

August 13 — 56,371 average daily new cases – increase of 3 % over 6 days

Think of it, we’re almost back to where we were [stock market], and we’re still in the pandemic, which will be going away, as I say, it’ll be going away. And they scream, how you can you say that? I said, because it’s gonna be going away.

August 17 — 51,244 average daily new cases – decrease of 9 % over 4 days

And as soon as the plague is gone — we have vaccines coming, we have therapeutics coming, and it’s going to be gone. And it’s gonna be gone soon.

And the China Plague will fade.

August 24 — 42,123 average daily new cases – decrease of 18 % over 7 days

It’s all coming back so fast and you’ll see it, and the pandemic goes away. The vaccines are going to be, I believe, announced very soon.

August 31 — 41,719 average daily new cases – decrease of 1 % over 7 days

Well, once you get to a certain number — you know, we use the word herd, right. Once you get to a certain number, it’s going to go away.

September 15 — 38,922 average daily new cases – decrease of 7 % over 16 days

It is gonna disappear. It’s gonna disappear. I still say it.

NPR: September 21: Interview: “It affects elderly people, elderly people with heart problems, if they have other problems, that’s what it really affects, that’s it. In some states thousands of people — nobody young — below the age of 18, like nobody — they have a strong immune system — who knows?” Trump said.

“Take your hat off to the young because they have a hell of an immune system. It affects virtually nobody,” he added. “It’s an amazing thing — by the way, open your schools!”

October 10 — 47,466 average daily new cases – increase of 22 % over 25 days

But it’s going to disappear. It is disappearing. And vaccines are going to help, and the therapeutics are going to help a lot.

October 15 — 53,152 average daily new cases – increase of 12 % over 5 days

The vaccine will end the pandemic. But it’s ending anyway. I mean, they go crazy when I say it. It’s going to peter out and it’s going to end. But we’re going to help the end and we’re gonna make it a lot faster with the vaccine and with the therapeutics and frankly with the cures.

October 16 — 55,144 average daily new cases – increase of 4 % over 1 day

Even without the vaccine, the pandemic’s going to end. It’s gonna run its course. It’s gonna end. They’ll go crazy. He said ‘without the vaccine’ — watch, it’ll be a headline tomorrow. These people are crazy. No, it’s running its course.

All of the foregoing occurred in 2020. Through Oct. 19, 2020 more than 220,000 people had died from Covid-19 in the US. Well over a year after Trump’s last quoted remark above, the pandemic death toll in the U.S. is approaching 1,000,000 human beings of all ages and stages of life and health. We will never know precisely how many deaths and other long term/permanent devastating health impacts could have been avoided if Trump had not consistently and repeatedly misled his devoted followers, but it not unreasonable to believe that the pandemic would have entered the endemic stages long ago. Instead, the death and destruction continue. And Trump, well, Trump has moved on. His sole concern is with being restored to the presidency by whatever means – lying, cheating, stealing – will work.

Sources:

NPR: https://n.pr/35rwzSW

Factcheck.org: https://bit.ly/35x0SYd

Guardian: https://bit.ly/3HvJMrm

Vox.com: https://bit.ly/3t4ZJ2c

CNN: https://cnn.it/3M7wvsv

Trump May Skate on Obstruction of Justice

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I am very sorry to report that the statute of limitations [SoL] has run against Donald Trump’s acts of obstruction of justice when he asked FBI Director James Comey to leave Michael Flynn alone. More on that in a moment.

First, I want to call to all readers’ attention the Lawfareblog at https://www.lawfareblog.com. For readers interested in, and able to tolerate reading lawyers’ opinions, this site has some of the most serious, law-focused discussion you will find anywhere regarding many of the key issues facing the country. As in the analysis of Trump’s obstruction conduct in the earliest known case, sometimes the lawyers’ analysis does not have a happy outcome. But it is always thought provoking, written by serious and accomplished people. Lawfareblog.com is a vast resource that I hope you will visit and support.

Now, back to the bad news. The article that addresses the Statute of Limitations issue regarding Comey and Flynn is at https://bit.ly/3LJqn9q. The SoL expired on February 14 with no action by the Department of Justice to hold Trump accountable for the first of at least 10 instances of obstruction of justice identified by Mueller. The Special Counsel took no action because he believed he was bound by the DOJ position that it could not indict a sitting president. Mueller also had a very narrow understanding of the job he has been given, as detailed in the compelling and important book, Where Law Ends, by Andrew Weissmann, one of Mueller’s chief deputies. I reviewed the book at https://bit.ly/3LENvWF

It is a remarkable work, and everyone should read it.

Mueller’s failure to act left it to the Garland DOJ to pick up the case after Trump left the White House. He didn’t. The running out of the SoL means that, regarding the Comey-Flynn episode, we are SOL. As more time passes, the SoL will foreclose, one by one, any possible accountability for the other nine cases Mueller identified and several that, in my opinion, he inexplicably missed. See, for example, my extensive discussion of the Mueller Report on the obstruction of justice issues:

https://bit.ly/33zmPFI

https://bit.ly/3LDkdYB

https://bit.ly/3JDzIhf

https://bit.ly/3oYM7o7

https://bit.ly/3I52g2I

The Lawfare blog includes a heat map that graphically illustrates the threat posed by the calendar for 14 possible charges of obstruction (4 more than Mueller identified and more in line with my analysis). In thinking about the obstruction issues, it is important to understand that there are three crucial elements to conviction on any charge:

Obstructive Act

Connection Between the Act and an Active Investigation

Corrupt Intent

By the end of July 2022, DOJ will lose the ability to charge Trump with the two instances in which even Mueller thought were the stronger cases for proving obstruction.

Meanwhile, as Lawfare notes with concern, DOJ remains mute.

At this stage, it is not clear whether a single Department of Justice attorney has reviewed the Mueller report since Trump left office. And it’s not clear either whether anyone will before the statutes of limitations run down. In the absence of a statement from Garland, the public knows virtually nothing about the status of the Justice Department’s investigation into these potential acts of obstruction by Trump. We can only speculate as to what may be happening.

The balance of the Lawfare article consists of an analysis of five scenarios regarding DOJ’s posture. Lawfare admits this is all speculation – it must be since AG Garland is not talking. Many of the five scenarios are decidedly offensive but that doesn’t mean they aren’t correct explanations of what is happening – and, not happening.

Lawfare then makes a compelling case for the Attorney General to explain to the country what is going on regarding Trump’s obstruction of justice. Silence is the least acceptable path forward. Lawfare is right about this, I believe. Read it, I urge you, and judge for yourself.

Past the Point of No Return

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The New York Times just published a “guest opinion” piece by J. Michael Luttig, a former judge on the U.S. Court of Appeals for the Fourth Circuit and an advisor to Republican senators. https://nyti.ms/3HS9cjT

The article is entitled, The Conservative Case for Avoiding a Repeat of Jan. 6. That language suggested to me that the argument would be that we should just accept the Big Lie that the last election was stolen, accept massive voter suppression legislation around the country in red states and, as a democracy, roll over and not only play dead but be dead. My second reaction was, over my dead body.

Turns out, I was overreacting. My first impression of the topic was wrong. Moral: always read the story before falling for the headline. So, I did.

Luttig, to be sure, is a learned man, shaped in the higher echelons of Republican politics and the judiciary during the halcyon days of the Reagan and G.W. Bush administrations. I say “halcyon” because this was the time when the Republican Party still purported, at least, to stand for something. Luttig eventually resigned from the Court of Appeals to become Boeing’s General Counsel with a reported pay raise of more than $2.5 million. https://bit.ly/3Jvs88e Pretty good for a boy from Tyler, Texas.

I mention all that because, as is often true, challenging someone of his standing and accomplishment can be … challenging. But what are they going to do? I don’t practice law anymore and I do love a challenge. So, let’s look at Luttig’s latest thoughts on the all-important subject of avoiding another violent attack on the government and the Constitution.

To his credit, Luttig recognizes that Trump and his Republican devotees represent a “clear and present danger” to our democracy. Noting issues with the language of the 1887 (yes, over 120 years ago) Electoral Count Act, he further acknowledges that the efforts of Senators Hawley and Cruz to overturn the election were based on “little more than a wish” and notes that Trump has confessed to his perfidy, both past and looking forward.

Trump’s continued promotion of the Big Lie has never been an issue. As president he stated he could do “whatever I want” and he still thinks that. Here’s where things get sticky for Judge Luttig.

Referring to the mythical remnants of the Republican Party after deducting Trump fantasists, Luttig says they are “mystifyingly stymied by Mr. Trump” and while they allegedly reject his lies about 2020,

they are confused as to exactly how to move on from the 2020 election when their putative leader remains bewilderingly intent on driving the wedge between the believers in his lies and the disbelievers.

This political fissure in the Republican Party was bound to intensify sooner or later, and now it has, presenting an existential threat to the party in 2024. If these festering divisions cost the Republicans in the midterm elections and jeopardize their chances of reclaiming the presidency in 2024, which they well could, the believers and disbelievers alike will suffer.

In moving with such facility from “clear and present danger to democracy” to concern about the “existential threat to the {Republican] party,” the Judge reveals his true goal is to right the listing Republican ship and enhance its political fortunes, notwithstanding its hypnotic devotion to Trump. If so, his argument has little or nothing to do with protecting the country from the collapse of democracy.

Luttig’s argument is another variation of “can’t we all just get along?”

the right course is for both parties to set aside their partisan interests and reform the Electoral Count Act, which ought not be a partisan undertaking.

“Ought not,” indeed. My, oh my, what a wonderful world it could be.

Luttig completes the fantasy analysis by assigning mutually reinforcing goals to the two parties. This is a standard tenet of books and courses on negotiating for “mutual gain.” Democrats, Luttig imagines should want to reform the Electoral Count Act to protect democracy which he admits is failing. This, he speculates, would “prevent another attack like the one at the Capitol on Jan. 6, 2021.” The logic of that premise-conclusion escapes me. As Peter Navarro has insisted, the aim of the January 6 mob was to force the election into the hands of the states, where the Republican majority would install Trump. They didn’t really care what the law said or what power Vice President Pence actually had under the law.

The mutual gain in Luttig’s conception is that “Republicans should want to reform the law for these same reasons, and more.” Uh huh. He asserts that, while Trump and Trumpers won’t join, “there are consequential reasons of constitutional and political principle for the large remainder of Republicans to favor reform in spite of the former president’s opposition.”

“Consequential reasons of constitutional and political principle” — got it. I am rolling on the floor LMAO. Except it’s not funny. Luttig’s thesis, right out of the old and long-ago discarded Book of Republican Orthodoxy, is that,

Republicans are proponents of limited federal government. They oppose aggregation of power in Washington and want it dispersed to the states. It should be anathema to them that Congress has the power to overturn the will of the American people in an election that, by constitutional prescription, is administered by the states, not Washington. If the Democrats are willing to divest themselves of the power to decide the presidency that the 49th Congress wrongly assumed 135 years ago, then it would be the height of political hypocrisy for the Republicans to refuse to divest theirs.

Well, now, isn’t that wonderful. Republicans favor limited federal government. Unless, of course, their state gets hit by a big hurricane or flood. Then they are more than happy to line up for federal money and manpower. Actually, I had understood that Republican orthodoxy was opposed to big government everywhere, but that idea was trashed in Texas recently. Republicans are perfectly fine with big government telling people what to do and not do, as long as it aligns with their religious or so-called freedom and family values.

Putting aside Luttig’s phantasmagorical search for coherence in Republican political doctrine (it being the party that advanced no platform in 2020), he next argues that Republicans should want reform of the Electoral Count Act because it is blatantly unconstitutional.”

Trump acolytes like Mr. Cruz and Mr. Hawley should appreciate the need to reform this unconstitutional law.

… no Republican should want to be an accessory to any successful attempt to overturn the next election — including an effort by Democrats to exploit the law.

Did you catch that unsubtle attempt to both-sides the question? He goes on to suggest that it’s the Democrats that may abuse the ECA in 2024 and thus Republicans should support a statutory redo to prevent that heinous outcome.

Someone please make him stop. Cruz and Hawley caring about the constitution? Seriously?

Luttig argues that reform should include giving federal, yes, federal, courts the power to resolve disputes over state electors and to ensure compliance. Right. Remember Gore and Bush? And recall that the courts do not have command of the means to enforce anything. That power largely, if not entirely in practice, resides in the Executive Branch.

There are other details to Luttig’s proposals, but, frankly, madam, I don’t give a damn. The Republicans are so dug in on resisting any and every action supported by Democrats that the debate over electoral count reform could last decades. All the while Trump would be whining that he was cheated and his lunatic fringe supporters would continue attacking state capitols and Congress … unless and until the leaders of these fascist efforts are indicted, arrested, tried, and imprisoned.

Recall that the Republican Party has, among other things, embraced many of the conspiracy theories of QAnon, failed to discipline members like Lauren Boebert and Marjorie Taylor Greene, supported a president who lied and dissembled about a deadly virus that has now killed more than 915,000 Americans and maimed countless more, and twice refused to convict on impeachment in the face of overwhelming evidence of guilt. These people are not going to do anything to help the country resist the fascism they regularly promote.

If Luttig is right that “the future of our democracy depends on reform of the Electoral Count Act” that was enacted in 1887, we are in more trouble than rewriting an obscure statute can fix. It’s fine to say that “Republicans and Democrats need to put aside their partisan differences long enough to fix this law.” Fine indeed, but such proposals will have no credibility as long as the planners/leaders/major perpetrators of January 6 walk free. Senators Manchin and Sinema have put the last nail in the myth of bipartisanship.

And that’s the one point that Luttig got right:

the only members in Congress who might not want to reform this menacing law are those planning its imminent exploitation to overturn the next presidential election.

If you remain in doubt as to who they are, their names may be found here, https://bit.ly/3gPVNwM, in the updated Congressional Hall of Dishonor

In closing, let me repeat: no statutory language changes are going to protect our democracy from elected and unelected officials who have no respect for law or oaths of office. The Republican Party has made clear beyond reasonable doubt that it is committed to obtaining and keeping power permanently by whatever means are necessary. If it were otherwise, it would have formally repudiated the lying traitor Donald Trump. Instead, it has embraced him as its leader. Just ask Lindsey Graham.

People who believe in the American democracy, however flawed it may be, had better remain alert to the danger and act/vote accordingly. Don’t be distracted by appeals to bipartisanship and unity, however (or not) well-intended. We’re well past the point of no return.

A Picture is Worth ….

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Are you offended by the Featured Meme above? If yes, you’re probably a Republican. Kind of a litmus test, you might say. It’s art, but it’s art with a message.

Of course, there are reasons to be offended by it. It involves a child. It’s about violence done to children. It also relates, in a manner of speaking, to religion. Yet, it’s not about religion exactly. It simply says that people who are prepared to sacrifice children to school shootings to continue having unlimited access to guns for anyone and everyone while also claiming to be a Christian following the teachings of Jesus is a **** ing hypocrite. Politest way to put it. I’m having a hard time being polite these days, what with anti-vaxxers prolonging the pandemic and Trumpers still believing in phantasmagorical conspiracy theories. The suffering conitnues, and for the anti-vaxxers, anti-mandaters and other aggrieved haters, I have no more f***s to give.

Meanwhile, here is the latest collection of memes/photos/call-them-what-you-will. These items say much about our society and the issues we face now. I provide them for those of you wise enough to stay off Twitter and Facebook from which they have been purloined. But some are very clever and, I think, worthy of wider distribution, a picture being worth a thousand words and all.

WARNING: This is political art. Some of it is harsh. It’s art meant to convey a point of view, not merely an interesting array of shapes, colors and so on. As such, it has jagged edges and sharp points. Our democracy and thus our country, in my opinion, are under extreme threat. If you’re concerned about the jagged edges and sharp points, please stop now and await my next kinder, gentler post.

The Real Election Fraud – How to Fix It

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Subtitle: Gilead is almost here. It can be stopped.

The so-called Republican Party supports Donald Trump’s Big Lie that the 2020 election was stolen, despite the reality that no factual evidence to support that claim has ever been produced in dozens of court cases or “audits,” not even in “audits” run by Trump’s most committed followers. Trump’s lawyers have been sanctioned for failing to properly research the factual basis for the election challenges they filed. This led to Republican-controlled state legislatures passing laws designed to suppress Democratic votes and, failing in that, to permit those same legislatures, or their appointed election hacks, to overturn the votes of their citizens and award the presidency to Donald Trump in 2024.

Such a step would, obviously, signal the end of American democracy and the establishment of a dictatorship by what purports to be “lawful means.” It might also/should lead to a second civil war. [Aside: if Republicans’ lust for power should lead to a civil war, what do you suppose our adversaries, like Russia, will do while our national government is distracted in such a struggle?]

While the American Civil Liberties Union and others are filing lawsuits to challenge many of these actions, it is far from clear that the courts will intervene. The bedrock principle of separation of powers provided for in the Constitution will then also cease to exist. America as we know it will cease to exist. The Republic of Gilead will have arrived in America. If you don’t recognize that phrase, please read, at once, The Handmaid’s Tale (1985) by Margaret Atwood. If you want to see what that looks like, read some of the stories from Tennessee where religion is now being used, under state law, to permit discrimination in delivery of adoption services. https://bit.ly/3qQNSVJ

There is a partial solution, and it should be adopted immediately. The Constitution, in Article I, Section 4, Clause 1, states that the,

Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations …. [bold face added by me throughout post]

It is time for the federal government to stop playing whack-a-mole with the states. The federal government should take full control of the process by which the national legislature is elected. Such a step would not, by itself, prevent the states from trying to tilt the playing field for other offices but it would make it much more difficult. If done right, it would establish a very high barrier against interference in the presidential election.

There is no ambiguity in that conferral of federal power. The National Constitution Center agrees:

Although the Elections Clause makes states primarily responsible for regulating congressional elections, it vests ultimate power in Congress. Congress may pass federal laws regulating congressional elections that automatically displace (“preempt”) any contrary state statutes, or enact its own regulations concerning those aspects of elections that states may not have addressed. The Framers of the Constitution were concerned that states might establish unfair election procedures or attempt to undermine the national government by refusing to hold elections for Congress. They empowered Congress to step in and regulate such elections as a self-defense mechanism. [https://bit.ly/3GnXRay]

To the same effect, a group of constitutional scholars filed a friend-of-the-court brief in Shelby County v Holder, 570 U.S. 529 (2013), the case in which the Court eventually gutted the Voting Rights Act of 1965:

… the Framers wanted to make sure that state and local officials couldn’t undermine federal elections. [https://bit.ly/3rbVyRp]

Further, the Supreme Court itself has held that,

the Framers understood the Elections Clause as a grant of authority to issue procedural regulations, and not as a source of power to dictate electoral outcomes, to favor or disfavor a class of candidates, or to evade important constitutional restraints [quoted favorably from U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779 (1995) in Cook v Gralike, 531 U. S. 510, 523 (2001)]

The Court made clear that,

“manner” of elections as we understand it, … in our commonsense view that term encompasses matters like “notices, registration, supervision of voting, protection of voters, prevention of fraud and corrupt practices, counting of votes, duties of inspectors and canvassers, and making and publication of election returns. [case cites omitted]

Justice Kennedy concurred in the Court’s opinion, but added this:

A State is not permitted to interpose itself between the people and their National Government as it seeks to do here. Whether a State’s concern is with the proposed enactment of a constitutional amendment or an ordinary federal statute it simply lacks the power to impose any conditions on the election of Senators and Representatives, save neutral provisions as to the time, place, and manner of elections pursuant to Article I, §4 ….

The dispositive principle in this case is fundamental to the Constitution, to the idea of federalism, and to the theory of representative government. The principle is that Senators and Representatives in the National Government are responsible to the people who elect them, not to the States in which they reside. [emphasis added]

These principles governing the scope of federal power over elections for Congress are very longstanding:

It cannot be doubted that these comprehensive words embrace authority to provide a complete code for congressional elections, not only as to times and places, but in relation to notices, registration, supervision of voting, protection of voters, prevention of fraud and corrupt practices, counting of votes, duties of inspectors and canvassers, and making and publication of election returns — in short, to enact the numerous requirements as to procedure and safeguards which experience shows are necessary in order to enforce the fundamental right involved. And these requirements would be nugatory if they did not have appropriate sanctions in the definition of offenses and punishments. [Smiley v Holm, 285 U.S. 355, ___ (1932)]

That should be enough to settle the question whether the states can establish rules that prevent Congress from regulating federal elections if it chooses to do so. They can’t.

The argument for federal intervention seems conclusive until one encounters the Shelby County case that held unconstitutional the pre-clearance provisions of the Voting Rights Act of 1965 (the Congressional renewal of 2006) in one of the worst instances of judicial overreach and legislating by the Court in its history. The 5-4 majority opinion was written by Justice Roberts, the current Chief Justice.

In Shelby County, the Supreme Court held that the pre-clearance provisions of the Voting Rights Act (states with a history of racial discrimination could adopt no law on voting until advance-approved by the federal government) were unconstitutional. This was so, the Court said, because the problem at which they were directed had disappeared and that a “current problem” was essential to a law that was such a drastic departure from the principles of federalism whereby the states ran the election process.

The Court’s central reasons for this grotesque outcome were, in my opinion, a “conservative” hostility to the very constitutional principles the majority purported to uphold. The opinion’s opening lines reveal this in Roberts’ characterization of section 5 as “a drastic departure from basic principles of federalism” and of section 4 as “an equally dramatic departure from the principle that all States enjoy equal sovereignty.” The cart that follows that horse had nowhere to go but oblivion.

The Court ignored entirely the Constitution’s empowerment of Congress to regulate by direct action the election of members of Congress, claiming that

“the Framers of the Constitution intended the States to keep for themselves, as provided in the Tenth Amendment, the power to regulate elections.”

That is simply wrong. The Tenth Amendment to the Constitution says,

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The “powers … delegated to the United States” plainly include Article I, Section 4, Clause 1 explicitly empowering Congress to regulate Congressional elections.

The Court thus completed its elevation to quasi-legislature, eviscerating the separation of powers. Despite a long continuous history of (mostly southern) states inventing new ways to evade injunctions and settlements aimed at racially motivated voting restrictions, the Court made a finding of fact that the problems at which the Voting Rights Act had been directed and repeatedly re-enacted had, by 2013, disappeared and were unlikely to return. There was thus no current need for the legislation and in the Court’s view, that fact rendered it unconstitutional.

I would have thought that the question of the current need for legislation was as distinctly a legislative function as was the original question whether the legislation was needed at the time of its enactment. In principle, after Shelby County, there seems to be nothing standing between any piece of legislation and this Supreme Court’s disposition to decide that Congress was simply wrong about the need for it and thus the legislation is dead on arrival.

One can only wonder which other federal statutes have outlived their usefulness in the minds of the conservative Justices and how long it will be before the principle of Shelby County will be used to justify their rejection based solely on the Court’s view that the legislation is no longer necessary.

True enough, the Court in Shelby County made much of what it called, with relish, the “extraordinary and unprecedented features” of the law’s pre-clearance procedures. But Congress was dealing with an intractable history of racially discriminatory legislation, regulation, and practices, one with long-standing roots in history and culture. The Court swept that aside by looking at the current data on voting in the subject states, finding that all was well, and thus holding that the legislation had long ago accomplished its original purposes. In the conservative majority’s view, by 2013 the law was just a meaningless burden on the oppressed states that had for many decades been guilty of racially discriminatory voting policies but had cleaned up their act. The Court presumed to judge whether those problems and tendencies, buried in southern culture, would rise again. It didn’t think so.

It was oh so wrong.

The extent of that wrongness is well shown in these quotes from the Shelby County opinion:

In 1965, the States could be divided into two groups: those with a recent history of voting tests and low voter registration and turnout, and those without those characteristics. Congress based its coverage formula on that distinction. Today the Nation is no longer divided along those lines, yet the Voting Rights Act continues to treat it as if it were….

If Congress had started from scratch in 2006, it plainly could not have enacted the present coverage formula. It would have been irrational for Congress to distinguish between States in such a fundamental way based on 40-year-old data, when today’s statistics tell an entirely different story.

It could not be any clearer that the Court is acting as a legislature in making these judgments. If there is any saving grace in this debacle, it is the concluding language that purports to limit the effect of what the Court did:

Our decision in no way affects the permanent nationwide ban on racial discrimination in voting found in §2. We issue no holding on §5 itself, only on the coverage formula. Congress may draft another formula based on current conditions….

Our country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.

If this weren’t so egregious an error by the highest court, I would laugh out loud. In reading that last paragraph, I immediately thought of the pathetic cliché, “I’m not racist; why some of my best friends are Black.”

Two important footnotes: (1) Justice Thomas, one of the two dissenting voices in the recent decision to allow the National Archives to release the Trump papers to the January 6 Select Committee, said he would have held all of Section 5 unconstitutional along with the coverage formula. No surprise there. (2) the remarkable dissent penned by Justice Ginsburg (RIP incisively destroyed the central premises of the majority opinion with an overwhelming recitation of facts the Court chose to ignore:

Jurisdictions covered by the preclearance requirement continued to submit, in large numbers, proposed changes to voting laws that the Attorney General declined to approve, auguring that barriers to minority voting would quickly resurface were the preclearance remedy eliminated.

Justice Ginsburg identified some of the “second generation” techniques being employed to defeat the will and ability of minority voters, such as racial gerrymandering and at-large districts that produced fatal dilution of minority voting blocs. She noted that,

… the record before Congress was huge. In fact, Congress found there were more DOJ objections between 1982 and 2004 (626) than there were between 1965 and the 1982 reauthorization.

… between 1982 and 2006, DOJ objections blocked over 700 voting changes based on a determination that the changes were discriminatory.

Those findings alone dispose of the majority’s manufactured claim that “our country has changed.”

Justice Ginsburg also made the point that the 2006 extension of the pre-clearance provision was no casual act, noting that the vote to extend the Act was 390 to 33 in the House and 98 to zero in the Senate. Congress’ intent to extend the protections of the Act in the face of continued recalcitrance and artifice by many states could not have been clearer.

In addition to completely undermining the factual basis claimed by the majority, Justice Ginsburg highlighted the majority’s massive legal mistake by pointing out that the principle of equal sovereignty among the states relates to the admission of new states and that the Court’s use of the doctrine was thus unprecedented. She concluded her devastating dissent with this:

After exhaustive evidence-gathering and deliberative process, Congress reauthorized the VRA, including the coverage provision, with overwhelming bipartisan support. It was the judgment of Congress that “40 years has not been a sufficient amount of time to eliminate the vestiges of discrimination following nearly 100 years of disregard for the dictates of the 15th amendment and to ensure that the right of all citizens to vote is protected as guaranteed by the Constitution.” …. That determination of the body empowered to enforce the Civil War Amendments “by appropriate legislation” merits this Court’s utmost respect. In my judgment, the Court errs egregiously by overriding Congress’ decision.

And, indeed, here we are. Multiple Republican states are passing a multitude of laws to make voting more difficult with almost certain disparate impacts on voters most likely to vote Democratic. For a dramatic statement of the problem, see Senator Klobuchar schooling everyone on this: https://bit.ly/3tQXSQS

The Republicans haven’t stopped there. They are replacing election officials with their partisans in anticipation that Democratic voting will overcome the implanted obstacles. In that case, the Republicans are preparing the groundwork for simply rejecting the vote counts and declaring the Republican candidates the winners. The main goal of this action is, of course, to install Donald Trump back into the presidency in 2024 even if the voters reject him.

If you think I am exaggerating, read these samples: https://wapo.st/3GzjIvJ [Election officials in Texas reject hundreds of ballot applications under state’s new voting restrictions]:

The clerk’s office in Travis [County, Austin] said it does not have enough information from the secretary of state to provide voters with what they must do to fix their applications. Many other counties are experiencing the same high rejection rate,” the office said in a statement. “We have not received instructions from the state outlining what our office can do to assist voters in submitting a completed application.”

And it has now been disclosed that at the end of 2020 there was a multi-state effort by Republicans to submit fake collections of electors voting for Donald Trump. See, among others: https://bit.ly/3AnBf7G This seems like the plot of a cheap B-grade movie but it’s real. No more evidence is needed of the dishonesty and determination of Republicans throughout the country to undermine democracy and install Trump as dictator.

I am, of course, aware that two putative Democratic senators, Manchin and Sinema, have aligned themselves with Republicans to prevent the adoption of federal voting protection laws. https://nyti.ms/33HxBtw They almost certainly will stand with Republicans in opposing any other federal regulation of voting even if limited to congressional seats as the Constitution provides. Hypocrisy is the missing name for Republican politicians and the Democrats who align with them.

Realistically, we must acknowledge that the constitutionally appropriate solution I am advocating (the complete federal regulation of elections for House and Senate members) is not going to happen until the party balance in the Senate is changed or the filibuster is eliminated. The most likely path is to remove the turncoats Manchin and Sinema, and elect Democrats in other states where Republicans now have Senate seats. This is a tall order to put it mildly, but it is likely the only way to prevent Republicans from simply “taking” the presidency in 2024.

History is not favorable for this outcome. Usually the party “in power” loses seats in Congress in the mid-term elections. If Democrats don’t overcome that history and lose majorities in both houses of Congress, the Republicans will simply stop any legislation favored by Democrats and it will be ‘game over.’

It appears from my sporadic observations that the Democratic Party lacks a strategic vision that spells ‘high likelihood’ of success. The news is generally dominated by Republican talking points. Democratic politicians in online gatherings I have attended spend most of the time with canned talking points. There is little or no follow-up with compelling data points. Trump appointed judges are doing just what the conservatives wanted them to do. Main case in point is the decision just handed down: a nationwide injunction against the President’s vaccine mandate for federal employees.

The President has already achieved many major goals. As he points out, the Republican Party stands for nothing but obstruction, the official Party of No. Who is going to tell that story in terms the voting public can understand? When are they going to start? The run-up to mid-terms is underway now.

It’s great that the Democratic Party stands up for diversity and economic equality, goals I endorse without qualification, but the voters are likely more interested in tangible gains than in broad statements of high principle. Democrats need to stop sounding like politicians and talk about delivered deliverables and what comes next. Every day that goes by without a coherent plan to reach the voters with comprehensible truths is a lost opportunity that cannot be recaptured. The Republicans are wasting no time in undermining the ability of Democrats to vote. We need to move now.

Maybe multitudes are a strength, but I continue to be put off by the number of organizations claiming Democratic credentials seeking donations but stating no clear use of the money. New groups seem to crop up every week. We’re not going to win this way. The national Democratic Party needs to address this and bring the legitimate disparate groups together in a coherent strategy. It’s harder than for Republicans who know exactly what their goals are. It’s time to get the act together.

Good, Bad, Ugly and … Bad

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My last post at, or as close as my reflexes allowed, the stroke of midnight, when last year became this year, was a record of brevity. Nevertheless, last year had some moments and I am sharing them now. Some are good, some are bad, some are ugly, and some are just plain bad. The narrative will help sort them out, but you will, as always, be the judge.

Looking ahead, and backward as well (2021 will not go away that easily), we have much to look forward to, even as many of us crave the justice that so far has failed to materialize regarding, among many other things, the attempt by Donald Trump to overturn the results of the 2020 election. Trump’s attempt was supported by, and likely planned by, many Republicans in Congress who remain in their positions, enjoying the extraordinary privileges and comforts accorded to nationally elected representatives of the people. The same is true of members of Trump’s Cabinet who, from some compelling indications, were complicit and indeed actively engaged in the coup attempt.

Those of us who retain our rational faculties even after the Trump presidency and a year of non-stop Republican-led terror and fantasizing are not going to be satisfied with letting bygones be. As the clock ticks down toward the 2022 mid-term elections, and many experts predict a traditional outcome in which the “out” party resumes control of Congress, the omens for the future of our democratic republic appear dark indeed. But it doesn’t have to be that way. We outnumber them – our future is in our own hands, not theirs, unless our indifference lets them have the victory they do not deserve.

With that in mind, and given the dual personality of this post, here are some of the planned topics you can look forward to in 2022:

Fahrenheit 2021 – the crypt has opened and the book-burners walk among us

Life Under Republican Rule – do you want leaders who believe in magic?

States – What Good Are They? – how states promote tribalism

Anti-Vaxxers Must Take No Medications – if they read the labels ….

Books, Truth and Elections – truth is not infinitely malleable

Voice Bots – how to remove the human element from humanity

The Fear Equation – what is everyone so afraid of?

Communicating with the Voter – ya think?

Cliches of the Day – substituting slogans for thought

… and others in a seemingly infinite list. Meanwhile, back at the launchpad, here are some things to ponder and, hopefully, enjoy in a perverse 2022 kind of way.

Cloudy skies as seen from the roof:

In the Yikes Department, these cars were, according to reports, parked on leaves that had been deposited in the curb and a hot catalytic converter did its thing. I don’t know whether that’s really what happened, but Yikes.

On Christmas Day, we visited the National Mall to get some fresh air and see what was going on. Generally, it was a normal-looking day, as these photos show. Many visited the military memorials.

Some walked along the Reflecting Pool.

One person visited with himself. We’re pretty sure he enjoyed the experience.

A few days later we drove into the Virginia countryside to introduce my stepdaughter to the wonders of Hill High Orchard and pie place extraordinaire, about which I have previously written. The plan was to eat lunch outside at a restaurant in Bluemont, VA. When we arrived, however, we saw these “signs” hanging from a building on the property:

We returned to the car and went elsewhere. We will NEVER eat at a place owned by people who believe Trump won the election. Not now, NOT EVER.

Which brings us to Meme Time. Someone wise once said that a picture was worth a thousand words. I think that’s mostly true. These memes/photos were copied from tweets and Facebook posts. Where they originated, I have no idea but kudos to the people who created them. They speak volumes about the challenges we face. There is no doubt the country has made many mistakes. In that sense it is “normal.” But we also aspire to higher ideals, and it is those that we say “define America.” So, with a smile on our faces, let us confront our ghosts and move ahead as a people dedicated to the principles stated in the Declaration of Independence:

We hold these truths to be self-evident ….

An American Team No More

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Americans once believed that when push came to shove, we would unite against common adversaries. A generalization, to be sure, but I believe it was accurate overall. It was true despite our ongoing differences about things like balanced budgets, the size and role of government and many others arising from America as the Melting Pot. Differences in the Pot were inevitable and, in some cases, resulted in sharp divisions. But, still, we believed that, faced with an outside adversary, Americans would come together as one nation to fight back.

World War II was a good example in “modern” times. Men and women went to war, more women worked in factories doing the necessary, and often dangerous, work that men had performed before going off to fight the Nazis and the Japanese. It was a terrible time. Many were grievously wounded, physically and mentally, and many died, leaving behind others ill-equipped to go it alone. People did without many luxuries. Ration stamps were used to allocate food, among other things. It was a a terrible time.

The idea of Americans united against outside adversaries found expression in movies involving alien invaders. Some of those movies showed the entire world coming together to fight the aliens. Faced with an outside threat, often with more advanced technologies, “we” prevailed with grit, ingenuity and a sense of common purpose. That was, of course, a fantasy but “we” always won in the end.

No more. We have a new common enemy that is attacking the entire world from within. This enemy is invisible and highly adaptable. We have seen its like before and always, always came together, solved the puzzle and prevailed. And yes, I know there were always outliers, but they were the exceptions. In 1918, the closest modern parallel to COVID-19,

It is estimated that about 500 million people or one-third of the world’s population became infected with this virus. The number of deaths was estimated to be at least 50 million worldwide with about 675,000 occurring in the United States. Mortality was high in people younger than 5 years old, 20-40 years old, and 65 years and older. The high mortality in healthy people, including those in the 20-40 year age group, was a unique feature of this pandemic. [https://bit.ly/3ql2V8v]

You likely know that the United States blew past that 675,000 death figure some time ago. As of two days ago, December 22, U.S. COVID deaths had reached 805,112 and climbing – almost 1,400 deaths on that one day and a 7-day moving average approaching 1,200 and rising.

The numbers are so large that our minds balk at acceptance and comprehension. But the numbers are real. The sickness and death are real. We are not even counting the cases of Long Covid, the condition in which the debilitating effects on the heart, lungs and brain (among others) last beyond the initial illness for … no one knows how long.

Our inability to comprehend is part, but only part, of the reason that so many – in the millions – people deny that COVID is real. Some are so deep in denial that, even when hospitalized in critical or worse condition, they continue to claim their disease is something else, that the doctors and nurses are lying to them when they say, “you have COVID.”

Whatever the roots and reasons that tens of millions refuse to get vaccinated, those people appear to be lost to the team – to Team America. The huge number of unvaccinated Americans – two years into the pandemic – are a breeding ground for the virus to mutate. And mutate it does. All viruses do. The anti-vaxxers are responsible for the prolongation of the pandemic and the personal and economic destruction that the virus has inflicted. Omicron has swept across the globe in weeks, displacing the Delta variant. There is no end in sight. And the next variant may not be as “mild” as Omicron.

The best we can hope for is that, slowly and at huge unnecessary cost, we will reach the point of so-called “herd immunity” when there are an insufficient number of vulnerable hosts that the virus cannot continue its deadly passage through the population. And, of course, medical science is delivering more effective treatments, the latest of which (in pill form) was just announced. Maybe we’ll reach the point where COVID is “just another flu.” Maybe.

Meanwhile, millions more will suffer. According to every credible source, COVID deaths in the United States are expected to exceed 1,000,000 in the near future. Eventually, maybe, we will win again. But it won’t be because of Team America, the coming together of citizens to fight and vanquish a common and deadly enemy. It seems we’re past that. Tens of millions of our fellow citizens are content to have others suffer and die under the name of mindless slogans. Freedom! My body, my choice! Nobody tells me what to put in my body! And on and on.

Instead of a united front against this deadly enemy, we have tens of millions reciting slogans to justify and explain why they are no longer members of the team. The price for their ignorant intransigence has been/will be very steep indeed.

This problem is, of course, only one manifestation of a mental state that afflicts our society. We can conclude that because there is a powerful identity among the anti-vaxxers and the evangelicals/Trumpists/Republicans. Their delusional state of mind regarding the pandemic is closely aligned with their willingness to believe many other unbelievable ideas. Chief among them is the idea that the January 6 assault/attempted coup was not Trump supporters but was engineered, rather like the pandemic, by a global elite of BLM, antifa, liberal/progressive Democrats and others of like mind, aided, if not led, by the federal government (you know, the Deep State lying in wait to destroy the country).

People who hold such beliefs do not comprehend the logical absurdity that those “elites” would have tried to stop the certification of President Biden’s victory (the candidate they favored) in order to continue the presidency of Donald Trump (the candidate they fervently opposed). If they can’t see that, they can’t see the point of joining with other Americans, and other peoples around the world, to stop the pandemic with the only tools that work. They are lost to our team, probably forever. Donald Trump didn’t create these people, but he surely inspired them.

Going forward, then, policy makers must understand the full extent to which our “team” has been broken, perhaps permanently. That means, among other things, that there is no longer anything like “politics as usual.” The aliens have arrived, and they are among us. If we’re not careful, they may kill us all.

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SHINING SEA

Ideas & Images

Tag Archives: Trump

Trump’s Documents – Trump’s Crimes

The Stench from the Bench

Is It Too Late?

The Triumph of Hope Over Experience?

Trump May Skate on Obstruction of Justice

Past the Point of No Return

A Picture is Worth ….

The Real Election Fraud – How to Fix It

Good, Bad, Ugly and … Bad

An American Team No More

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