Sunday, December 13, 2020

Sunday Reading

The Last Legal Gasp — Amy Davidson Sorkin in The New Yorker.

When the state of Texas asked the Supreme Court, this week, to disenfranchise millions of voters in four other states—Georgia, Michigan, Pennsylvania, and Wisconsin—it said that it was doing so because “no other remedy or forum” existed. The Electoral College casts and counts its votes on Monday, and, Texas claimed, the Supreme Court was the “only venue” that could “protect” its Electoral College votes from being “cancelled.” It was the “only court that can hear this action quickly enough” to throw out those four states’ electors and force their legislatures to choose new ones. Presumably, the new electors would be more to Texas’s—or, rather, to Donald Trump’s—liking. The President had asked to join the suit, which he called “the big one.” Perhaps four years of dealing with a President who rewards inflated tributes to his power had given someone involved with this lawsuit the impression that such an outrageous argument might work. It didn’t; on Friday evening, the Court, in a brief order, threw out Texas’s lawsuit, saying that the state had no standing to even bring it.

With that, the big one is done. There is no forum or venue, under our Constitution, to do what Texas and Trump wanted, because what they wanted was utterly unconstitutional. As Pennsylvania’s reply, submitted by attorneys for the state, including Attorney General Josh Shapiro, put it, “Texas invites this Court to overthrow the votes of the American people and choose the next President of the United States,” in what would be a “seditious abuse of the judicial process.” It is a relief that the Justices refused to even entertain that invitation. The only ones who took even the tiniest step in Texas’s direction were Justices Samuel Alito and Clarence Thomas. Alito, in a short statement that Thomas joined, said that he did not believe the Court had the “discretion to deny the filing of a bill of complaint” because the case fell within its “original jurisdiction.” (In short, certain disputes between states are heard directly by the Supreme Court rather than working their way up through lower courts.) But Alito added that he would have granted Texas no “other relief”—the state had asked for an injunction to halt the Electoral College’s vote counting, among other things—and that he expressed “no view on any other issue.”

Even the Court’s conservatives, then, seemed to recognize that this was not a constitutional controversy that merited its involvement but a crude power grab. And yet so many other supposedly serious figures in the Republican Party did not. This lawsuit was not some folie à deux in which Trump and Texas—or, more precisely, Texas’s attorney general, Ken Paxton, who has his own legal problems—got caught up in their own private madness. No fewer than seventeen states that Trump won signed on to what’s known as an amicus curiae brief urging the Court to take Texas’s suit. Missouri’s attorney general, Eric Schmitt, played a leading role in that effort, but all the state officials who put their names to it rushed to do something shameful. So did the members of the House of Representatives who similarly expressed their support. There are a hundred and twenty-six of them, at last count. (Two are from New York: Elise Stefanik and Lee Zeldin.) Many of them are not marginal figures; the list includes Kevin McCarthy, the House Minority Leader. It is enraging and also profoundly sad that these Republicans value our democracy so little. Why were they so willing to treat a system that, for all its flaws, has proved sturdy even in the Trump years as a disposable partisan toy? How could they, without mortification, back a brief that included the suggestion that the election must be crooked, because the chance that Trump’s opponent could have won the four states was less than one in “a quadrillion”?

There is no acceptable justification. There needs to be a real reckoning; if prominent Republicans do not now use the Court’s decision to renounce Trump’s campaign to overturn the election, they will do real and lasting harm to the country. The early signs are not good. The head of the Texas G.O.P. put out a statement suggesting that “law-abiding states” might want to form their own “Union of states,” while others, as of Saturday morning, were silent. Trump, of course, is unrepentant. He tweeted, “WE HAVE JUST BEGUN TO FIGHT!!!”

It was never enough for Republicans who supported the suit to tell themselves that they could be as ridiculous as they liked, because the Supreme Court wouldn’t go for the argument, anyway. If they didn’t know how much Trump’s efforts had eroded his supporters’ faith in the integrity of the electoral system, they should have realized it from reading the briefs that Texas and Trump filed, which, perversely enough, cited those doubts as a rationale for why the Supreme Court should intervene. “The nation needs this Court’s clarity,” Texas argued—as if the Court should reward them for creating confusion by throwing out electors. Trump’s brief made that point even more crassly. “The fact that nearly half of the country believes the election was stolen should come as no surprise,” it said, arguing that, by ruling in Texas’s favor, the Court would allow voters to “find solace” in an election result that excluded “illegal votes.” (All indications are that, by “illegal,” Trump means votes that were not cast for him; actual, specific allegations that there was fraud, backed by evidence, are conspicuously absent from the Texas and Trump briefs.) In short, Trump argued that because he threw mud on the election system’s machinery, the Court was obliged to junk it.

There is so much that is wrong with the Texas and Trump filings—not just legally but factually. The Pennsylvania reply referred to a “cascading series of compounding defects,” and a “surreal alternate reality.” The fallacies include Trump’s assertion that, since no candidate has ever won the states of Florida and Ohio without winning the Presidency, and he won both of those states, something must be “amiss” with the results. As numerous commentators have pointed out, that premise is simply not true: Nixon won Florida and Ohio in 1960, but Kennedy won the election. Of course, it doesn’t even matter—there is no clause in the Constitution saying that, if a candidate wins both those states, balloons instantly fall from the ceiling and the lucky contestant is awarded the Presidency. The fake Florida-Ohio standard may be a final example of how Trump’s constant lies serve to distract and disorient anyone who tries to keep up with them. For example, a person might spend a lot of time actually contemplating the election of 1960—perhaps it was stolen from Nixon?—without getting to the bigger conceptual fallacy.

Similarly, Texas argued that the power to decide how electors are appointed, which the Constitution gives to state legislatures, had, instead, been seized by others: state-government officials, and shadowy actors. They had, Texas claimed, used the pandemic as a justification to make the elections less secure, in some cases for partisan advantage. Each of the four states replied that Texas was factually wrong about what the actual practices in their states were. Texas’s “basic arguments about how Wisconsin state law works are flat out wrong,” Wisconsin wrote in its reply. Pennsylvania put it even more bluntly when addressing Texas’s list of the supposedly murky practices there: “untrue,” “false,” “utterly false,” “nonsense.” And Texas was legally wrong, because any changes were, in fact, in keeping with the existing laws of those states. “Texas’s suggestion of a wide-ranging conspiracy is a fantasy,” Pennsylvania’s brief said. More than that, Texas was constitutionally wrong in thinking that it could, as Pennsylvania put it, “dictate the manner in which four sister States run their elections.” Georgia referred to the dispute as “Texas’s attack on Georgia’s sovereignty.”

The Supreme Court didn’t even get to those arguments. It stopped at the first major flaw it came to in the case: standing. This is the principle that a party bringing a lawsuit must have been injured in a way that is judicially “cognizable,” which, in effect, means that it has suffered a real—not a speculative or a theoretical—injury of a sort that the law can recognize and redress. Texas made a convoluted argument about how it would be harmed if Kamala Harris, as Vice-President, ever had to break a tie vote in the Senate, which didn’t even track logically. Texas also claimed that it had standing to sue the states because their actions “debased the votes of citizens in Plaintiff State and other States that remained loyal to the Constitution.” The very framing of that argument—the imputation of disloyalty to the Constitution on the part of Georgia, Michigan, Pennsylvania, and Wisconsin—is an act of bad faith. It is also a dangerous provocation.

“Texas suffered no harm because it dislikes the results in those elections,” Pennsylvania replied. “Texas has no legitimate interest in overturning the will of Wisconsin’s voters,” that state said. “There is no allegation that Georgia targeted Texas,” Georgia’s reply said, adding that, while there was no evidence that Texas would be harmed, Georgia certainly would be if its election results—which, as the reply noted, have been counted three times now—were ignored. Michigan, too, said that Texas was attempting to “disenfranchise millions of Michigan voters in favor of the preferences of a handful of people who appear to be disappointed with the official results.” Disappointment is not a legally cognizable injury. The Court agreed, saying that Texas had no judicially cognizable interest in how “another State conducts its elections.”

Courts obviously have a role in protecting election integrity and insuring that individual voting rights are not violated. But Texas is not, say, a voter who has wrongly been subjected to a poll tax. And, as each of the four sued states noted, Trump and his allies have brought dozens of suits in courts across the country, many of which judges have heard, and some of which have reached the Supreme Court. He just keeps losing them. The Supreme Court was the “only” place the President and his allies could go—because they’d already gone everywhere else. Most important, Trump went to the voters on Election Day. And they chose Joe Biden.

Are we going to forgive and forget once this is all over? Will we let those who sided with Trump in this blatant attempt to subvert the will of the electorate and the Constitution get away with it? Will the 126 Republicans who signed on to this coup attempt face any kind of consequence for their sedition?

In all likelihood, probably not. They are counting on the short-term memories of the voters and the Democrats’ queasiness at making a fuss. It’s worked in the past. But I do like this idea from Rep. Bill Pascrell (D-NJ) via Charlie Pierce:

Ari Berman, the relentless defender of the franchise against all enemies foreign and domestic, has been suggesting on the electric Twitter machine that none of the 126 Republicans who have signed onto the Covenant of Sedition should be seated when the new Congress opens in January. This I find intriguing because, after all, this whole election was corrupt because people said mean things to other people. Rep. Bill Pascrell, whose pursuit of the president*’s tax returns has been dogged, does Berman one better. He would refuse to seat them based on Section III of the 14th Amendment. It reads as follows:

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

Down with the traitor, up with the star!

Doonesbury — Color me livid.

Thursday, December 10, 2020

Dumbest Lawsuit Ever

I’m not a lawyer, but you don’t have to be one to come to that conclusion.

I may need to take back what I said about Rep. Kelly’s PA suit being the dumbest case I’ve ever seen filed on an emergency basis at the Supreme Court.

This new one from the indicted Texas AG Ken Paxton (but missing the name of Texas’s Solicitor General, who surely would not sign this garbage) probably should win that prize.

Steve Vladeck canvasses the reasons why the Court won’t touch the case (including its rules on taking cases directly under its original jurisdiction).

My view in brief: this is a press release masquerading as a lawsuit. Texas doesn’t have standing to raise these claims as it has no say over how other states choose electors; it could raise these issues in other cases and does not need to go straight to the Supreme Court; it waited too late to sue; the remedy Texas suggests of disenfranchising tens of millions of voters after the fact is unconstitutional; there’s no reason to believe the voting conducted in any of the states was done unconstitutionally; it’t too late for the Supreme Court to grant a remedy even if the claims were meritorious (they are not).

What utter garbage. Dangerous garbage, but garbage.

I can’t top that.

Sunday, December 6, 2020

Sunday Reading

Creating Theatre in a Time of Plague — Mark Kennedy at the Associated Press on how performers and playwrights have adapted to take the stage during the pandemic.

Jefferson Mays performs his one-man show “A Christmas Carol” for streaming. Photo via AP

There’s theater on Broadway. You just have to adjust your sights.

More than a hundred blocks north of Manhattan’s shuttered theater district but on that same famed thoroughfare, an actor recently read his lines from a huge stage.

But there was no applause. Instead, all that was heard was a strange command for the theater: “And cut!”

Tony Award-winner Jefferson Mays was performing multiple roles for a high-tech “A Christmas Carol” that was being filmed for streaming this month at the empty 3,000-seat United Palace.

The one-man show is an example of how many who work in theater are increasingly defying COVID-19 by refusing to let it stop their art, often creating new hybrid forms.

“Because it’s such a roll-up-your-sleeves business, theater people figure it out,” said Tony Award-winning producer Hunter Arnold, while watching Mays onstage. “Of everything I’ve ever done in my life, it’s the place where people lead from ‘how?’ instead of leading from ‘why not?’”

The coronavirus pandemic shut down theater and the TV/movie industries in the spring. Film and TV production have slowly resumed. Live theater is uniquely tested by the virus, one reason it will be among the last sectors to return to normal. Props and costumes are usually touched by dozens each night, an orchestra is crammed into a pit, backstage areas are small and shared, and audiences are usually packed into seats. New ways are needed.

Mays’ “A Christmas Carol,” which was filmed on a high-tech LED set, veers much more filmic than most other streaming theater options and is raising money for suffering regional theaters — one stage production helping others during the pandemic.

Other green shoots include radio plays, virtual readings, online variety shows and drive-in experiences that combine live singing with movies. The cast of the musical “Diana” reunited on Broadway to film the show for Netflix before it opens on Broadway.

The San Francisco Playhouse recently offered screenings of Yasmina Reza’s play “Art,” an onstage production captured live by multiple cameras, with a crucial wrestling scene reimagined to keep social distancing. A musical version of the animated film “Ratatouille” is being explored on TikTok.

“We will conquer it. We are theater people. By God, we will conquer it and get it done,” says Charlotte Moore, the artistic director and co-founder of the acclaimed Irish Repertory Theatre in New York City.

Her company has put on a free streaming holiday production of “Meet Me in St. Louis” with a dozen cast members, each filmed remotely and then digitally stitched together. Moore directed it — appropriately enough — from St. Louis. Other theater pros are calling to ask how she did it.

The cast was mailed or hand-delivered props, costumes and a green screen. They rehearsed via Zoom and FaceTime. A masked and socially distant orchestra recorded the score, and the sets were beamed onto the actors’ screens.

“You learn minute by minute by minute along the way what works, what doesn’t, what to do, what not to do,” said Moore, who starred in the original Broadway run of “Meet Me in St. Louis” in 1989. “It’s torture and it’s thrilling — thrilling torture.”

Like many other theatrical hybrids venturing into the digital world these days, it’s not clear what to call it. It’s not technically live theater, but its soul is theatrical.

“It’s not definable in our current vocabulary,” Moore said. “It has to have a new definition, truly, because it’s certainly unlike anything that has been done.”

One of the companies to show the way forward was Berkshire Theater Group in western Massachusetts, whose “Godspell” in August became the first outdoor musical with union actors since the pandemic shut down productions.

Artistic director and CEO Kate Maguire refused to entertain the notion that the company — established in 1928 — would have an asterisk beside 2020 that said no shows were produced that year.

“We’re theater makers, we’re creators, she said. ”We should be able to figure out how to create something.”

So they used plexiglass partitions between each masked actor. The performers were tested regularly — at a cost of close to $50,000 — and had their own props and a single costume. Each was housed in their own living space — bedroom, living area and little kitchenette. In an open-air tent, they managed to pull off a crucifixion scene without any touching or lifting, itself a miracle.

Audiences underwent temperature checks and were separated by seats. Staff were placed in three protective bubbles: artistic, production and front-of-house. And there was monitoring: Last year it was an intimacy officer; this year it was a COVID-19 one.

Maguire thrashed out a 40-page agreement with the stage union Actor’s Equity Association. “We never had a positive test,” Maguire said. “We had five false positive tests,” which was “harrowing.”

She thanked grants for allowing her to keep her staff on payroll, making the stress level tolerable. It was clear audiences were hungry for theater: “I would watch people shoulders shaking as the show started because they were weeping,” she said. They’re doing another outdoor show now — “Holiday Memories.”

Since that first brave step, other theater companies have plunged into the void. Play and musical licensor Concord Theatricals says theater companies across the country are looking for flexibility in case of virus restrictions.

“We’re seeing many groups applying for small cast, easy to produce, plays and musicals. They’re even seeking casting flexibility and asking for permission to perform with or without an ensemble,” said Sean Patrick Flahaven, chief theatricals executive.

“There’s also a trend for groups to apply for both live performance and streaming rights. Many amateur theaters are producing single virtual performances to keep revenue flowing.”

Playwright Natalie Margolin decided to write a new play during the pandemic but not a conventional one. She imagined what the world would look like when it was a given that all social life existed on Zoom.

Hence “The Party Hop,” a play specifically to be performed on Zoom that’s set three years into quarantine in which three college girls hit the town — online. It became her first published play, and she got stars such as Ben Platt, Kaitlyn Dever, Beanie Feldstein and Ashley Park to perform in an online version, currently on YouTube. She hopes high schools and colleges will be attracted to a play reflecting the era.

“It was just exciting to take part in something where it wasn’t a placeholder or a replacement, and no one needed to imagine they were anywhere else than where they were to fully realize the piece,” she said. “It’s been exciting and heartwarming to see different ways theater has reinvented itself during this time.”

Theater makers have also leaned into the storytelling part of their craft, making The Broadway Podcast Network a hub for everything from audition advice to behind-the-scenes stories.

Launched shortly before the pandemic with 15 podcasts, the theater shutdown initially wiped out its revenue streams, advertising and sponsorship. The network has since righted itself and is growing with some 100 podcasts — from the likes of Tim Rice and Tonya Pinkins — plus benefits, show reunions and original programs, like the digital theater-based frothy soap opera, “As the Curtain Rises” with stars Alex Brightman, Sarah Stiles and Michael Urie.

“Even though we had lost all of our advertising, we just knew that this was important to our community, to keep our community connected and continue to tell stories,” said Dori Berinstein, co-founder of the network and a four-time Tony-winning Broadway producer. “It’s not anything that will ever replace live theater, but it’s an extension. It’s a different way of doing that.”

Barr’s Break — David Rohde in The New Yorker.

The Fox News host Lou Dobbs was among the first Trump supporters to denounce William Barr. On Tuesday, Dobbs began his nightly program by announcing “progress” in Donald Trump’s effort to remain in office and to vanquish “the insidious, radical Dems, corporate America, Big Tech, and the deep state, who have tried to overthrow his Presidency for more than four years.” Dobbs paused, briefly, and then lambasted Barr for having told the Associated Press earlier in the day that the Justice Department had found no evidence to corroborate Trump’s claims of election theft. “Today, a member of his own Cabinet appeared to join in with the radical Dems, and the deep state, and the resistance,” Dobbs said. “For the Attorney General of the United States to make that statement, he is either a liar or a fool or both. He may be, um, perhaps, compromised. He may be simply unprincipled. Or he may be personally distraught or ill.”

Barr’s actions during his tenure as Attorney General may be up for debate, but he is not compromised, distraught, or ill. Nor is he a member of a deep-state coup. There is no deep-state coup. As state and local Republican officials in six battleground states and nearly fifty judges have found, Joe Biden decisively won the 2020 election. Barr’s refutation of Trump’s false claims came late, but, nevertheless, it deserves praise. At long last, the country’s chief law-enforcement officer has defended American democracy. And that, in the waning days of the Trump Presidency, could cost him his job.

Rudy Giuliani and Jenna Ellis, the lawyers for the Trump campaign, immediately issued a statement accusing Barr of failing to seriously examine the President’s claims: “With all due respect to the Attorney General, there hasn’t been any semblance of a Department of Justice investigation.” Online, Barr was vilified. Joe Hoft, at the Gateway Pundit, wrote that Barr had destroyed “his name for all eternity” and claimed that he has spent his time in office working surreptitiously to keep Hillary Clinton, James Comey, and Robert Mueller out of jail. “Now we know why the DOJ didn’t arrest anyone for the past four years,” Hoft wrote. “The reason is they wanted it this way. . . . They never were going to arrest anyone.” On pro-Trump Reddit channels, Barr was declared a “deep state” agent. The President was reportedly livid at Barr. Asked at a White House event on Thursday if he still has confidence in Barr, Trump replied, “ask me that in a number of weeks from now.”

What actually motivated Barr is unknown at this point, and nothing is likely to become clearer until after Trump leaves office, on January 20th. This week, an associate of the Attorney General’s told me that Barr and Trump have barely spoken for weeks. The associate said that Barr had intentionally distanced himself from Trump as the election approached, because he wanted to perform the traditional role of Attorneys General—declining to take legal actions during an election season that favor one candidate, particularly the President who appointed them.

That explanation is charitable. During Barr’s interview with the A.P., he hedged, as he has in the past. He disclosed that, in October, he had secretly appointed John Durham, a federal prosecutor investigating the F.B.I.’s 2016 Trump-Russia probe, as special counsel. That move will please the President and make it more difficult for Biden’s new Attorney General to curtail Durham’s work. Then, after Barr’s comments about the election were attacked, his office released a statement saying, “The Department will continue to receive and vigorously pursue all specific and credible allegations of fraud as expeditiously as possible.”

The week’s events exemplified the tragic, destructive, and cynical nature of the Trump-era Justice Department. Barr has clear legal and political convictions—many of which infuriate liberals—but he has pursued them consistently throughout his career. Like other Republicans, he seemingly embraced an alliance of convenience with Trump. An adherent to the obscure legal view that the Presidency has too little power, Barr contends that special-counsel and congressional investigations have become so excessive that they hamper a President’s ability to govern the country.

Barr viewed the F.B.I.’s 2016 Trump-Russia investigation, the subsequent appointment of Robert Mueller as special counsel, and the convictions of Paul Manafort, Michael Flynn, and Roger Stone as illegitimate. He did his best to reverse each of those measures, by undermining Mueller’s report and lessening the punishment of the Trump allies who were successfully prosecuted by Mueller. During Trump’s impeachment, Barr accused Democrats of “waging a scorched-earth, no-holds-barred war of ‘Resistance’ against this Administration,” adding, “it is the left that is engaged in the systematic shredding of norms and the undermining of the rule of law.” Critics accused Barr of doing the same, in helping Trump to demolish decades of effort to build public confidence that the law is applied equally to all Americans, regardless of their proximity to the President. They contend that Barr’s politicizing of the Justice Department will lead him to be considered one of the most destructive Attorneys General in modern American history.

Until now, Barr has delivered virtually everything that Trump could possibly have wanted politically—from the Justice Department arguing that Manhattan prosecutors should not have access to Trump’s tax returns, to defying subpoenas from congressional oversight committees. Those acts and others that Barr has taken set legal precedents that have made Trump one of the most powerful American chief executives, in legal terms, since Congress and the courts curbed Presidential power after Watergate. In the final weeks of the campaign, though, Trump went too far, apparently, even for Barr. In the pursuit of victory and vengeance, Trump publicly called for him to open a criminal investigation of the Biden family, and demanded that Barr announce the results of the Durham investigation in time to sway votes. After the election, Trump’s campaign pressured Barr to become the first U.S. Attorney General to aid a de-facto coup attempt—albeit a chaotic and, at times, comical one.

Barr’s public defense of Biden’s victory—at a politically existential moment for Trump—was an irreversible step for the Attorney General. If Trump or his allies maintain control of the Republican Party, Barr will now have no future in it. George Terwilliger, who worked for Barr in the Administration of George H. W. Bush, told the Times that Barr’s intention this week was “just to be responsible.” Terwilliger added that, when false conspiracies are being spread about the Justice Department, “it is responsible to say no, that did not happen.” Barr’s statement showed an Attorney General doing what is required of him in a democracy. It also showed how utterly this President has failed to do the same.

Doonesbury — A meeting of the minds.

Sunday, November 1, 2020

Sunday Reading

Latinos Con Biden — Stephania Taladrid in The New Yorker on how grassroots organizing is turning out the Latinx vote in Miami.

On a scorching afternoon in early October, Miguel Sahid walked over to a freshly painted mural in Wynwood, Miami’s art district. When Sahid reached the wall, tears began flowing from his closed eyes. Looming above him was an image of a Taíno woman wrapped in a Puerto Rican flag, her lips sealed with the word “Reclama,” or “Demand.” Her right arm was raised as high as Lady Liberty’s, but instead of a torch, she held a banner reading “Tu Voto es Mi Voto”—“Your Vote Is My Vote.” Sahid and others had commissioned the mural as a memorial to the victims of Hurricane Maria—but also as a rallying cry for the nearly nine hundred thousand eligible Puerto Rican voters in Florida, urging them to make their voices heard this November.

Sahid became involved in politics only recently—he was groomed in the world of theatre, and now runs an actors society for Latino youth. At forty-six, he comes across as a sturdy man, with carefully combed hair, warm eyes, and a jaunty smile. Like other Puerto Ricans, he has taken Donald Trump’s demeaning of the island personally, and sees Maria as a thorn in the President’s side. To this date, he vividly remembers the call he placed to his parents back on the island when the hurricane made landfall, in September of 2017. “Many of the phone lines were down, because everyone was calling,” he said. When he finally got his father on the phone, he learned that their apartment was flooded ankle-deep in seawater. Shortly after, Puerto Rico slipped into a blackout, and eight days passed before Sahid was able to reach his parents again. Trump’s callousness and ineptitude stunned him. “Everything changed when I saw he wasn’t paying the slightest attention to Puerto Rico, and that all he bothered to do was throw paper towels at us,” he said. “It felt as if he were offering a Band-Aid at a time when we desperately needed surgery.”

In the aftermath of the hurricane, Trump declared that he had done an “A-plus” job in Puerto Rico. During his only visit to the island, which lasted less than four hours, the President blamed local authorities for any problems and downplayed the damage. In reality, the official government death toll was 2,975, a higher number of victims than during Katrina, the hurricane that devastated New Orleans, in 2005. In parts of Puerto Rico, American citizens were left without electricity or clean water for months. The island has yet to fully recover from the disaster, which wrought an estimated hundred billion dollars in damage on a population whose local government was already heavily burdened by debt. Last month, in a transparent, last-minute effort to earn votes, Trump pledged a package of thirteen billion dollars in federal disaster funding to Puerto Rico. But many, including Sahid, saw this as a cynical political ploy by a President who reportedly wanted to hand over the U.S. territory to the highest foreign bidder. “First he wanted to sell us, then he wanted to swap us for Greenland, and now he wants to buy us?” he said ruefully. Feeling increasingly frustrated, Sahid looked for ways to become more engaged in politics and came across the grassroots groups Boricuas con Biden and Cubanos con Biden. “There, I found thousands of people airing similar grievances,” he said. “It made me realize that I’m not alone.”

According to the Pew Research Center, Latinos make up seventeen per cent of the electorate in Florida—the largest share of any battleground state. A staple of Florida politics is that Cuban-Americans reliably vote Republican; this year, they are expected to overwhelmingly support Trump. There are, in fact, more Puerto Rican eligible voters in the state than Cuban-Americans, and, together with myriad other groups, including Mexicans, Dominicans, Nicaraguans, and Ecuadorians, they constitute nearly three-quarters of the community’s voters. The result of the battle for their support could decide whether Trump or Biden wins the state. “Unlike 2016, this has been a much more contested environment,” Carlos Odio, the co-founder of the research group EquisLabs, told me. “If you’re Biden, what you’re trying to do is maximize votes. Trump has an easier job—he just needs to bat a few balls away.” To win Florida, Odio estimates that Joe Biden likely must secure around seventy per cent of the non-Cuban Latino vote—a level of support reached both by Barack Obama, in 2012, and Hillary Clinton, in 2016. The last time that Equis polled for Biden, his support hovered around sixty per cent. But he’s since made modest gains in Miami-Dade, Florida’s most populous county, aided by a heavy investment in advertising thanks to Michael Bloomberg’s half-million-dollar donation there and a wave of volunteers working to turn out the vote.

Addressing a small crowd of organizers in Miami Springs last weekend, Obama, who was in Florida to promote his Vice-President, emphasized just how momentous their work could prove, saying, “If you bring Florida home, this thing’s over.” Initially, the number of registered Democrats who had cast their ballots early in Florida outpaced Republicans by two-to-one. But in the last week, registered Republicans have steadily closed that gap, and now trail Democrats by less than a hundred thousand votes. In Miami-Dade, a Democratic stronghold, Republicans have an advantage in turnout of more than eight per cent. The numbers also reveal that half of Latino registered voters have yet to cast their ballots in the state. Privately, Latino political activists, and even Biden campaign staffers in the state, say that the Florida Democratic Party, which runs Biden’s coördinated campaign, has not invested enough money in direct voter contact among Puerto Ricans, Mexicans, Colombians, Venezuelans, and other potential supporters. “I’ve emptied my pockets,” one of the staffers said, of having to make up for the lack of budget with personal money. The staffer has overheard others say they’re “being sent to the front lines just like soldiers without bullets.” But the campaign contends it has spent six figures over the last week in get-out-the-vote efforts and events at early polling locations. “We are leaving no stone unturned,” Christian Ulvert, a senior adviser in Florida, said.

Although research has long shown that there is a racial and ethnic disparity in the use of vote-by-mail, some are frustrated by what they see as the state campaign’s failure to invest more heavily in Latino turnout, despite the Biden campaign having raised a record $1.5 billion nationally, and working with a hundred-million-dollar donation from Bloomberg. But they also recognize an all-too-familiar pattern, which, in their view, explains why Democrats have not won a statewide election in Florida since 2012: the Democratic Party is not making a large enough effort in a state where demographics trends favor them. “Florida doesn’t have to go to the margins,” the staffer said. Now some of them are dreading a Trump victory or a repeat of the 2000 Presidential election, when the contest was settled in George W. Bush’s favor by five hundred and thirty-seven votes. If Republicans continue to turn out their voters in droves, Biden staffers fear that they may not be able to keep up with their lead. “If we don’t get the Hispanic vote out today and tomorrow, it’s game over,” the staffer told me on Saturday. “At this rate, they’re going to catch up to us by Monday.” Another staffer argued that it was impossible to make up in a matter of days for work that should have been done over the last year. “At this point, I’m praying for a miracle,” the staffer said.

What may offset the campaign’s neglect is that many Latino voters believe their livelihoods and integrity are on the ballot this year. For the nearly fifty thousand Puerto Ricans who moved to Florida after Hurricane Maria, November 3rd may well determine the future for their relatives back home. For the nearly two hundred thousand Venezuelans, Hondurans, and Salvadorans living in Florida, it may be a question of undoing Trump’s attacks on the Temporary Protected Status program, which allows immigrants from countries beset by violence, repressive regimes, or natural disasters to remain in the United States. And for the more than three hundred thousand voters of Mexican descent, it may be a matter of standing up for their dignity. Across nationalities, Latino voters are fed up with being treated as second-class citizens. What’s more, some say that they see in Trump the authoritarian instincts displayed by leaders of the nations they fled. “The reason why I’m horrified by Trump is because I see Daniel Ortega in him,” Carolina Chamorro, a Nicaraguan sociologist who moved to Florida in the nineteen-eighties, said, referring to the Sandinista leader. “All he’s doing is manipulating the masses.”

Much of Trump’s bigoted rhetoric has been aimed at Latinos—and, in cases like the mass shooting of twenty-two people last year in El Paso, in which the gunman set out to kill as many Mexicans as possible, it’s proved fatal. For Maria José Wright and Fred Wright, the notion that Trump is viewed as a pro-life leader is painfully ironic. Their son, Jerry, was one of the forty-nine victims of the Pulse night-club shooting, in Orlando, in 2016. Until that year, the Wrights had invariably voted Republican. “A lot of people don’t know this, but the shooter at Pulse, who took my son’s life, got radicalized because Trump started talking about banning [immigrants from] Muslim states,” Fred, an Ecuadorian-American businessman, said. “To us, he is pro-death.” Maria José expressed regret that many conservative Latinos who support the President limit their pro-life defense to the unborn, when more than a hundred Americans are killed by guns every day, and more than two hundred and thirty thousand have died as a result of COVID-19. “It’s shameful,” she told me. Maria José said she was troubled by the G.O.P.’s personality cult, and by Trump’s debasement of the press, scientists, and his opponents. “It scares the living crap out of me,” she said.

In a closely contested election riven by fear and hostility, the work done at the grassroots level could prove decisive in increasing turnout. Weeks before the start of early voting, Sahid joined dozens of volunteers, including Daniela Ferrera, the co-founder of the grassroots group Cubanos con Biden, and began rallying voters by organizing caravanas, rallies on wheels. When early voting began, they started visiting polling places to counter the presence of Trump supporters, whose vehemence they fear will deter Biden voters from turning out. A week ago, in the city of Hialeah, a Republican stronghold north of Miami, Maria Caridad Fernandez, a Cuban-American voter, wept after seeing fellow Biden supporters outside her polling site. Fernandez told me that she had been doubting whether to vote or not—her neighbor’s pro-Biden yard signs had been stolen, and she found the current political climate deeply dispiriting. But the sight of Biden supporters evoked a feeling of belonging—one that was comparable to what Sahid had felt. “I want this country to be proud of us and to never feel ashamed of having welcomed us in,” Fernandez said.

Sahid recently led a Sunday-morning caravan of Biden enthusiasts through downtown Miami. Previous caravans had numbered in the hundreds, but, this time, two thousand cars had registered on the eve of the event. Dressed in jeans and a tight “Latinos con Biden” shirt, Sahid welcomed people with a broad smile as they drove in: “¡Hola, hola, hola! How are you guys doing?!” Within less than an hour, there were more cars than the street could fit. People brought their elderly parents, their children, and pets and carried cardboard signs, some homemade, that said “Abuelas Cubanas con Biden,” “100% Anti-Comunista, 100% con Biden,” and “Republican voters against Trump.” Other signs referenced Trump’s treatment of Puerto Rico and his talk of trading away the U.S. territory, such as, “Prohibido Olvidar” and “Puerto Rico no se vende.” Next to their Biden flags, people brandished Puerto Rican, Mexican, Venezuelan, and Uruguayan flags. Leading the way was a pickup truck, playing at full volume a classic Puerto Rican song, whose lyrics went “¡Pa’ fuera! ¡Pa’ la calle! ” or “Get out, to the street.”

On the caravan’s way to Tropical Park, when Trump supporters drove by, their shouts of “Communists!” were drowned out by the cheering and honking of Biden supporters. “This is how you know the street is on your side,” Sahid said proudly. “Two months ago, you saw none of this.” His husband, Andres Mejia, sat to his right and joked that Sahid has had to replace his car horn three times. “It went mute during the first caravan,” Mejia said, as Sahid kept honking. By the time that Sahid reached the main boulevard in front of the park, more than a thousand people were lined up on the street’s edges, waving signs and dancing. An elderly Dominican man expressed astonishment at the size of the pro-Biden crowd in a park where Trump supporters convene regularly. “Trumpists had been here for a year,” he said in disbelief. “One never gets to see anything like this in Miami.” The turnout had exceeded Sahid’s expectations, but he was cautiously enthusiastic.

The following week, he and a group of volunteers put together another caravan, which drew several hundred cars from different parts of the city. The plan was to meet at the Freedom Tower, on Biscayne Boulevard—an iconic building where Cubans long petitioned for asylum, and which is known as the “Ellis Island of the South.” As Sahid and others got closer to the monument, a growing number of Trump supporters showed up in their cars. When the Biden supporters finally reached their meeting point, the boulevard was blanketed with Trump 2020 flags. Leading the caravan in support of the President were the Proud Boys, a far-right extremist group. They had hired a parade float, which featured a large-sized cutout of a bridge and which read “TRUMP UNITY.” It included a singer, too—a boisterous man who performed the Village People’s “Y.M.C.A.” with the letters “M.A.G.A.” Members of the rival caravans engaged in a screaming match. Some people shouted “¡Comunistas! ”; others “¡Asesino! ” A girl on an electric scooter carried a megaphone and repeatedly yelled, “Biden is a pedophile!” Another kneeled on the backseat of a car and twerked in the direction of a crowd of Biden supporters. There were different ways one could read the effort to sabotage the caravan—as a desperate attempt to regain the streets or a troubling show of force designed to intimidate Democrats. Sahid didn’t rule out either scenario. “It’s going to be darn hard to win this thing,” he said.

Democracy vs the Corrupt Federal Judiciary: Which Side Are You On? — Josh Marshall in TPM.

We now have another case in Texas where the state Republican party is going to court to attempt to throw out roughly 100,000 ballots cast via curbside voting in Harris County, Texas. They lost their bid in state courts. So now they’re rushing to federal court where a thoroughly corrupted federal judiciary is likely open to this wholesale disenfranchisement. Federal judges are buying into the theory proposed by four justices on the pre-Barrett Court that only state legislatures can make any changes to voting procedures. Mark Joseph Stern of Slate says state Republicans have drawn one of the most partisan federal judges in Texas to hear the case.

Here we have yet another opportunity for a corrupted federal judiciary to rig the election in favor of the Republican party. It’s akin to the kind of things we see in broken democracies like Russian and Turkey, where notional democratic procedures are backstopped by courts which intervene if the elections are going in the wrong direction.

People need to open their eyes to the reality of what has happened. The federal judiciary has been thoroughly corrupted. The issue is not principally one of ideology. It is that a large number of Republican judges see their role as backstopping the electoral fortunes and policy choices of the Republican party. For this they are willing to use states-rights federalism or federal intervention depending on situational convenience. They manufacture new interpretive theories wholesale to achieve these ends. This can sound hyperbolic. But it’s not.

For democracy to survive the federal judiciary must be reformed. We’re focused on Trump right now. But even if he’s defeated next week the federal judiciary will remain in place in its corrupted state and likely expand its efforts to interfere in elections and exercise vetoes over Democratic policy-making. For democracy to survive the federal judiciary must be reformed. That starts with expanding the Supreme Court with at least four new Justices. But it should apply to the rest of the federal judiciary as well.

Doonesbury — Closing argument by the numbers.

Sunday, October 4, 2020

Sunday Reading

Coronavirus and the Threat Within the White House — David Remnick in The New Yorker.

From the start of his Presidency, Donald Trump has threatened the health and the security of the United States. It has now been made clear that Trump’s incompetence, cynicism, and recklessness have threatened his own welfare. Even the best security system and the most solicitous medical officers in the world could not protect him from a danger that he insisted on belittling and ignoring. On Friday, at 12:54 a.m., Trump announced by Twitter that he and the First Lady had tested positive for the novel coronavirus. By the end of the evening, “out of an abundance of caution,” the President had gone to Walter Reed hospital to spend “the next few days.” The Trumps join the more than seven million other Americans who have contracted the virus. More than two hundred thousand have died from Covid-19, the disease it causes. Most of them were older than sixty-five. Trump is seventy-four.

The contrast between Trump’s airy dismissals of the pandemic’s severity and the profound pain and anxiety endured by so many Americans has helped define the era in which we live. Hours before he announced the diagnosis, Trump claimed, in a speech recorded for the annual Al Smith Dinner for Catholic charities, that “the end of the pandemic is in sight, and next year will be one of the greatest years in the history of our country.”

Any ailing individual ought to be able to depend on the best wishes of others—and on affordable, decent health care. Trump can depend on both, even if millions of Americans cannot. We can only hope that he and his wife get through the virus in a couple of weeks with minimal suffering, and, with prime medical attention and a modicum of luck, there’s reason to think that they will. But, as President and as a candidate for reëlection, Trump should not count on the silencing of American citizens—on a deference that he has never shown to the people whom he swore to protect and has not. Because of his ineptitude and his deceit, because he has encouraged a culture of heedlessness about the wearing of masks and a lethal disrespect for scientific fact, he bears a grave responsibility for what has happened in this country. It will never be known precisely how many preventable deaths can be ascribed to his irresponsibility, but modest estimates run into the tens of thousands. Yet Trump’s insistence that Americans pay the virus little mind never ends. Just before the death toll reached two hundred thousand, last month, he declared at a rally in Ohio that the virus “affects virtually nobody. It’s an amazing thing.”

In terms of scale, the West Wing is less like the Kremlin or the Élysée Palace than like the cramped executive offices of a medium-sized insurance company. The hallways are tight. The chairs in the Cabinet Room sit close to one another. The Oval Office itself, where Presidents routinely hold working sessions with many aides, is smaller than you might expect. And yet numerous reports in the press have described how, owing to the President’s attitude, employees, reporters, and visitors to the West Wing are disdained or mocked if they wear a mask.

The Centers for Disease Control and other public-health institutions have long said that wearing masks is essential to minimizing the spread of the coronavirus. Trump has been of another opinion, a delusional one. In April, as he would so many times, he waved the counsel away, saying, “I don’t think I’m going to be doing it.” He went on, “I don’t know, somehow sitting in the Oval Office behind that beautiful Resolute desk, the great Resolute desk. I think wearing a face mask as I greet Presidents, Prime Ministers, dictators, kings, queens—I don’t know, somehow I don’t see it for myself.”

That this perilous variety of magical thinking has encouraged all manner of self-destructive behavior across the country—in crowded bars and on beaches, at motorcycle rallies, at Trump rallies––heightens not only the chances of lethal outbreaks in countless cities and towns but also the divisions among our citizens. Trump regularly mocks his opponent, Joe Biden, for taking care to wear a mask at public events. “Every time you see him, he’s got a mask,” he said during Tuesday night’s Presidential debate in Cleveland. “He could be speaking two hundred feet away, and he shows up with the biggest mask I’ve ever seen.” (On Friday morning, the Democratic standard-bearer tweeted, “Jill and I send our thoughts to President Trump and First Lady Melania Trump for a swift recovery. We will continue to pray for the health and safety of the president and his family.”)

It is difficult to overstate the psychological overload that the drama of the Trump Presidency presents to anyone who has been following the narrative. Take a week in the life: One day we learn that Trump, who is alleged to be the wealthiest President in U.S. history, paid just seven hundred and fifty dollars in federal income tax during his first year in office. Then comes a debate performance in which he tries to baselessly undermine mail-in voting and asks the Proud Boys, a far-right extremist group, to “stand back and stand by”—presumably, to be mobilized should he lose. He made it plain, as he has in his public speeches, that he is not so much running for reëlection as running against the election itself, hoping to invalidate its results preëmptively with threats and conspiracy theories. Then, at an ugly, mask-free rally in Minnesota on Wednesday, Trump riled the crowd, declaring that a Biden Presidency would “inundate your state with a historic flood of refugees.” Misinformation and violence, too, are contagions, and Trump, who sees only political advantage in fomenting schism and mistrust, has long been a superspreader.

There is no way of knowing how the President’s illness will shape the coming weeks. The polls suggest a motivation for the desperation of his rhetoric and his tactics: the last time there was a polling deficit like the one we’re now seeing at this point in a national election was in 1996, when Bob Dole trailed Bill Clinton all the way to Election Day. The President is obsessed with menaces—posed by shadowy members of a “deep state,” by “the radical left,” by foreigners of all sorts. But the gravest menace to public health and public order has come from within the White House. So long as Trump holds office, no manner of quarantine will suffice to contain it.

Time for the 25th Amendment? — David Frum in The Atlantic.

On March 30, 1981, President Ronald Reagan was shot as he entered his limousine after a speech at a Washington hotel. Reagan’s condition soon stabilized. He was released from the hospital April 11 and spoke to a joint session of Congress on April 28.

But in the first few hours, it was not clear whether the president would live or die. Paperwork was prepared to appoint Vice President George H. W. Bush as acting president. You can see it here, courtesy of the Reagan Library. The paperwork was never executed. Instead, the day after the shooting, three top aides visited Reagan in the hospital. They brought with them a piece of legislation that had to be signed that day. Reagan signed it. American citizens and foreign allies were assured: The presidency still functioned. Adversaries who might have been tempted to take advantage of a break in United States governance also got the message: Be warned.

(The legislation, in case you were wondering, blocked a scheduled increase in dairy price supports from going into effect the next day.)

The faction-riven Reagan White House was not always a happy place. But under the deft management of Chief of Staff James Baker (now the subject of a superb new biography by Peter Baker and Susan Glasser), the Reagan White House was a supremely functional place. It got the job done.

The Trump White House is not happy and does not get the job done. It is the most dysfunctional in history. Donald Trump is the most corrupt president in history. Yet that White House and that president head the government of this unfortunate country. Now that Trump has been diagnosed with COVID-19 and is being treated at Walter Reed National Military Medical Center, it’s important that Americans and the world know whether anybody is in charge—and if so, who?

Granted, Americans were asking that question even before Trump was airlifted to the hospital. The administration has given no straight answer even to such basics as “Are Trump’s tweets official statements of the president?” The U.S. government in court has sometimes argued yes. At other times, it has argued no. Trump notoriously spends his days watching television, and also notoriously trusts even the wackiest television talkers more than the scientists, military, and intelligence services of the United States.

Before Trump’s diagnosis, however, Americans at least knew that he was the head of government and the head of state. If a presidential signature was required, his was that signature. If an order had to be given to the armed forces, that order ultimately traced to his legal authority.

Now there’s reason to wonder: Is he still able to discharge the office from Walter Reed? If he’s not, U.S. law provides remedies. Either way, Americans and the world need to know.

That need raises special problems in the Trump era, because of this White House’s supreme dishonesty. Their words mean little. In the stress of 1981, the Reagan White House walked an extra mile to communicate assurance. I mentioned how faction-riven that White House was. When Reagan signed the dairy bill on the day after the assassination attempt, the three aides by his side were the leaders of the three big factions: not only Baker, but also his rivals, Michael Deaver and Edwin Meese. Nobody was left to linger behind to cast doubt on Reagan’s competence.

COVID-19 can be incapacitating, especially for older people and especially for people who are overweight, as Trump is. When British Prime Minister Boris Johnson entered the hospital for COVID-19 in April of this year, he formally deputized Foreign Secretary Dominic Raab to oversee government for him. Such a transfer is a more serious matter in the U.S. system, formalized by law. Any administration might hesitate to acknowledge the incapacity of the president. But if the Trump administration is not going to invoke the Twenty-Fifth Amendment and its temporary transfer of authority from president to vice president, then it needs to do something else. It needs to communicate to Americans and the world that Trump remains able to do his job, if only to the same minimal extent he has done the job until now. And it needs to do that communicating fast—and as close to truthfully as this crooked administration can manage.

Doonesbury — Counting Crow

Wednesday, September 9, 2020

His Own Private Justice Department

Via the New York Times:

The Justice Department moved on Tuesday to replace President Trump’s private legal team with government lawyers to defend him against a defamation lawsuit by the author E. Jean Carroll, who has accused him of raping her in a Manhattan department store in the 1990s.

In a highly unusual legal move, lawyers for the Justice Department said in court papers that Mr. Trump was acting in his official capacity as president when he denied ever knowing Ms. Carroll and thus could be defended by government lawyers — in effect underwritten by taxpayer money.

Though the law gives employees of the federal government immunity from most defamation lawsuits, legal experts said it has rarely, if ever, been used before to protect a president, especially for actions taken before he entered office.

“The question is,” said Steve Vladeck, a University of Texas law professor, “is it really within the scope of the law for government lawyers to defend someone accused of lying about a rape when he wasn’t even president yet?”

Not only am I not surprised that Trump would pull this bullshit, I thoroughly expected Attorney General Barr to go along with it. Trump sees the entire U.S. government as his company, and he’s the CEO, and Barr is his fixer.

This will go to a federal court where any judge who isn’t in the pocket of Trump will toss it. It will get appealed, aiming for the Supreme Court, and assuring that it will not be decided before November. That’s the whole idea.

It also tells me and the world that Trump is completely freaked out at the possibility of having to testify in court. He’ll commit perjury as he’s being sworn in to solemnly swear to tell the truth, the whole truth, and nothing but the truth.

Wednesday, July 22, 2020

Proactively Arresting

Via TPM:

Acting Secretary of the Department of Homeland Security Chad Wolf spun his unidentified federal agents’ random detainment of nonviolent anti-police brutality protesters in Portland, Oregon as some kind of pre-crime measure on Tuesday night.

“Because we don’t have that local support, that local law enforcement support, we are having to go out and proactively arrest individuals,” Wolf said during an interview on Fox News. “And we need to do that because we need to hold them accountable.”

I’m not a lawyer, but I’m pretty sure that the Fourth Amendment doesn’t allow for arresting someone before they commit a crime.

The government may not detain an individual even momentarily without reasonable and articulable suspicion, with a few exceptions. In Delaware v. Prouse (1979), the Court ruled an officer has made an illegal seizure when he stops an automobile and detains the driver in order to check his driver’s license and the registration of the automobile, unless the officer has articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or either the vehicle or an occupant is otherwise subject to seizure for violation of law.

Unless, of course, you’re bucking for fascism.

Friday, July 10, 2020

Happy Friday

According to Charles P. Pierce, yesterday was a pretty good day.

“And, on fourth-and-15, here comes veteran John Roberts, back to kick. Takes the snap, and it’s a long one. Waaayyy down the field. It takes a huge Camp Runamuck bounce and it goes out of bounds, pinning the Republic back on its own three-yard line. Roberts really outkicked his coverage…”

I’m sorry about that. God, I’ve got to get another sportswriting gig.

The Supreme Court on Thursday did what most people expected it to do on the matter of El Caudillo del Mar-a-Lago’s financial records. It denied Congress’s attempt to subpoena the material, but it did rule that New York County DA Cyrus Vance, Jr. one day could go gamboling through the vast vista of scams and grifts and frauds likely contained therein. Indeed, in ruling in Vance’s favor, Chief Justice Roberts wrote in the Court’s unanimous opinion on that point:

No citizen, not even the president, is categorically above the common duty to produce evidence when called upon in a criminal proceeding.

This is a major statement on presidential power and, in that regard, it can rank with US v. Nixon and Jones v. Clinton. And hooray for that. (As far as the congressional subpoenas go, there is at least an arguable separation-of-powers claim to be made. Clearly, Roberts swung the entire Court onto the institutionalist side of his conscience. I wouldn’t make it, but it’s at least worth piling up the billable hours on.)

But the two rulings also ensure that he country will not get to see this information any time before the November election. The case of the congressional subpoenas will go back into the maelstrom of the lower courts. Vance was clearly luckier than Congress was but, after Vance’s own fandango in the lower courts, all of the documents under subpoena will go to a grand jury, the proceedings of which will be secret and, therefore, the information in the documents will remain inaccessible, at least for the foreseeable future. Nonetheless, the president* responded on the electric Twitter machine by going utterly bananas.

PRESIDENTIAL HARASSMENT!

“We know what took place. We have already seen criminality. What is happening? Biggest political scandal of our time.” @MariaBartiromo You are 100% correct, Maria, it is a disgrace that nothing happens. Obama and Biden spied on my campaign, AND GOT CAUGHT…BUT NOTHING!

PROSECUTORIAL MISCONDUCT!

We have a totally corrupt previous Administration, including a President and Vice President who spied on my campaign, AND GOT CAIGHT…and nothing happens to them. This crime was taking place even before my election, everyone knows it, and yet all are frozen stiff with fear….

No Republican Senate Judiciary response, NO “JUSTICE”, NO FBI, NO NOTHING. Major horror show REPORTS on Comey & McCabe, guilty as hell, nothing happens. Catch Obama & Biden cold, nothing. A 3 year, $45,000,000 Mueller HOAX, failed – investigated everything…

.for another President. This is about PROSECUTORIAL MISCONDUCT. We catch the other side SPYING on my campaign, the biggest political crime and scandal in U.S. history, and NOTHING HAPPENS. But despite this, I have done more than any President in history in first 3 1/2 years!

This certainly sounds like the reasoned rebuttal of an innocent man.

(For the historical record, here’s how the Nixon White House, through attorney James St. Clair, responded to the 8-0 decision demanding that he hand over the subpoenaed White House tapes: “[The president] has always been a firm believer in the rule of law.”)

All in all, it was a pretty good day for the Republic, although it’s still got a long way to go before it hits pay dirt. And hope does spring eternal. After all, in the other decision by the Court on Thursday, almost half of the state of Oklahoma was determined to belong to Native Americans. Wrote Justice Neil Gorsuch (!):

On the far end of the Trail of Tears was a promise. Forced to leave their ancestral lands in Georgia and Alabama, the Creek Nation received assurances that their new lands in the West would be secure forever. In exchange for ceding “all their land, East of the Mississippi river,” the U. S. government agreed by treaty that “[t]he Creek country west of the Mississippi shall be solemnly guarantied to the Creek Indians.” The government further promised that “[no] State or Territory [shall] ever have a right to pass laws for the government of such Indians, but they shall be allowed to govern themselves.” Today we are asked whether the land these treaties promised remains an Indian reservation for purposes of federal criminal law. Because Congress has not said otherwise, we hold the government to its word.

The “government” to which Gorsuch is referring was sitting in 1832. Andrew Jackson was president. John C. Calhoun was vice president. Henry Clay and Daniel Webster were in the Senate. John Quincy Adams and James K. Polk were in the House. John Fcking Marshall was still Chief Justice of the Supreme Court. Of course, shortly thereafter, the Jackson Administration began the genocidal campaign that ended with the Trail of Tears that brought the tribes. including the Creek people, from their ancestral lands in the southeastern United States to Oklahoma where, on Thursday, the Supreme Court ordered the United States to live up to the deal it cut with those folks lucky enough to have survived.

Mills of the gods. Arc of the moral universe, and all that. If the Creek people can wait this long to settle a land case, we can be patient about a bunch of paperwork from Deutsche Bank.

In other news, I am happy to announce that “All Together Again,” the long-awaited sequel to my award-winning play “All Together Now,” has now been published by Smith Scripts. Check it out, or better yet, order a copy.

Happy Friday!

Thursday, July 9, 2020

POTUS Tantrum

Via TPM:

Trump blew up on Twitter after the Supreme Court ruled that his tax returns must be handed over to Manhattan District Attorney Cyrus Vance on Thursday morning.

Trump complained that he will “have to keep fighting in a politically corrupt New York” thanks to the ruling.

“Not fair to this Presidency or Administration!” the President tweeted.

“Courts in the past have given ‘broad deference.’ BUT NOT ME!” he wrote in a second tweet approximately a minute later.

The tantrum continued in the form of a barely coherent Twitter thread in which Trump raved on about his bogus conspiracy theory that President Barack Obama’s administration was supposedly “spying” on his 2016 campaign.

“We have a totally corrupt previous Administration, including a President and Vice President who spied on my campaign, AND GOT CAUGHT…and nothing happens to them,” Trump tweeted. “This crime was taking place even before my election, everyone knows it, and yet all are frozen stiff with fear….No Republican Senate Judiciary response, NO ‘JUSTICE,’ NO FBI, NO NOTHING.”

The President also ranted that the Supreme Court had made a ruling that they “would never have given for another President.”

Trump’s own appointed justices, Neil Gorsuch and Brett Kavanaugh, were part of the seven-person majority in the decision.

The President was still furiously sounding off on Twitter by noontime, tweeting “POLITICAL WITCH HUNT!”

The UNFAIR! rant doesn’t work unless you’re five and told to clean up your room THIS MINUTE.  And even then.

For the adults in the room, the opinion written by Chief Justice John Roberts cited precedent as far back as Aaron Burr’s trial for treason in 1807 for successfully subpoenaing a president for his records. (And you don’t have to watch “Hamilton” to know that.) Two other presidents tried unsuccessfully to quash subpoenas — Nixon and Clinton — and they both lost.

It’s unlikely that the records will become public before he leaves office in January, but then he’ll be just an ordinary citizen again and the SDNY can indict him.

Wednesday, April 15, 2020

Virtual Civics Lesson

Trump’s assertion that he has “total authority” to do whatever he wants as president got laughed out of the room by anyone who paid attention in their social studies class in Grade 7.  The Washington Post’s Fact Checker rated the claim as Four Pinocchios, the highest rating for lying that they have on their scale.

After declaring independence from Britain and shaking off the yoke of King George III, the Founders of the United States adopted a system of government in which power would be split between the states and a centralized federal government.

The federal government has enumerated powers that it cannot expand, but the state legislatures are free to adopt powers not explicitly forbidden by their constitutions or the U.S. Constitution, according to Robert F. Williams, an expert on state constitutional law at Rutgers University Law School in Camden, N.J.

The 10th Amendment 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.”

James Madison wrote in the Federalist 45: “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.”

[…]

“The President has no formal legal authority to categorically override local or state shelter-in-place orders or to reopen schools and small businesses,” Stephen I. Vladeck, a University of Texas School of Law professor, wrote on Twitter. “No statute delegates to him such power; no constitutional provision invests him with such authority.”

The Supreme Court has reinforced the separate roles of the states and the federal government multiple times. The court ruled in 1992 that the federal government cannot force states to run federal programs, what’s known as the “anti-commandeering doctrine.” In 1997, a court majority ruled that parts of the Brady Handgun Violence Prevention Act violated the 10th Amendment because it was a federal law requiring state and local law enforcement officials to conduct background checks on people attempting to purchase handguns.

Trump said at the briefing that “numerous provisions” in the Constitution gave him power over the states. The White House did not respond when we asked for an explanation.

The two-word answer is “states’ rights,” which has been invoked for good and for evil (maintaining segregation, for example), but it’s a basic tenet of our government.  The federal government actually does not have a lot of power over the states, so Trump’s claim is nothing new: it’s unadulterated bullshit and even people who knee-jerk support him know it.

I support the idea that any candidate for president be required to pass a high school civics final exam.  That would have saved us a whole lot of this.

Wednesday, February 19, 2020

A Law Unto Himself

Oh, come on; you knew this would happen.

Trump on Tuesday used his sweeping presidential pardon powers to forgive the crimes of a list of boldface names, including disgraced politician Rod R. Blagojevich, convicted junk bond king Michael Milken and former New York police commissioner Bernard Kerik.

Trump pardoned or commuted the sentences of seven convicted white-collar criminals at the center of federal anti-corruption and tax fraud cases spanning decades, alongside four women whose cases were not as well known.

The action frees Blagojevich, the former Democratic governor of Illinois, from the federal correctional facility in Colorado where he was serving out his 14-year sentence. He was convicted on corruption charges in 2011 for trying in 2008 to sell President-elect Barack Obama’s vacated Senate seat.

“He’ll be able to go back home with his family after serving eight years in jail,” Trump told reporters. “That was a tremendously powerful, ridiculous sentence in my opinion and in the opinion of many others.”

[…]

The executive actions announced Tuesday fit a pattern of highly personal presidential justice that largely bypasses the traditional pardon process administered by the Justice Department. Most of the people who have received clemency under Trump have been well-connected offenders who had a line into the White House or currency with his political base.

The justice system isn’t supposed to work based on “my opinion and in the opinion of many others.”  It’s supposed to work based on the laws and the rules passed by Congress and the legislatures.  And it’s not supposed to work based on who paid the most money to your friends and contributors or as a neener-neener to your predecessor.

Charles P. Pierce:

The banana republic is a republic gone bananas.

Trump has also declared himself to be the “chief law enforcement officer of the country.”

Trump’s constant commentary and increasing willingness to flout traditional legal processes signal that the president feels emboldened and unrestrained after Republicans voted almost unanimously to acquit him on impeachment charges of abuse of power and obstruction of Congress, said Chris Whipple, author of “The Gatekeepers,” a history of White House chiefs of staff.

“It shows that Susan Collins was right — Trump has learned a lesson,” Whipple said, referring to a prediction by the Republican senator from Maine that Trump would be more cautious after impeachment. “The lesson he learned is that he’s unaccountable. He can do whatever he wants now with impunity.”

He’s also projecting what kind of treatment he’s hoping to get from the next Republican president when he’s rotting in jail in 2028.

It’s still not too late to impeach and convict the motherfucker.  And this time, do it right.

Thursday, February 13, 2020

Revenge Porn

From the Washington Post:

Trump is testing the rule of law one week after his acquittal in his Senate impeachment trial, seeking to bend the executive branch into an instrument for his personal and political vendetta against perceived enemies.

And Trump — simmering with rage, fixated on exacting revenge against those he feels betrayed him and insulated by a compliant Republican Party — is increasingly comfortable doing so to the point of feeling untouchable, according to the president’s advisers and allies.

In the span of 48 hours this week, the president has sought to protect his friends and punish his foes, even at the risk of compromising the Justice Department’s independence and integrity — a stance that his defenders see as entirely justified.

Trump complained publicly about federal prosecutors’ recommended prison sentence for one of his longtime friends and political advisers, Roger Stone. After senior Justice Department officials then overruled prosecutors to lighten Stone’s recommended sentence, the president congratulated Attorney General William P. Barr for “taking charge” with an extraordinary intervention.

This is what the House had in mind when they voted out an article of impeachment on abuse of power.  Now it’s “hold my beer.”

He’s settling all the scores now.  This is his way of moving on.  But unlike Michael Corleone, he’s flapping his gums and tweeting his thumbs, daring the House and the Democrats to come after him again.

His allies and sycophants are fine with what he’s doing.  Hey, if they do some shit, get arrested, go to trial, all they have to do is keep quiet and upon conviction know that Trump will call in his buddy Bill Barr and fix it, justice be damned because as we all know, justice has a liberal bias.

They also know that if they do anything that could be seen as weak or disloyal to him — forget what’s right or legal — he will come down on them and their family for seven generations.

If you think this is bad, just wait and see what happens if he gets re-elected.

Tuesday, January 21, 2020

Dumbing Down

As I noted below, the impeachment trial of Trump is a study in foregone conclusions to the point that, according to Paul Waldman in the Washington Post, his defense team isn’t even trying.

After the Democratic House managers released a 111-page indictment providing copious detail on the events that led to impeachment, the nature of Trump’s misconduct and the constitutional basis for his removal, Trump’s attorneys responded with a six-page document that would have been shocking were it not just the kind of thing we’ve come to expect from this White House.

Indeed, it reads as though it was written by a ninth-grader who saw an episode of “Law & Order” and learned just enough legal terms to throw them around incorrectly. It makes no attempt to contest the facts, instead just asserting over and over that the president is innocent and the entire impeachment is illegitimate, calling it “unlawful” and “constitutionally invalid,” with no apparent understanding of what those terms mean. The articles of impeachment, Trump’s lawyers say, “fail to allege any crime or violation of law whatsoever, let alone ‘high Crimes and Misdemeanors,’ as required by the Constitution.” They then repeat this argument multiple times throughout a screed seemingly pitched to the Fox News hosts who will spend the coming days repeating its absurd claims.

The trouble, as any historian or constitutional scholar will tell you, is that just as there are crimes the president could commit that would not be impeachable (say, shoplifting a candy bar), there has never been any requirement that impeachment can only be used for violations of criminal law. Not only were the Framers deeply concerned about the potential of the president abusing his office, at the time the Constitution was written, there was no such thing as a federal criminal code.

Trump has found the one constitutional “expert” who will take such a position, however: Harvard professor emeritus and frequent Fox News guest Alan Dershowitz, whom Trump added to his defense team last week. “Criminal-like conduct is required” in order for a president to be impeached, Dershowitz now claims, to the puzzlement of pretty much everyone who knows anything about this topic.

Since hypocrisy is something of a job requirement for working for Trump, Dershowitz is naturally on video making exactly the opposite argument in 1998. “It certainly doesn’t have to be a crime if you have somebody who completely corrupts the office of president and who abuses trust and who poses great danger to our liberty,” he said at the time.

The defense wasn’t written for a law school review or to be submitted as a legal brief in a court of law.  It was written solely for the consumption by the audience of Fox News denizens and the lawyers who are sworn to mount a zealous defense of their client until the money runs out.  I am certain that if this brief, written like a homework assignment on the bus to school the day it was due, was submitted to a judge, it would be tossed, followed by charges of contempt and referral to the Bar Association for malpractice.  But they’ll get away with it because even though the United States Senate is comprised of many lawyers, they are not going to be held accountable to the canons of judicial ethics or peer review: it will be by Twitter.

Sunday, January 19, 2020

Sunday Reading

Spoiler Alert: No Justice for Trump — Susan B. Glasser in The New Yorker.

Shortly after 2 P.M. on Thursday, ninety-nine of the hundred members of the United States Senate raised their hands and swore en masse to do “impartial justice” in the impeachment trial of President Donald J. Trump. That, of course, is an impossibility in the political world they inhabit. Neither impartiality nor justice is on offer in this proceeding. Three years into Trump’s tenure, there is precisely no one in the U.S. Capitol who is undecided about the President, on the subject of his impeachment or any other. And yet there is real suspense, in the way that the Trump Presidency has conditioned us to expect: Will there be wild new revelations? (There already have been in the past twenty-four hours.) Will there be inappropriate tweeting by the defendant in the White House? (A given.) Will even a single senator break from the calcified partisan battle lines? (Who knows?)

This Senate trial is only the third such proceeding in American history, and, despite what appears to be its preordained acquittal of the President by his fellow-Republicans, it is starting out with such great uncertainty that it’s still not even clear if there will be witnesses called and evidence submitted. How can it be a trial without them? The Democrat-controlled House voted to impeach Trump in a party-line vote in December, and yet key facts about the President’s aborted scheme to pressure Ukraine for his personal political benefit remain unknown (although they are very much knowable), owing to an executive-branch information blockade ordered by Trump. Will those facts come out before the Chief Justice of the United States bangs down the gavel on the trial’s seemingly inevitable outcome?

In today’s brutally dysfunctional capital—in which institutions of government are controlled by feuding clans that communicate with each other almost exclusively via hostile tweets and cable-news sound bites—anything can turn into an exercise in raw power politics. Even the ministerial matter of transmitting the articles of impeachment from the House to the Senate and beginning the Senate trial became the subject of an entire holiday season of made-for-TV drama. For weeks, Speaker Nancy Pelosi refused to turn over the articles until she’d received assurances from Senate Majority Leader Mitch McConnell about what kind of trial he planned to run. No such assurances were forthcoming, although Pelosi arguably succeeded in one respect—turning the debate away from her side’s forthcoming defeat in the Senate to the matter of what would constitute a fair trial. Democrats have redefined victory to mean not necessarily winning the case but merely getting a proper hearing for it. For now, at least.

On Wednesday, after Pelosi finally ended her hold on the articles of impeachment, she named seven members of the House as managers who will prosecute the case in the Senate. On Thursday, at the stroke of noon, the House managers marched across the Capitol and physically presented the articles to the Senate in a self-consciously anachronistic twenty-first-century enactment of a process dreamed up by our eighteenth-century founders. There was gravitas, solemnity, talk of “high crimes and misdemeanors.” There were “wherefore”s and “hear ye, hear ye”s. Chief Justice John Roberts was summoned over from the Supreme Court to administer the senatorial oath and take up his duties as the trial’s presiding officer. The Senate Minority Leader, Chuck Schumer, later said that, as Roberts entered the chamber, “I saw members on both sides of the aisle visibly gulp.” “The weight of history,” as Schumer put it, was visibly upon the Senate. “God bless you,” Senator Chuck Grassley, the Iowa Republican, who was sitting in the chair, told Roberts after he swore him in.

But even now that the constitutional formalities have been dispensed with, McConnell has not revealed whether and how there will even be votes on requiring the testimony of new witnesses and the submission of documents that the White House refused to provide to the House, a stonewall more complete than any Administration’s in history. If such votes do happen, they are not likely to be until a week or more into the proceedings. Meanwhile, new revelations continue to spill out about Trump’s Ukraine machinations, including a series of sensational interviews this week by the indicted Trump contributor Lev Parnas, who said that Trump knew of Parnas’s efforts with Rudy Giuliani to pressure Ukraine into investigating former Vice-President Joe Biden. The suspense surrounding the trial mixes the dread certainty that today’s Senate is ill-equipped to handle its constitutionally dictated obligation with a lingering curiosity about whether a handful of Republican senators will force McConnell to hold a proceeding that is something other than a sham.

“The Senate is on trial as well as the President,” Jerry Nadler, the chairman of the House Judiciary Committee, said at the press conference where Pelosi introduced him and six others as the impeachment managers. It was a seemingly self-evident observation that nonetheless bears much repeating. The Senate trial could take between three and six weeks, according to one estimate, though Trump’s advisers are pushing Republicans for a much more abbreviated proceeding. However long it lasts, the trial will essentially consist of a hundred senators sitting silently at their desks, stripped of their cell phones and laptops and all the other accoutrements of modern political life, listening to the presentation of evidence in a case about which they have presumably already made up their minds. We listeners will have plenty of time to contemplate the Senate itself and what it has become in the Trump era.

“I understand that the politics of impeachment are difficult for many Senators,” Val Demings, one of the House managers, from Florida, tweeted soon after Pelosi appointed her to the job. “But I have not written off the Senate. Each Senator still has the power to do the right thing.” But this Senate is no closer to a real jury than the proceeding is to being a real trial. On Wednesday, Politico counted twenty-six Republican senators who had already put out statements or otherwise publicly indicated that they would vote against conviction and twenty-four more who probably would; Democrats were equally united around planned votes to convict. Republican sources have said that they don’t expect a single Republican defection on the final trial verdict, just as there was not a single Republican defection in the House on the impeachment itself.

For the past three years, the Senate has been one of the main arenas in which it has become clear just how totally and completely Trump has taken over the Republican Party. He has not only vanquished doubters; he has dominated them. Skeptics have been purged. Senators have abased themselves again and again. Those who stood up to Trump inside his own party have been exiled, silenced, or flipped. The President is on trial for holding hundreds of millions of dollars in congressionally appropriated aid to Ukraine hostage for his own personal political ends, and, indeed, the Government Accountability Office, a nonpartisan government watchdog, announced on Thursday, as the trial began, that the aid holdup was an illegal abuse of executive power. But Republican senators who claim an interest in national security have been loath even to acknowledge that there might be anything wrong with Trump’s behavior, even as an abstract matter of principle.

The suspense surrounding the trial, then, is not about the possibility that Republicans might suddenly change their minds about Donald Trump and his misdeeds. Lindsey Graham is not going to revert to his 2016 Trump-bashing self. Mitch McConnell and Chuck Schumer are not miraculously going to start talking and produce a plan for the trial that everyone can get behind. The Senate that voted 100–0 on the rules governing the impeachment trial of Bill Clinton, twenty-one years ago, is a thing of the distant past. Today’s uncertainty is about the nature, shape, and contours of the trial that will result from this more intemperate political moment. Mitt Romney, of Utah, and a few other so-called moderates—Lamar Alexander, of Tennessee; Susan Collins, of Maine; Lisa Murkowski, of Alaska—may yet force their colleagues to vote on bringing in Administration witnesses, such as Trump’s former national-security adviser John Bolton, whom the White House does not want to testify. But it is doubtful that even a single one of them will ultimately vote to convict. This is why the real uncertainty remains what it has been since the day Pelosi and the House embarked upon this impeachment course, last September: it is an uncertainty about what comes after the trial—after Democrats have taken their shot at Trump and, in all likelihood, failed.

Soon after the day’s ceremonial start to the Senate trial had wrapped up, Trump appeared before the cameras to call the case against him a “big hoax,” “a witch-hunt hoax,” “a complete hoax,” and “a phony hoax.” What will he talk about when the trial is over and he is completely and totally vindicated in the greatest acquittal of all time? How will he govern then?

Did Virginia Amend the Constitution Last Week? — Russell Berman in The Atlantic.

The commonwealth of Virginia [on Wednesday] voted to amend the U.S. Constitution, becoming the 38th and final state needed to ratify the Equal Rights Amendment, which prohibits discrimination on the basis of sex. Virginia’s action could be a momentous day in the nation’s history, heralding far-reaching changes in the law and capping a nearly century-long fight to enshrine women’s equality in the Constitution.

Or it might mean nothing at all.

Whether the Constitution has actually been amended for the 28th time—and for the first time in more than a quarter century—is now officially in question and a matter for the courts to decide. Even before the two Democratic-led chambers of the Virginia legislature voted today, supporters and opponents of the ERA had filed dueling federal lawsuits, launching a legal battle that could wind up in the Supreme Court.

A deadline that Congress originally imposed (and later revised) for ratification of the amendment by the states has long since passed. ERA backers are trying to get the deadline invalidated, while foes want not only to keep the lapsed due date intact but to prevent Congress from retroactively eliminating it.

As a generation of American schoolchildren learned from Schoolhouse Rock, a bill becomes a law when the president signs it (or Congress overrides his veto). But the endpoint for affixing an amendment to the Constitution is a bit murkier. Congress, through a two-thirds majority vote in each chamber, proposes changes, and then three-quarters of the state legislatures must ratify them. But then what happens?

There is no assigned role for the president in constitutional amendments, nor one, directly, for the Supreme Court. Instead a relatively little-known federal official, the archivist of the United States, collects the documents from the states, certifies an amendment’s ratification, and publishes it in the Federal Register.

The current archivist is David Ferriero, an appointee of former President Barack Obama who has held the position since 2009. The bulk of Ferriero’s job is to oversee the National Archives and Records Administration, but he now finds himself caught in the middle of a rekindled fight over the Constitution as a named defendant in both federal lawsuits. Attorneys general for the states of Alabama, Louisiana, and South Dakota have asked a judge to prevent Ferriero from certifying the ERA’s ratification and to acknowledge that five states rescinded their ratifications and should not be counted among the 38. Two pro-ERA advocacy groups, meanwhile, are asking a different federal court to invalidate the 1979 deadline that Congress originally attached to the amendment, ignore the states that have tried to rescind their ratifications, and force Ferriero to certify the ERA as ratified once Virginia submits its paperwork.

In the past, Ferriero seems to have taken the position that the ERA is a viable amendment, the lapsed congressional deadline notwithstanding. He accepted the post-deadline ratifications of Illinois and Nevada and included both states on a list of those that had ratified the amendment. A National Archives and Records Administration spokesperson, Laura Sheehan, told me it was the archivist’s “responsibility to document the actions that have been taken by the states with respect to any proposed constitutional amendment. The [Office of Legal Counsel] opinion has separately determined that the recent state approvals cannot serve to cause the Equal Rights Amendment to be adopted.” (Ferriero was not available for an interview.)

Virginia was poised to become the 38th state to ratify the ERA in November once Democrats ousted Republicans from the majorities in the state House of Delegates and Senate. Party leaders immediately confirmed that they would make good on a campaign pledge to approve the amendment.

Facing a crucial decision and having already been sued preemptively by ERA foes, Ferriero asked the Department of Justice for legal guidance. Not surprisingly, the Trump administration came down on the side of the amendment’s opponents: In a 38-page opinion, the Office of Legal Counsel basically declared the ERA dead and said that in order to revive it, supporters would have to start from scratch. “Even if one or more state legislatures were to ratify the proposed amendment, it would not become part of the Constitution, and the Archivist could not certify its adoption,” the opinion states. “Congress may not revive a proposed amendment after a deadline for its ratification has expired. Should Congress wish to propose the amendment anew, it may do so through the same procedures required to propose an amendment in the first instance, consistent with Article V of the Constitution.”

In a statement last week, the National Archives and Records Administration said it would abide by the Justice Department’s opinion, “unless instructed otherwise by a final court order.”

Virginia Democrats knew that their votes today might be for naught, but they celebrated anyway. “We’ll see what happens, but from my perspective we have done what we needed to do to become the 38th state needed for ratification,” Delegate Charniele Herring, the majority leader of the Virginia House, told me by phone after the vote.

In addition to the courts, ERA backers are looking to Congress, where House Democrats hope to pass legislation that would remove the deadline for ratification altogether. Still, even action by Congress would provoke a certain legal challenge from ERA opponents who contend that lawmakers should not be able to remove a deadline long after it expired.

For now, however, Virginia Democrats are trying to tune out the obstacles, treating their votes today as a history-making moment. State Senator Jennifer McClellan told me she felt “a combination of joy and relief,” as well as the presence of a century’s worth of women activists “on my shoulders.” As for the possibility that the courts will block the ERA, leaving its adoption no closer than it was decades ago, McClellan sounded a note of optimism instead. “I don’t think that’s going to happen,” she told me. “I still have faith that this is going to happen sooner rather than later.”

Doonesbury — Jiminy Cricket!

Tuesday, December 17, 2019

A Dire Threat

William Webster was the director of the FBI, the CIA, and a federal judge.  And [full disclosure], a friend of my family in St. Louis.  He wrote the op-ed below yesterday for the New York Times.

The privilege of being the only American in our history to serve as the director of both the F.B.I. and the C.I.A. gives me a unique perspective and a responsibility to speak out about a dire threat to the rule of law in the country I love. Order protects liberty, and liberty protects order. Today, the integrity of the institutions that protect our civil order is, tragically, under assault from too many people whose job it should be to protect them.

The rule of law is the bedrock of American democracy, the principle that protects every American from the abuse of monarchs, despots and tyrants. Every American should demand that our leaders put the rule of law above politics.

I am deeply disturbed by the assertion of President Trump that our “current director” — as he refers to the man he selected for the job of running the F.B.I. — cannot fix what the president calls a broken agency. The 10-year term given to all directors following J. Edgar Hoover’s 48-year tenure was created to provide independence for the director and for the bureau. The president’s thinly veiled suggestion that the director, Christopher Wray, like his banished predecessor, James Comey, could be on the chopping block, disturbs me greatly. The independence of both the F.B.I. and its director is critical and should be fiercely protected by each branch of government.

Over my nine-plus years as F.B.I. director, I reported to four honorable attorneys general. Each clearly understood the importance of the rule of law in our democracy and the critical role the F.B.I. plays in the enforcement of our laws. They fought to protect both, knowing how important it was that our F.B.I. remain independent of political influence of any kind.

As F.B.I. director, I served two presidents, one a Democrat, Jimmy Carter, who selected me in part because I was a Republican, and one a Republican, Ronald Reagan, whom I revered. Both of these presidents so respected the bureau’s independence that they went out of their way not to interfere with or sway our activities. I never once felt political pressure.

I know firsthand the professionalism of the men and women of the F.B.I. The aspersions cast upon them by the president and my longtime friend, Attorney General William P. Barr, are troubling in the extreme. Calling F.B.I. professionals “scum,” as the president did, is a slur against people who risk their lives to keep us safe. Mr. Barr’s charges of bias within the F.B.I., made without providing any evidence and in direct dispute of the findings of the nonpartisan inspector general, risk inflicting enduring damage on this critically important institution.

The country can ill afford to have a chief law enforcement officer dispute the Justice Department’s own independent inspector general’s report and claim that an F.B.I. investigation was based on “a completely bogus narrative.” In fact, the report conclusively found that the evidence to initiate the Russia investigation was unassailable. There were more than 100 contacts between members of the Trump campaign and Russian agents during the 2016 campaign, and Russian efforts to undermine our democracy continue to this day. I’m glad the F.B.I. took the threat seriously. It is important, Mr. Wray said last week, that the inspector general found that “the investigation was opened with appropriate predication and authorization.”

As a lawyer and a former federal judge, I made it clear when I headed both the F.B.I. and the C.I.A. that the rule of law would be paramount in all we did. While both agencies are staffed by imperfect human beings, the American people should understand that both agencies are composed of some of the most law-abiding, patriotic and dedicated people I have ever met. While their faces and actions are not seen by most Americans, rest assured that they are serving our country well.

I have complete confidence in Mr. Wray, and I know that the F.B.I. is not a broken institution. It is a professional agency worthy of respect and support. The derision and aspersions are dangerous and unwarranted.

I’m profoundly disappointed in another longtime, respected friend, Rudy Giuliani, who had spent his life defending our people from those who would do us harm. His activities of late concerning Ukraine have, at a minimum, failed the smell test of propriety. I hope he, like all of us, will redirect to our North Star, the rule of law, something so precious it is greater than any man or administration.

This difficult moment demands the restoration of the proper place of the Department of Justice and the F.B.I. as bulwarks of law and order in America. This is not about politics. This is about the rule of law. Republicans and Democrats alike should defend it above all else.

In my nearly 96 years, I have seen our country rise above extraordinary challenges — the Great Depression, World War II, the Korean War, the Vietnam War, segregation, assassinations, the resignation of a president and 9/11, to name just a few.

I continue to believe in and pray for the ability of all Americans to overcome our differences and pursue the common good. Order protects liberty, and liberty protects order.

Judge Webster may be old-school conservative, but right now that seems like a breath of fresh air compared to the right-wing nutsery foisted upon us by this anything-but-rational crowd.

Thursday, December 5, 2019

Law Schooling

Yesterday’s House Judiciary Committee hearing was as expected: boisterous and boorish on the part of the Republican shills, who displayed not only their fealty to Trump; they also showed how little they paid attention in law school.  They got schooled by one of the witnesses.  And how.

Charles P. Pierce:

I don’t mean to diminish the gold-standard, A-level Founders porn with which the nation was gifted on Wednesday. I am a ridiculous nerd for such stuff, and not even the woebegone visage of Jonathan Turley, who’s seeing all those juicy Clinton impeachment TV appearances coming back for him like the visitation of the spirits at Scrooge’s place, can take the smile off my face.

But the best practical argument made in the context of 2019 politics came from Professor Pamela Karlan, who announced her presence with authority by clapping back ferociously on Rep. Doug Collins, the bellowing bullshit auctioneer from Georgia. Because he apparently believes that everyone is as deeply afflicted by deliberate ignorance as he is, Collins snarked about how none of the expert witnesses possibly could have read all 300 pages of the House Intelligence Committee’s damning report by the time they came to testify. To which Professor Karlan replied:

Here, Mr. Collins I would like to say to you, sir, that I read transcripts of every one of the witnesses who appeared in the live hearing because I would not speak about these things without reviewing the facts. So I’m insulted by the suggestion that as a law professor I don’t care about those facts.

I do not envy those of Professor Karlan’s students who show up unprepared for class.

I didn’t stick around for the whole mess yesterday, but last evening as I was driving I heard one nitwit — Rep. Stubey, I think was his name — carry on about how Trump was denied his Sixth Amendment rights to confront his witness and how unfair it all was because he was being railroaded and tried and convicted. Well, A) the hearing was not a trial, and B) the Sixth Amendment applies only to criminal trials. Impeachment and removal is not a criminal trial. Trump may well have committed criminal acts, but he’s not going to be tried for those; he’s being removed from office. The criminal cases will come after, and no, double jeopardy will not be attached because a conviction in the Senate is the outcome of being voted out of office based on the articles of impeachment, not the actual criminal act itself. That’s for the Southern District of New York to do.

In my non-law-school way of thinking, the closest comparison impeachment comes to is a really drawn-out job termination hearing. If you suck at your job, you get evaluated, and then they fire you. If the reason for your termination was embezzlement or giving trade secrets to your competitor, you lose your job. If the company decides to report you to the authorities for your criminal act, that’s another matter. That’s pretty much what happens with impeachment. Trump’s life and liberty are not at stake; his job is in jeopardy, and there’s no constitutional guarantee to protect that.

If I were the law schools where some of these Republican minions got their degree, I’d take a close look at the poor examples of jurisprudence they turned out and think about getting their diplomas back.

Thursday, September 26, 2019

Thursday, June 20, 2019

Hope Floats

I didn’t go to law school, but I’m pretty sure you cannot make up something like “absolute immunity” as an excuse not to answer questions before Congress.

“Because of this constitutional immunity, and in order to protect the prerogatives of the Office of President, the President has directed Ms. Hicks not to answer questions before the Committee relating to the time of her services as a senior adviser to the President,” Cipollone wrote, adding that Hicks previously testified before the House and Senate Intelligence committees under similar circumstances.

The administration’s position that she does not need to answer questions about her time in the administration is unlikely to satisfy the committee’s Democrats, who could try to go to court to force her to answer their questions.

Unless you’re eight years old and “neener, neener” sounds too silly.

But there is such a thing as “contempt of Congress.”

Thursday, May 16, 2019

More Equal Than You

Earlier this week the White House told a judge that the judiciary branch of the government has no right to rule on what the executive branch does.  And now they’re telling Congress what they can and cannot do.

The White House’s top lawyer told the House Judiciary Committee chairman Wednesday that Congress has no right to a “do-over” of the special counsel’s investigation of President Trump and refused a broad demand for records and testimony from dozens of current and former White House staffers.

White House counsel Pat Cipollone’s letter to Chairman Jerrold Nadler (D-N.Y.) constitutes a sweeping rejection — not just of Nadler’s request for White House records but of Congress’s standing to investigate Trump for possible obstruction of justice. In his letter, Cipollone repeated a claim the White House and Trump’s business have begun making — that Congress is not a law enforcement body and does not have a legitimate purpose to investigate the questions it is pursuing.

But Cipollone stopped short of asserting executive privilege. Instead, he told Nadler he would consider a narrowed request if the chairman spelled out the legislative purpose and legal support for the information he is seeking.

“Congressional investigations are intended to obtain information to aid in evaluating potential legislation, not to harass political opponents or to pursue an unauthorized ‘do-over’ of exhaustive law enforcement investigations conducted by the Department of Justice,” Cipollone wrote.

In an interview, Nadler called the White House argument “preposterous.”

“The White House is making the outrageous claim that a president cannot be held accountable in any way to the American people,” he said, adding: “This is ridiculous, it would make the president above the law, and of course we totally reject it. We will subpoena whoever we have to subpoena.”

Do you remember what the “legislative purpose” was for investigating Bill Clinton’s sex life?  Or the ten investigations of Benghazi?  I must have been out that day.

Unless there’s some clause in the Constitution that’s been dormant since 1789 that says only the Republicans can investigate the peccadilloes or failed rescue missions of Democrats along with their stated duties of oversight, the law school where attorney Cipollone got his degree should have him back for his own “do-over” of federal case law study.

I get it that a lawyer has a duty to zealously defend his client in court and use every means and arguments available to ensure that he gets a fair hearing.  But even I know that you can’t either make shit up or come up with some cockamamie interpretation of the Constitution to pull it off.

Friday, March 8, 2019

Run-On Sentence

According to the folks who know the law and were following the trial of Paul Manafort, Trump’s former campaign manager and one-time lobbyist for unsavory people, the sentence handed down yesterday for his conviction last summer was far too lenient and came from a judge who demonstrated apparent sympathy for the defendant during the trial.  Mr. Manafort was given 47 months when the sentencing guidelines called for twenty years.

But it’s not over,  He also faces sentencing in a Washington, DC courtroom and this judge isn’t likely to be so friendly.

Chances are very good that he will be in prison for the rest of his life.