Saturday, September 10, 2022

Following The Election Returns

This is not the defense of the Court the Chief Justice is looking for: I suggest the Chief Justice spend time with a gynocologist facing a patient with an ectopic pregnancy and waiting until her life is "clearly" in danger before treating her condition with a medical abortion, knowing full well that "clearly" could be determined by a jury of non-doctors in a criminal trial.  And then he can talk to us about "gut-wrenching," and we can discuss the standards or legitimacy applied to outcomes we like or don't like.  Seems to me that situation alone is a pretty good basis for criticizing the legitimacy of a court which considers such circumstances a small price to pay for what they perceive to be Constitutional order.

Now:  is that a sound basis for questioning the legitimacy of an outcome I didn't like? I didn't like the outcome of Hobby Lobby (granting private companies a "religious conviction" that overrides the interests of their employees), because I thought it was a poorly reasoned decision. Yes, the better argument against Supreme Court opinions is the reasoned one. There really wasn't any excuse for the "Impeach Earl Warren" billboards (about as far as that ever got, too). OTOH, as Mr. Dooley reportedly reported, the Supreme Court follows the election results.  Which, like all such aphorisms, is subject to mis-interpretation:

In 1900, when the Republicans won a huge victory, the Supreme Court used some tortured arguments to decree that the Spanish American War victors could make people in the newly-acquired territories pay taxes. Mr. Dooley observed that “the Supreme Court follows the election returns.”

It was quoted again when the Supreme Court began ruling that Franklin Roosevelt’s New Deal programs were unconstitutional. Since the Democrats had a huge majority in Congress Roosevelt began talking about “packing the court” by naming additional justices. He didn’t do it, but suddenly the Supreme Court began to see its way clear to allow the New Deal to continue.

Both sides seem to think that the addition of Judge Amy Barrett to the court to create a six-three conservative majority will overturn Roe v Wade. The Republicans have held out the promise of such an action for decades in order to keep social conservatives in line. But you may have noticed that it hasn’t happened in 47 years.

Is there doubt the suspected outcome will not come to pass? There are reasons to think so.

The vaunted independent judiciary does not live in isolation and judges are very conscious of which way the wind blows. Remember the strained reasoning and rewriting Republican-appointed Chief Justice John Roberts did in order to save the Affordable Care Act? Roberts also took umbrage at President Trump’s description of a jurist as “an Obama judge” saying that we do not have Obama judges or Trump judges, we just have judges.

The Pew Research Center polls show that 70 percent of the American people (including 52 percent of Republicans) do not believe abortions should be outlawed. Restricted, yes. But outlawed? No.

The conservative Supreme Court will hear cases around the margins but will a straight-ahead decision that overturns a decision made 47 years ago happen? The justices are appointed for life. The prospect of forever living in infamy for a decision that flies in the face of settled law and over the objections of two-thirds of the American people may be too dire to contemplate. Roberts twisted himself in knots to save Obamacare. Will he really preside over a decision that looks back at 47 years of abortions and say “never mind?”

As with the court during Roosevelt’s era, this court has to be conscious of the Democrats talking about “packing the court.” Will the justices sit by while the Congress wreaks havoc with the highest court in the land? Or will they protect the institution they revere? Does Roberts want to preside over a squabbling 15-member mini-legislature?

Joe Biden won’t say whether he favors packing the court, but he doesn’t have to. All he has to do is leave the possibility hanging out there. Polls say he will win the election, an iffy proposition but possible. If he wins big, the Republicans could lose the Senate in a Blue Wave. The Democrats could then grant statehood to Puerto Rico and Washington, D.C., and thus add four new Democratic senators. All it takes is an act of Congress to authorize it. (As it did with Alaska and Hawaii.)

Majority Leader Mitch McConnell, in his haste to confirm Barrett, looks like a man who expects an election disaster.

I think there is reason to believe Mr. Dooley’s dictum that the Supreme Court will follow the election returns.

"The vaunted independent judiciary does not live in isolation and judges are very conscious of which way the wind blows."   Well, that still seemed arguable true; until this June.

Yeah, that opinion was written before Dobbs; and a fairly decent prediction that was shot to pieces by Justice Alito.  Threats of "court packing" did not faze them, and yes, they were quite happy to "look[] back at 47 years of abortions and say 'never mind[!]".  In fact, consider the Chief Justice's remarks as a weak attempt after the barn door was left open and the barn set ablaze, to defend it by saying at least the horse got out okay.  Does he think Congress won't wreak havoc on the highest court in the land?  Is he paying attention to the election results so far?

Because I think November is going to be the Court's wakeup call.  I just don't think they'll get it; not if Justice Thomas's concurring opinion in Dobbs is any indication.  True, the vast majority of Americans don't know if the grounds they disagree with the Court are on just outcome related or related to the shredding of stare decisis in Dobbs.  Does it matter?

I quite agree the adage of "whose ox is gored" drives all public sentiment.  Korematsu didn't affect enough people, even though there's an argument to be made that Earl Warren led the Court as he did as a penance for administering the Japanese internment camps in California.  That doesn't justify Korematsu, but then again, neither does Brown erase Plessy or Dred Scott.  The Court has one helluva lot to answer for, but so do we all.

Will the Court follow the elections returns in November?  That remains to be seen.  Trump truly unleashed a demon that we are only now shoving back into the bottle. The Supremes in their ivory bubble may, or may not, get the message.  Alito clearly thinks he did the right think, returning abortion to the states.  Will he go further and ban the Federal government from codifying Roe on the grounds of States's rights (which is what it will be no matter how he dresses it up)?  Is the Court's defense really that is know the law better than we the people, and we'd just better respect that?

I agree the law is a complex beast and reading Twitter it's especially clear most people have no clue how the legal system actually works (Bad Legal Takes alone makes you wonder what planet those people are on?  It almost makes me believe the MCU Multiverse is real, and they are writing in from some adjacent but completely different reality).  Most people, in other words, are simply incapable of criticizing Supreme Court opinions except as they approve or disapprove of the outcomes.  Then again, many people disagreed with the not guilty verdict in the OJ Simpson trial, and the republic still stands.  I, myself, was never convinced he did it, unless he did it in a hazmat suit he managed to vaporize, and do that before he got in his car and drove away.  I mean, there had to be gallons of blood at that murder scene, and he didn't have a drop on him or any of his clothing?  That's a helluva well planned crime of passion.  I'm not saying he's innocent; I'm just saying I have serious questions.

Does that call into question the entire criminal justice system?  Not as strongly as Popehat does when he inveighs against the carceral system that brutalizes and brutally punishes people.  Riker Island is a fine recent example; but there are plenty of prisons in America where you don't even want to be a visitor surrounded by four burly guards.  I'm very comfortable criticising that, and calling into question the very idea of "criminal justice."  But it's not because I know someone in jail.

I'm only indirectly affected by Dobbs, but as Donne said, no man is an island.  I think my criticisms, technical or merely outcome related, are perfectly valid.  And I think the "integrity" of the court is preserved by the Court; not by complaining about people on Twitter; or in the streets; or, this November, at the ballot box.  Removing a constitutional right, saying "Never mind!" after 50 years, is hardly the hallmark of an institution with integrity to burn.

Especially when the argument supporting it was just so damned bad.

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The DOJ Told Judge Cannon There May Be…

...other documents missing.

One does seriously wonder if she’s smart enough to realize ETTD. And if this can happen to attorneys:
It can happen to judges. Judges are just lawyers with black robes. They can damage their careers, too. Impeachment? Not likely. But her judicial reputation is already in tatters. There may well be a Presiding Judge in her district who takes notice. The Defense Counsel's POV; and not invalid for that.  But I don't take this tweet as proof of Trump's guilt. I take it as public evidence that DOJ may well have sounder evidence to question whether all the docs Trump shouldn't have were at MAL.  Personally I wouldn't believe Trump if he came in soaking wet and said it was raining outside.  And the DOJ does say it's still missing documents, or has reason to think it is. If there are sufficient grounds for a magistrate to issue a search warrant for Bedminster of Trump Tower, I have no problem with that.

Even as I agree this tweet hardly constitutes sufficient evidence.  Unless it was sought by Trump against one of his "enemies" in Judge Cannon's court, of course.  Seems to be the way she's going, anyway.
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The Romans Had An Empire

And most people think that was pretty much a good thing, punctuated by a famous crucifixion and maybe the sacking of Jerusalem a few years later (the historian Josephus claimed the blood in the streets reached the horses’ knees, but that’s unlikely). They did slaughter pretty much everyone in the city. We forget that crucifixion was a Roman invention used to punish political prisoners and maintain the Pax Romana.

Yeah, they built aqueducts and paved roads and established incredibly well planned cities (at a certain size a new city was started down the road). They were tolerant of other religions, just not of alternate political ideas. And all roads and all things really did lead to Rome. Empires only exist to support the Imperium, and that leads to massive exploitation. That massive exploitation was sustained by brutality. Those aqueducts and paved roads came at a very high price for anyone not at the top of Rome’s socioeconomic pyramid.

London’s public benches in Victorian England were made of teak because it is so durable; and because England had access to so much of it, and harvested it with effectively slave labor. Exploitation makes everything cheaper.

George Orwell wrote two excellent essays about the price of being a colonial power. He saw the racism and exploitation which requires racism of the Empire from the ground up. You don’t run an empire on cricket and tea time and impeccable manners. Britons may never, never be slaves, but they enslaved much of the planet, and brutalized it in the name of “civilization.” It was just an excuse for being powerful enough to take what they wanted.

They weren’t unique; the French, the Belgians, the Germans all did it.  Great Britain was just more successful at it.

Should we bring this up now, at the death of the Queen of England? We cannot mourn her personally: we didn’t know her. We knew her persona, her public image, her position as Head of State of Great Britain; as monarch.

When else do we publicly and internationally discuss this, then? When it safely doesn’t matter? When no one really cares? 
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You Sure That’s Not Coca-Cola?

It’s okay, I’m from the South. It’s a Southern joke.
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Friday, September 09, 2022

I Never Want To Hear Jake Tapper Blame Boomers For Anything Ever Again

Except now this is the stupidest opinion he’s ever expressed in public. Just to elaborate on the point. Not to mention the diplomatic insult it would raise.

My opinion stands, but:
"Former presidents are not expecting to receive individual funeral invitations from Buckingham Palace, according to two people familiar with protocol, with the expectation that the US will get one official invitation through the White House," CNN reported. "This means Biden will ultimately decide who will join his official delegation to the funeral ceremonies in the United Kingdom. No decisions will be made until a formal invitation is made from the palace, a White House official said, even as preliminary discussions are already taking place."
Ideally Biden will invite Obama and snub Trump. Or he could invite W., too; and Hillary:
For recent high-profile funerals, official US delegations have included both current and former US presidents. When Pope John Paul II died, President George W. Bush attended with his father, President George H.W. Bush, and former President Bill Clinton," CNN reported. "President Barack Obama included George W. Bush, Clinton and former President Jimmy Carter in the official delegation to Nelson Mandela’s funeral. Bush traveled with him to South Africa aboard Air Force One, along with Hillary Clinton."
And take Hillary and W. on AFOne.

Although I think the snub is in keeping with his denunciation of MAGA Republicans.
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Could Still Get Worse

I read about this on the Texas Tribune. I haven't seen it yet, other than in this tweet. Gotta say, I like it. And Abbot doesn't:

Abbott’s campaign quickly raised questions about the group.

“How dirty can Beto’s scam dark money groups be if they won’t give directly to him?” Abbott strategist Dave Carney tweeted. “Won’t protect him for accountability.”

I've no idea what "accountability" they're squealing about.  There isn't a false fact in that ad, right down to Abbott's statement shortly after the Uvalde massacre that ends it.  Nobody knows who this group is, and frankly, this is just Citizens United coming home to roost:

A group by the same name was registered as an LLC late last month in Delaware, according to records there. Its registered agent is Corporation Service Company in Wilmington. Delaware is notorious for having some of the most lax corporate laws in the nation, allowing people to form corporations there while providing little public information about themselves.

As an LLC, the group is not immediately subject to state requirements to disclose its donors as more traditional political action committees are required to do. The group would have to register with the Texas Ethics Commission — and face the state’s disclosure requirements — if it met the state’s definition of a political committee: “two or more persons acting in concert with a principal purpose of accepting political contributions or making political expenditures.” But whether it meets that definition remains unknown unless the group volunteers more information about itself.

A national campaign finance expert, Brett Kappel, said there is “nothing illegal” about the group’s advertising due to the U.S. Supreme Court’s Citizens United decision, which cleared the way for corporations and other third-party groups to dump unlimited money into elections.

Beto isn't cozying up to this:

Asked about the group after a campaign stop Thursday in Lockhart, O’Rourke said he did not “know who this is.’ He said the group, as well as any others like it, should disclose their donors even if they are not required to by law.

“Republicans, Democrats, people across the state of Texas, want to make sure that we know who is seeking to influence the outcomes of elections,” O’Rourke said.

But he's not exactly running from it, either.   Me, I'll just assume it's not Russia or North Korea or Saudi Arabia, and leave it alone.  What's life without a little mystery?  Especially since it's bugging Greg Abbott.

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Since You Didn't Ask

(Although I have to say the idea of the UK being the Corgi here is a bit...odd.) And giving fair time to opposing views: Although it's almost not an iota's worth of difference, my respect for Queen Elizabeth in death, is not the same thing as honoring the monarchy: The Queen is dead. Long live the King. (Maybe it's time to revisit that play about a fictional King Charles III causing a constitutional crisis? Too soon?)
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🚨

Let's start here with the flavor of the judge's ruling, rather than the full meal:

Plaintiff initiated this lawsuit on March 24, 2022, alleging that “the Defendants, blinded by political ambition, orchestrated a malicious conspiracy to disseminate patently false and injurious information about Donald J. Trump and his campaign, all in the hopes of destroying his life, his political career and rigging the 2016 Presidential Election in favor of Hillary Clinton.” (DE 177, Am. Compl. ¶ 9). On this general premise, Plaintiff brings a claim for violations of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), predicated on the theft of trade secrets,obstruction of justice, and wire fraud (Count I). He additionally brings claims for: injurious falsehood (Count III); malicious prosecution (Count V); violations of the Computer Fraud and Abuse Act (“CFAA”) (Count VII); theft of trade secrets under the Defend Trade Secrets Act of 2016 (“DTSA”) (Count VIII); and violations of the Stored Communications Act (“SCA”) (Count IX). The Amended Complaint also contains counts for various conspiracy charges and theories of agency and vicarious liability. (Counts II, IV, VI, and X–XVI).

I know you don't read it as I do (i.e., as a lawyer does, even a superannuated one as myself, so long out of legal practice I've almost forgotten how to draft a Defendant's Original Answer.), so let me elucidate, briefly. Because for a judge who is supposed to appear impartial and objective at all times, this opening paragraph screams the judge's intent:  get this crap outta my court! 

First, the court quotes the plaintiff's pleading, establishing immediately the premise that will be proven later: this is a stinking pile of crap.  The allegation as quoted is farcical; and the court wants to be sure its full flavor is preserved and presented as grounds for this ruling.  The long quoted harangue, so overly broad as to be nothing but a political rant, is the "general premise" upon which claims are brought for as many violations of law as one lawyer (or set of lawyers) can conjure up.  Now generally it's a good idea to throw as many grounds for recovery against the judicial wall as you can, so at least some of them stick.  But this is a mulligatawny of complaints, an alphabet soup of grievances meant to express how badly the Plaintiff has been treated, rather than state a claim cognizable by a court of law.

It's a joke, IOW.

Plaintiff’s theory of this case, set forth over 527 paragraphs in the first 118 pages of the Amended Complaint, is difficult to summarize in a concise and cohesive manner. It was certainly not presented that way. Nevertheless, I will attempt to distill it here.

The court has to; I don't.  But 118 pages?  That's not a pleading, it's an overextended legal brief.  I've said before Trump is filing suits like he was pro se, and I stand by that.  We'll come back to that point in a minute, because it doesn't help his counsel one jot.  Hang on, let the court explain:

First, the pleading itself. A complaint filed in federal court must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(1). Each allegation must be simple, concise, and direct. Each claim must be stated in numbered paragraphs,and each numbered paragraph limited as far as practicable to a single set of circumstances. Fed. R. Civ. P. 10.

Plaintiff’s Amended Complaint is 193 pages in length, with 819 numbered paragraphs. It contains 14 counts, names 31 defendants, 10 “John Does” described as fictitious and unknown persons, and 10 “ABC Corporations” identified as fictitious and unknown entities. Plaintiff’s Amended Complaint is neither short nor plain, and it certainly does not establish that Plaintiff is entitled to any relief.
You get there, in fairly plain language, what an original Complaint is supposed to do:  set forth briefly the facts and law which establish Plaintiff's injury at the hands of the Defendant, and why Plaintiff is entitled to relief.  In law school we learn this as a "cause of action," because the courts can only grant relief on a recognized "cause of action."  Otherwise the courts are just calling balls or strikes in Calvinball, and the courts are clogged with people demanding justice because...well, because.  A "cause of action" controls what the courts can do, and can't do.  The court is saying, and will explain in detail (which I'll skip) that Trump hasn't stated a cause of action, and so the court can't do anything with Trump's Complaint.

Pretty much what we lawyers call "hornbook law," meaning it's so fundamental you can't ignore it; except Trump's lawyers did.  And even if they did properly state a cause of action:

More troubling, the claims presented in the Amended Complaint are not warranted under existing law. In fact, they are foreclosed by existing precedent, including decisions of the Supreme Court. 

Yeah; this is the court's way of saying plaintiff's case is a dog's breakfast.  Again, I'll skip the details, fascinating as they are.  But the court's opinion itself is 65 pages long, addressing the claims of a Complaint that runs to 118 pages; we have to cut out a great deal of detail just to get the interesting bit.  Suffice to say the court doesn't treat the Complaint as a pro se document, but Trump's attorneys would be better off if it were.  There isn't a shred of the Complaint that survives the court's analysis, and when that analysis is point-by-point examination of how the pleading fails to state a cause of action, the fundamental purpose of a Complaint, there's going to be a lot of attorney blood on the floor.  Take my word for it, it's pretty freakin' brutal.

Now, throughout I've written of the "Complaint," but the court addresses the "Amended Complaint."  I did that just avoid typing "Amended" so many times.  Now the court can explain the difference.  First, it is noted the Amended Complaint was allowed in order to cure certain legal deficiencies noted by the Defendants.  So how'd that work out?

Instead, Plaintiff added eighty new pages of largely irrelevant allegations that did nothing to salvage the legal sufficiency of his claims. The inadequacies with Plaintiff’s Amended Complaint are not “merely issues of technical pleading,” as Plaintiff contends, but fatal substantive defects that preclude Plaintiff from proceeding under any of the theories he has presented. At its core, the problem with Plaintiff’s Amended Complaint is that Plaintiff is not attempting to seek redress for any legal harm; instead, he is seeking to flaunt a two-hundred-page political manifesto outlining his grievances against those that have opposed him, and this Court is not the appropriate forum.
 That pretty much sums up the preceding 63 pages of this order.  The judge then dismisses with prejudice all claims of the plaintiff against the defendants purportedly raised in the Amended Complaint, and signs off with this statement:

I reserve jurisdiction to adjudicate issues pertaining to sanctions.  

Which has the press saying this:
That's an invitation to the defendants to seek attorneys fees as sanctions.  Of course, Trump pays in horses, when he pays at all, so that might be a bootless enterprise.  Still, it couldn't hurt.

So, why is this court order important? Well, partly for this reason: Let me divert your attention for one minute, the order by Judge Middlebrooks on Trump's attempt to have this case rmoved to Judge Cannon: Forum shopping with a vengeance. And before tout le monde starts the hue and cry again about the "corruption" inherent in the system because of this one judge, I will remind le monde that Trump lost 60 cases claiming "election fraud," including at least one case that went straight to the Supreme Court, WHILE HE WAS THE SITTING POTUS. He's now an FPOTUS, and while that seemingly carries a great deal of weight in Judge Cannon's court, it really doesn't anywhere else. And given the nature of the issues (see below), I don't see this case lingering long in the 11th Cir. or on the Supreme Court docket. I would also underline the point that Trump did not have better lawyers in fhe face of the DOJ in Judge Cannon's courtroom. Had this case landed in Middlebrooks' court, it would have faced the same level of scrutiny.  Which already damns Judge Cannon simply by the inevitable comparisons.  And is underscores my assertion that Judge Cannon, despite the reputation of the 11th Cir., can't really expect to be treated any better going forward than Trump was in Judge Middllebrooks' court. Let's start with the appeal process. I'm no expert on federal appeals, and especially interlocutory appeals (appealing the effect of an order that is not a final order in a case.) But the general rule for appeals is that you must first give the lower court a chance to cure its error before appealing that error to the higher court. Every appeal is based on error which much be corrected for the law to be followed and justice to be done.  As I mentioned with Bannon's appeal of his contempt charge; the first step in that appeal is a motion for new trial, giving the trial court an opportunity to correct the claimed error(s).  I'm assuming (perhaps wrongly) that such an action is necessary (or at least wise?) in an interlocutory appeal like the search warrant case presents.  That may be why the DOJ is asking the judge for small corrections in her order: That's one point. The issue of national security and the government's ability to conduct criminal investigations, is another: The DOJ wants to make it clear to the judge that she is meddling with primal forces: I assume this would also get these documents into the record in time for a review by the appellate court (which won't have a full record, because there isn't one yet. It behooves the DOJ to make that record as full as possible; which explains Trump's objections. They aren't quite that stupid.) The DOJ also has its eye on the 11th Circuit:
Will Judge Cannon "back down"? I kinda doubt. She's proven she is in so far over her head she has to look up to see bottom. That's not a condition easily cured by a quick reversal of opinion. I expect her to dig in her heels, and the DOJ to appeal instanter, urging haste on the grounds this order interferes with a criminal investigation (something the Supremes have said civil courts cannot do), interferes with national security concerns (🚨), and even interferes with the operations of Congress. Yeah, she hit the trifecta. I don't see anything going her way on appeal.

But I definitely think that's where this goes next.
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Thursday, September 08, 2022

It’s My Understanding Giuliani Started These

For pretty much this reason. Irony, huh?
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Sort of In Memoriam

TC eulogizes Barbara Ehrenreich: 

 LIKE MOST PEOPLE when I think of Barbara Ehrenreich I always think of her best known book Nickled and Dimed in which she did some Nellie Bly style reportage by taking some minimal wage, awful jobs and trying to live on the money she made while reproducing the living conditions, travel, etc. that are the daily experience of the working poor.  I admired the book very much and still find some of what she said in it insightful, especially her admission that she could only approximate the mental experience of People who knew they were trapped in that life because he knew it was a time-limited project and she would return to her life as a writer and intellectual.

I have a friend who went to seminary in Louisville, KY.  One of the courses he took there required an "urban experience" where students were dropped off in parts of very old Louisville, neighborhoods with houses that dated back to the last century, working class neighborhoods originally and not having gentrified a jot over the decades.  The idea was to spend 24 hours in the area with a few dollars in your pocket, to get some "shock" notion of what poverty was like for the working poor.  It wasn't meant to make them live the life of a poor person; just to give them some experience of it, most of them being middle-class students from middle-class suburban lives.

My friend was dropped off a block or so from the house he and his wife lived in, the one my wife and I visited them in one our trip there a few months later.  He turned and walked the other way.  But it gives you an idea what even the best-intentioned notions of "poverty" and "shock" can turn into.

I am reading (Simone Weil's) essays as a part of my Lenten reading...She says that we "...must experience every day, both in the spirit and the flesh, the pains and humiliations of poverty...and further we must do something which is harder than enduring in poverty, we must renounce all compensations: in our contacts with the people around us we must sincerely practice the humility of a naturalized citizen in the country which has received us." 

I keep reminding the young people who come to work with us that they are not naturalized citizens...They are not really poor. We are always foreigners to the poor. So we have to make up for it by "renouncing all compensations..."

Dorothy Day, from The Dorothy Day Book, p. 11. 

I remember reading Nickel and Dimed, especially a passage where Ehrenreich chides her friends who hire housecleaners because they can't be bothered to do the work themselves.  She also discusses working for one company, a nationwide chain, that required its workers to clean floors on their hands and knees, because the visual made the clients think they were getting their money's worth.  I use a steam mop on the tile floor in my kitchen.  It's not the visual of a bucket and a handbrush and me on my 67 year old knees, but it gets the floor much cleaner much faster.

Some of that book has stayed with me.  But the small bits I've read from the pen of Dorothy Day have meant much more to me.  Ehrenreich challenged my experiences of the world, at one time; Dorothy Day challenges my underestanding of my place among everyone else in society everytime I turn to her.

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The Queen Is Dead. Long Live The King.

Yup. I'll just add this, as an example of acquiring wisdom from extraordinary circumstances:
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Think Of It As An Argument For Locking Up Trump

Oddly, the Senator from Arkansas keeps reinforcing my argument:
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This Again?

Some of us are old enough to remember Pat Buchanan and the speech Molly Ivins memorialized as sounding better in the original German. That was after the GOP had embraced the racist Jerry Falwell, and after Ronnie Reagan had announced his first run for the White House in Philadelphia, Mississippi, and after Ronnie ran pledging to spare us all from "Welfare Queens," by which he meant black women with a mythical horde of children borne simply to get a bigger welfare check, which they picked up in Cadillacs because welfare life was so easy. It was also after all the Dixiecrats had abandoned the Democrats for the GOP (as LBJ predicted when he signed the Civil Rights Act). And there was the prominent House member whose name escapes me (and my Google-fu is too weak), who was shown to have close connections to the racist Conservative Citizens Council (that's the right name if memory serves), who was never denounced by the GOP for his racist associations. Yeah, Buchanan came in the middle of the GOP embrace of all things now denounced as "Trumpian."

As he put it, "Trump never found a way to escape the antisocial demons that haunt him. But here’s what turned a personal tragedy into a national calamity: He imprinted his moral pathologies, his will-to-power ethic, on the Republican Party."

Pointing out that the Republican Party he joined stood for law and order and moral values, the columnist claimed the current iteration has thrown it away because of their "... fealty to Trump despite his ceaseless lying and dehumanizing rhetoric, his misogyny and appeals to racism, his bullying and conspiracy theories."

I can't help but notice that the "Great Upset" here is that Trump's racism is now blatant in the party: 

And yet the "upset" is about what's being done to white people like Peter Wehner.

Trump didn't do anything except bring the GOP to its apotheosis.  What does Wehner think the Tea Party was, anyway?  A bunch of Bill Buckley patriots who wanted to lower the taxes on their trust funds?  Wehner complains Trump has led the GOP to commit "moral transgressions."  None of those apparently involve how we treat the poor, or how we (the whites with the power) treat non-whites will far less power. And his comments come as the GOP is about to face a reckoning, a nationwide, grass-roots rejection of the extremist party and politics the GOP has become and espoused.  So at bottom Wehner concern seems to be his loss of power, not really any concern with Trump's "pathologies" as they relate to women (abortion/healthcare), the poor (healthcare, housing, jobs), racism, or his totalitarian tendencies which, while they get great attention on Twitter (hint: the entire country is not on Twitter) and among the glitterati, really aren't getting any traction in the polling place or in the courtrooms (Judge Cannon is the exception that proves the rule, and even her ruling will not prompt the revolution every perfervid devotee of violence thinks their use of deadly force will spark.  Her little attempt to save Trump from prosecution will be snuffed out like a candle and forgotten in six months time.)

The GOP was the party of morality anyway?  What, because W. added an adjective to "conservatism," and then showed his compassion by flying over New Orleans after Katrina?  He was the most incompetent administrator we've had in that office since Herbert Hoover, until Trump came along.  Trump didn't bring anything new to the party; he just brought more of it, which is what the party now clamors for.

Do you forget so soon that Newt Gingrich proposed making kids in public schools work as janitors because they need to earn their education?
How far is that from this?  MTG can't be bothered to help, but she can rejoice at children laboring, while she looks on semi-benevolently.

Fortunately, the rest of the country doesn't clamor for this, or for Trump.  And that's what has Peter Wehner the most concerned; that the GOP goes the way of the Whigs.

It could happen.  The natural state of American politics, after all, is to have the Democratic party; and some party providing the loyal opposition.  It just may not be the GOP is that party for much longer.

So it goes.
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Wednesday, September 07, 2022

Reading Comprehension

Which statement by Michelle Obama is political? Both? Neither.

Explain your answer in complete sentences and at least 5 paragraphs. Use both sides of the paper, if necessary.

You have 2 hours. Begin now.
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Well, He's Not Wrong

 Chris Truax points out the fundamental and glaring problems with the court's order, and argues both that Trump was treated "fairer" than any other defendant would be (like a pro se defendant, IMHLO) and that the DOJ should appeal this crapload.  But he concludes here, which is not far off base at all:

On balance, Judge Cannon’s order granting Trump a special master is probably a good thing. If you’re a guilty defendant, the very worst judge you can get is the one who goes out of his or her way to make sure that you get all the due process you are entitled to—and then some. An excess of fairness makes a conviction that much harder to overturn on appeal.

I'll pause here to point out appeals don't prevail because the defendant was cheated of his/her liberty (i.e., they lost to the prosecution). They succeed because the court committed errors in the conduct of the trial, errors that were unfair to the defendant.  So "an excess of fairness" makes the verdict damned near bulletproof; which is not what a criminal defendant wants. 


And something like this rule also holds for the court of public opinion. If Trump is going to be prosecuted, it is imperative for all sorts of reasons that he be given every opportunity to defend himself. His hardcore supporters will complain about anything short of canonization, much less a criminal prosecution. But there is a critical segment of people who might not follow the detailed twists and turns of Donald Trump’s brushes with the law but want to know that he is being treated fairly.

So let Donald Trump have his special master. If the Mar-a-Lago raid results in a conviction for Trump, it won’t be because the government relied on letters from his lawyer or documents covered by “executive privilege.” It will be because Trump looted official government records and kept a stack of top secret documents in his basement.

There's winning in the court of law, and winning in the court of public opinion.  On this matter, especially, the victory needs to take place in both courts; and it can. 

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Question At The Next Press Secretary Appearance:

"If there is a Trump portrait, is President Biden going to say the same things about Trump that he said about Obama?"

Fair and balanced, ya know.

(In case you missed it:
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Remember That Line From "Men In Black"?

About getting the "real news" from the tabloids? I'm starting to feel like that was more than satire.
Really the issue, isn't it?  Not "were they classified/de-classified," or was there a "storage problem," or was the search carried out properly, but:  why were those documents there?  There is, as others have pointed out, no innocent explanation.  Were they bound for Trump's "Library" at "45 Wine and Whiskey"?  He had 18 months of discussions over them, and held onto them for dear life. 

Why?

(And speaking of a "perfect physical specimen.")*


*I'm almost sympathetic there.  I am still well above the weight I should be carrying, but for years, despite mirrors, I convinced myself I wasn't that bad.  Then I saw pictures of myself from my daughter's wedding, and my first thought was:  "Who is that FAT guy?"  I haven't exactly starved myself since, or lost so much weight I could be in a dramatic "Before/After" weight-loss ad.  But I no longer feel like the bloated toad in those pictures. I'm just sympathetic to the idea that, somewhere after 65, you get comfortable in your "pudginess" (as I thought of it).  OTOH, I've never considered myself a "perfect physical specimen."  That Trump is much fatter than he thinks he is, I understand.  That he thinks he's a physical marvel is, frankly, disturbing.  But then, so much of Trump is disturbing.)
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Son Of Son of Hobby Lobby

Edited. Yes, now it makes more sense. Dobbs wasn't the worst thing the Roberts court ever did. Bad as it was, Hobby Lobby is producing far more ripples in the pond.
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Yeah, How'd That Work Out?

"...for Trumpers, the law is whatever Trump says it is." 

Which is why he won the 2020 election after all? Why none of the rioters at the Capitol are in jail? Why Trump is not the subject of at least 4 investigations, and Steve Bannon is facing jail time for contempt of Congress and has already surrendered on a charge of criminal fraud in New York? 

Been more than a few defendants to crimes on Jan 6 who claimed they were "sovereign citizens" not subject to the jurisdiction, much less authority, of the court. Where are they now? Most of them are in jail, serving time for their crimes.

I really don't understand the point of nonsensical statements like this.  Might as well say Trumpers think the law of gravity has been suspended by Trump's divine fiat.

Remember the story of King Canute?  He wasn't the one who said he could stop the tides from coming in; his followers said it.  The real moral of the story is that the fools have always been with us, and always will be.

Maybe we should quit trying to be afraid of this brave new world which is neither brave nor all that new.

Boom?  Berlansky is shooting blanks.
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I've Gotta Say 🐾

I've known people like this all my life.  When Walter Cronkite was the ruling god of American news and every household in America was a CBS or NBC or ABC news household, we all agreed MLK was a troublemaker and the Vietnam War was good because the government said so (and when Uncle Walter turned against it, we turned against Uncle Walter) and eventually that Ronald Reagan would save us from commies and welfare queens (black women in drop-top Cadillacs picking up their check in a car driven by their pimp, with 13+ squalling kids in the backseat).  And we knew he would because he went to Philadelphia, Mississippi, just to tell us so.

The "echo chamber" can be, and has been, and still is (actually) large and nationwide.  In the final analysis we the people are responsible for this small one becoming so seemingly prominent.  "I cain't vote for Hillary and Trump cain't win and "they" ain't gimme nobody to vote for!, so I won't vote and we'll still be fine!" was the sentiment in 2016.  We've been living with the fallout of that that ever since.

Which I really think is the reason so many prominent people on Twitter are screaming that Trump should have been buried under the jail yesterday for what we the people (not the DOJ) have discovered he did yesterday!

Guilty dog really does bark loudest. 🐕 
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He Didn’t De-Classify Them?

Not only did the FBI steal my Passports in the FBI Raid and Break-In of my home, Mar-a-Lago, but it has just been learned through court filings that they also improperly took my complete and highly confidential medical file and history, with all the bells and whistles," Trump began.
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In My Childhood…

... I could have told you who the news anchor was for CBS without thinking about it: Walter Cronkite. Or the guy after him(Dan Rather). I almost remember the guy after Rather…no, can’t do it.

Today? No clue.

Outside of Washington insiders and wannabe insiders, who reads Politico? It’s about as influential on national politics as CPAC, which was once treated as influential, then as a joke, then as almost-influential. It’s still just a joke. Charlie Pierce used to kick Politico around ruthlessly. Even he realized it was kicking an empty bag.

CNN? Again, who’s watching that except old people and Twitterheads who mine it for videos for fun and profit? I don’t miss paying for it. I still get the (few) interesting bits for free. 

I’m not sure who’s “normalizing” fascism. I’m pretty sure who’s trying to normalize fear. I think that’s working equally well.
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Reputational Harms

I get the joke, and the devil’s advocate posture. But: Change the facts, change the outcome. The problem extends quite a bit beyond our secrets, too. Won’t somebody think of the reputational harm to the ex-President?
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Tuesday, September 06, 2022

Special Mastery

I’m suddenly inclined to take this concern more seriously.
A document describing a foreign government’s military defenses, including its nuclear capabilities, was found by FBI agents who searched former president Donald Trump’s Mar-a-Lago residence and private club last month, according to people familiar with the matter, underscoring concerns among U.S. intelligence officials about classified material stashed in the Florida property," the newspaper reported. "Some of the seized documents detail top-secret U.S. operations so closely guarded that many senior national security officials are kept in the dark about them. Only the president, some members of his Cabinet or a near-Cabinet-level official could authorize other government officials to know details of these special-access programs, according to people familiar with the search, who spoke on the condition of anonymity to describe sensitive details of an ongoing investigation." 
The newspaper reported the need-to-know information is beyond top-secret clearance. 
Trump claimed "nuclear weapons issue is a hoax" and suggested the FBI may have planted evidence during an Aug. 12 post on his Trump Social website. 
"Records that deal with such programs are kept under lock and key, almost always in a secure compartmented information facility, with a designated control officer to keep careful tabs on their location," The Post reported. "But such documents were stored at Mar-a-Lago, with uncertain security, more than 18 months after Trump left the White House."

If I understand correctly, these will be above TS/SCI status. ‘Course, I’m still trying to figure out what ep Trump has in government documents he has no right to.

That court opinion is really, really bad. I’m no longer sure the judge knew what she was doing, or what she was dealing with. I’m also inclined to think the DOJ is going to appeal just to keep this from causing any problems down the line.

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Is There A Reason We Haven’t Seen This Woman In Court?

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Bill Barr Knows Trump Is Toast

Pompeo is still Trump curious: Barr is just trying to salvage his reputation for his twilight years. Pompeo wants to run for office.

Trump is a stain on both of them. I don’t think it washes out.
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Fun With Legal Twitter

Not just for the weasel words, but for the complete disregard for precedent.

Cohen provides a pretty good review of U.S. v. Nixon, where the Supreme Court established (prior to the PRA) Presidential interest in executive privilege after leaving office, and found...well, here, read it yourself:
and a bit more: Oh, and the Nixon tapes case: That all puts that first tweet in context. You see, here's the problem: It's a grossly incompetent opinion. But what to do about it? Appellate courts review and rule from a record, which means facts, not just legal motions. An appeal at this point would be interlocutory, which means both extraordinary and harder to pull off, because, among other problems, there is no record. So: strategery: The linchpin here is a statement that the records are necessary to conduct a criminal investigation, from somebody actually conducting that investigation. Because the alternative is to weigh in on when the FPOTUS has an executive privilege claim, and the Supreme Court has yet to draw a bright line around that issue. Whether it actually works like this or not is another matter. There are matters of civil procedure (rules) that aren't addressed here, and those matter mightily. But then, so does Orin Kerr's analysis of case law: (I'll skip his other citations): I know Popehat has opined (in a tweet, nothing much more than that) on this "injunction," saying it doesn't stop all that much. But a civil court order blocking a criminal investigation seems like a usurpation of executive authority to me.

And I close with Barbara McQuade, because I just gotta drop this in somewhere:
I'm guessing this "stigma" attaches more to prominent white men than to non-prominent non-whites, especially if they aren't men? Aside, of course, from the stigma of illegally possessing government documents and refusing to return them for 18 months, and then announcing yourself you were the subject of a federal search warrant. But I close with McQuade's pithy observation on what to do next: An appeal could lock this bit up in court for over a year, and if the appellate court supports the injunction until a final determination (probably by the trial court, and by "supports" I mean freezes the status quo the trial court has created until the appellate court decides), that's not helping.

So much depends on how the DOJ interprets this ruling, as it is reportedly through investigating these documents, except as to how they impact national security; and almost everyone agrees this order doesn't impact that investigation. As for protecting the institution, well: it's one court order from one district court. As I've said before, those have almost nil precedential value. Sure, a lot of defendants are gonna try it, too. But a lotta defendants are probably gonna be disappointed, as well as help establish what an outlier this opinion is.

So, we'll see....
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Monday, September 05, 2022

I’m Really Sorry I Didn’t See This Earlier

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In Better Labor Day News

Five Thirty Eight:*

But more than the impact of any one legislative action, it is likely the steady stream of news that has helped Biden the most. The administration is finally ticking items off a long to-do list, helping to counter the narrative that the White House wasn’t getting much done. 

That said, both Morning Consult and Gallup found that Biden’s approval went up not just with Democrats but also with independents. In the Gallup poll, Biden’s approval jumped 9 points with independents since July.

This is likely because there is more at play than legislative victories. Namely, inflation seems to be cooling, which could hint at a more basic reason for why Biden’s disapproval has declined: Gas prices have steadily tumbled since hitting their peak in June. On top of that, the job market remains strong. Americans’ worry about the economy also seems to be easing some. The Quinnipiac poll found that Americans’ approval of Biden’s handling of the economy had changed the most of any issue surveyed, jumping to 37 percent from 28 percent in July. 

It’s possible, too, that the overall political environment is just better than expected for Democrats. Since the Supreme Court overturned the constitutional right to abortion in June, Democrats have outperformed expectations in special elections. They’ve also improved their standing in the generic ballot, which asks voters which party they’d support in the race for Congress, signaling that 2022 could be an unusual midterm election. (Historically, the president’s party usually struggles in the midterms.) In some ways, then, Biden’s approval rating is a lagging indicator of the change in fortune Democrats were already experiencing.

In the meantime, former President Donald Trump continues to dominate the news after the FBI searched his home in Florida for classified information he kept there in violation of the Presidential Records Act, which requires presidents to turn over any written materials related to their official duties. Information continues to pour out about the sensitive documents found there. It’s unclear how much this episode will help or hurt Trump, but polls do show that most Americans are aware of this news and think it’s a problem. During his 2020 campaign, Biden promised a return to normalcy after Trump’s tumultuous tenure, so it’s not unreasonable to think that the news from Mar-a-Lago might remind some voters why they chose Biden in the first place. 

But, of course, the midterms are still two months away, and Biden still has two more years in his first term. Given the volatility of the past month in his approval rating, there’s still plenty of time for it to go down once more. Then again, maybe Biden is, at long last, on the rebound.

The true "conservatives" are political pundits and prognosticators, creatures mired in the recent history they actually know (i.e., experienced).  The past 30 years have seen an aberration of mid-term elections going against the party in the White House.  But the preponderence of American history runs the other way.  So where is the true "weight of history" in the upcoming midterms?  If the Democrats prevail and keep both Houses of Congress, is that a repudiation of history?  Or a return to normal history?

And as for the election being in "two months," when, O when, are the political "experts" going to finally realize that early voting means voting begins in four to six weeks, not 8 months.   And yes, a lot can happen in even six weeks, but the glidepath is pretty well set by falling inflation, falling gas prices, rising employment and Biden's legislative record ("what have you done for me lately?").  Meanwhile the GOP doesn't know whether to shit or go blind.  Trump's appearance for Mastriano had the latter talking about 9/11 (!) and still insisting 2020 was rigged (does he agree Trump should get a do over?).  All Trump talks about is grievance (his), and there are clear signs that show is closing on the road.  Besides, the elephant in the room is Dobbs, and how pissed people are at losing a constitutional right, not to mention how much it endangers the healthcare of average women who don't seek an abortion for convenience, but rather to save their lives or no leave them seriously wounded, perhaps unable to bear children again.

These are not small issues.  But they aren't "historical," in that they haven't been happening over and over again for, well, 30 years.  Often enough for the average analyst to think them the norm, rather than the anomaly.  Trump shattered the norms; the Supreme Court followed suit.  Could it be the piper will finally demand payment from everyone who danced to his tune?  Norms being shattered, after all, inevitably have consequences; and consequences are usually, especially in electoral politics, visited upon the parties responsible. I mean, Trump keeps reminding people why they voted him out of office in the first place.  His followers think they got cheated because they didn't get their way.  Nothing in the system gives a wet snap for their delicate fee-fees, and the people most loudly championing Trump's nonsense are failing in their campaigns.

Well, like the President said:  everyone is entitled to be an idiot.  They just aren't entitled to get their own way, or win elections, or be in charge of the country.

*The best part of that article is the title question:  "What's Driving Biden's Approval Ratings Up?"  It's a question that, typically, is never answered.  With no answer, they can't be held to any conclusions anytime in the future, and so can stay in the prognostication game.  The Romans supposedly used chicken entrails.  We look down on them because we use "scientific methods."  Which can never be proven right, nor wrong.  If they are wrong, pundits and pollsters insist polls are always a matter of interpretation, not prognostication.  If they are right, no need to explain anything.  It's science!

Or divination.  The difference is one of form, not substance.
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