"The central doctrine of Christianity, then, is not that God is a bastard. It is, in the words of the late Dominican theologian Herbert McCabe, that if you don’t love you’re dead, and if you do, they’ll kill you."--Terry Eagleton

"It is impossible for me to say in my book one word about all that music has meant in my life. How then can I hope to be understood?--Ludwig Wittgenstein

“The opposite of poverty is not wealth; the opposite of poverty is justice."--Bryan Stevenson

Thursday, April 25, 2019

Life is not a TeeVee Show

Let's see:  18 hours ago (Google tells me), WaPo published this headline:

The article says Cummings is scheduling a vote on the matter for the committee (House Oversight).  

I guess they should do that in 24 hours, so we have something to talk about on Twitter tomorrow morning?  You know, "political" Twitter where a handful of people think they are the whole world?

I remember those people from Clinton days, where the fora were places like "Table Talk" at Salon.  Then bloggers arose, and Obama treated them to a day at the White House, and suddenly DailyKos was going to rule the world!

Whatever happened to that?

Got to say I'm more and more in favor of impeachment hearings, with counsel (not Representatives who are lawyers) leading the questioning, much as was done in Watergate.  It wasn't always riveting viewing, but it underscored the seriousness of the matters in question.

Three or four committees trying to pick the carcass of the Trump administration and firing off subpoenas from all quarters and grandstanding for C-SPAN (because the majors won't cover that circus; not for long, if at all) sounds like ruination to me.  The House should move on that; but they don't have to do it by the end of the week.

Deliberation and determination go a long way to making it look like a legitimate effort, rather than a partisan political one.  Although pursuing impeachment per se, should not be the goal (IIRC, Watergate hearings began as a Congressional investigation, and slowly moved toward impeachment based on evidence uncovered.)  To cite Rick Wilson approvingly this time:

There's no reason not to use the Watergate model again.  What began as "What fresh hell is this?" ended with "This cannot stand!"

And then the GOP Senators pushed Nixon out of the window.

If the House goes straight to impeachment hearings, a la the Gingrich Congress, and McConnell calls their bluff by holding the trial, it will be Clinton redux, or even the recall of Scott Walker, a failed effort that left Walker invisible and bulletproof; and re-elected.

So, deliberation and determination are the course to follow.

On the other hand, not everything is about the Mueller report:

So there are going to be a lot of contempt of Congress motions to consider.


You see, there were good people on both sides in WWII.  But immigration issues?  Only good people on 1 side.

Everybody knows that.

More Songs about Courts and Laws

Told ya so.  (Although please to note Congress can only enforce subpoenas by going to court.  So there's no rapid response team to this, no sending out the Sergeant-at-Arms or some such.  The Capitol Police don't enforce subpoenas.  Viz:

Either house of Congress can vote to hold in contempt a witness who refuses to provide testimony or produce requested documents pursuant to a congressionally authorized subpoena. As set out in 2 U.S.C. § 194, the U.S. attorney for the District of Columbia has the “duty [] to bring the matter before the grand jury for its action.” Contempt of Congress, which is a federal misdemeanor, is punishable by a maximum $100,000 fine and a maximum one-year sentence in federal prison. But if the executive branch is not inclined to prosecute a contemnor (the contemnor is a person or entity who is guilty of contempt before a judicial or legislative body), Congress will have a difficult time implementing such a penalty.  Congress can also file a lawsuit asking a judge to order the witness to provide the information, raising the additional possibility of imprisonment for contempt of court.

Sorry.  You want to see just how slow this can go, read the article about Obama's assertion of executive privilege, that took 42 months to resolve against him.  By then Congress had changed and was no longer interested.  OTOH, Trump has waived executive privilege for everything Congress is looking for right now.  Still, the courts won't move all that fast, which is why hearings should begin and get this stuff before the public,. That is what Trump fears most.)

"The Dogs! Go back to the dogs!"

We don't have a President.  We have a fucking half-assed failed celebrity who thinks he's a toastmaster.

Morning Fun With Twitter

Well, that and the record of the conversation comes from the wholly invalid report which wholly exonerates Trump. From testimony given under oath; something Trump's lawyers knew better than to let him do. Meanwhile, back on the campaign trail:

Obviously part of a conspiracy by the DNC and disgruntled Hillary supporters, right?

And if you think I'm kidding:
20 candidates means there's gonna be a lot of this.

Wednesday, April 24, 2019

History Doesn't Repeat Itself; But It Does Rhyme

All the more reason to follow Elizabeth DeVega's advice.

The Problem with Conspiracies (and Theories)

If we're going to talk about conspiracy theories, we have to talk about "Othello" (although there's something odd about a discussion of conspiracy theories in the U.S. that never mentions anything newer than "Pizzagate."  Q Anon, anyone?  Or is that the conspiracy, to ignore the conspiracy elephant in the room?!).

Iago is, for my money, Shakespeare's greatest villain, because he is Shakespeare's purest villain.  In his monologue (he is speaking to Roderigo, it's not a soliloquy) in Act 1, Iago brings his self-description down to as pure a distillation as he can:  "I am not what I am."  It's the negation of the voice of God to Moses from the burning bush, and it identifies Iago with the Father of Lies.  But it also identifies Iago's greatest threat, to Othello and to established order:  he is not to be trusted.  Period.

Think of the Elizabethan age, where Catholics are suddenly enemies to the crown (Stephen Greenblatt's biography of Shakespeare conjectures that Shakespeare pere was RC, and had to hide it to keep his minor functionary government position; and to keep his head).  Elizabeth is best on all sides with challenges to her authority, over the nation, the church, matters of national security, etc.  The theaters were shut down because they were gathering places where people might conspire; Marlowe died, some think, because he was a spy for the Crown (whether this is historically accurate is irrelevant; the era was rife with suspicion).  Many people were "disappeared" before we learned the term from the Spanish language; and they reappeared as heads sans bodies on London bridge.  You weren't tried but you were convicted.  The British learned a great deal from the Romans (their legal system still echoes Rome's, despite the common law jurisprudence; and "Circus" still designates roundabouts, not entertainments); one lesson they deeply learned was how to maintain the Pax Romana.  The brutal rule that crucified Jesus of Nazareth taught the British monarchs how to maintain their power, too.

But the other side of that system is trust:  if no one could be trusted, if the entire system was made up of Iagos, each looking out only for their own interests, each telling you what you wanted to hear or, more importantly, what they wanted you to hear, the social as well as governmental order of society would collapse.  Iago represents that extreme:  he lies to Roderigo, the better to use him for Iago's schemes (Iago stabs Roderigo to death in Act 5); he lies to Othello, to Cassio, to Desdemona, to his own wife.  Nothing Iago says can be relied on, and Iago counts on that.  He destroys the lives of Othello and Desdemona, almost destroy's Cassio's life (and almost takes it, through Roderigo), murders Roderigo and his own wife to protect himself, and nearly undoes the Duke's rule in Cyprus into the bargain.  He promotes what we might call a conspiracy theory, that Cassio is sleeping with Desdemona to cuckold Othello, with details that are as realistic as Q Anon or Pizzagate (where the famous basement of the pizza parlor doesn't exist).  As Iago spins Othello tighter and tighter into frenzy, he convinces his commander that Cassio is naked with Desdemona every moment Othello is apart from both of them.  It is a physical impossibility, as the action of the play in Cyprus, from Act 2 to Act 5, takes place in 48 hours or a little more; there aren't enough nights for all the love play Iago describes, much less enough opportunity.  It's pure fabulism but poor Othello, who "loved not wisely but too well" accepts it all as gospel.  And Iago, if he could, would snatch Desdemona for himself, and bring down the government in Cyprus to achieve his ends.  If he were left standing as he plans, the sole survivor of the military hierarchy for the Duke in Cyprus, the mind reels at what chaos he would engender.

Iago's power is lies; but the power of his lies is the distrust he sows with them.  Shakespeare's theme is plain.  It's a theme he plays out in Hamlet, MacBeth, Lear, even "A Midsummer Night's Dream":  there is a right ordering of society, an ordering based on authority (the king must accept responsibility for his crown and rule; the authority of the king is not challenged lightly, if at all; even wives must accept the authority of their husbands (Oberon and Titania), but all relationships:  between ruler and ruled, between parents and children, between friends and lovers, husbands and wives, are based on trust.  Without trust, even the simplest personal relationship are impossible.  Without trust, the entire social order sways and threatens collapse.

Iago's power never spreads so far because he is isolated on Cyprus (as are Othello and Desdemona and Cassio and Roderigo), but also because he is not isolated; he is ultimately a tiny minority in the body politic of the Duchy of Venice.  Emissaries from Venice expose Iago, and while Othello takes responsibility for his actions, Iago is to be held responsible for his.  By the same token, conspiracy theories may seem to run rampant today, but how many people are truly inspired to go to the pizza parlor and demand access to a basement that isn't there?  How many people are going to rise up and make the predictions of "Q" (I still say the name comes from "ST:NG", not the security clearance levels of the DOE) come true?  How many more than that are going to give up on "Q" altogether, as reports said some were after Mueller's report didn't lead to mass arrests Q has been promising?

The problem with conspiracy theories is their destructive nature, but that nature is not necessarily criminal; and, as the Mueller report should have made clear, criminal is not the sine qua non of behavior standards.  Conspiracy theories destroy simple bonds of trust, of reliance, of faith, that we much have in each other.  I have never carried a gun or even owned one, because I don't care for hunting, on the one hand; and because I don't think my fellow citizens, whatever their socio-economic status, are slathering beasts waiting to beat and rob and rape me the moment they know I carry no more dangerous a weapon than a Swiss Army knife.  I trust them to be as civilized as I am, and in that trust I have not lost faith, yet.  Conspiracy theories whisper to us to lose that trust.

Fortunately, even in the worst of times, even with the POTUS promoting them, ideas of conspiracies afoot seldom find that many adherents.  The example of the Holocaust is the exception, that proves the rule.  Especially the rule about how much of the world, v. the minority that champion them, hate conspiracy theories, and will denounce the worst of them into the ages.

Just Say "No"

The context is a speech that's supposed to be about the crisis of opioid addiction.

Follow the tweet back to the thread. It sure seems like Trump is a little puzzled he's not getting spontaneous chants of "Lock her up!  Lock her up!"  The best part is probably when he starts talking about dogs, and there's some polite applause, so he keeps talking about dogs.

He knows how to play to his audience; kinda; sorta.

This, too, can be explained

Turns out Obama has 106 million followers on Twitter.  Trump only has 60 million.  All you need to know, really.

“Well, the subpoena is ridiculous,” he said. “We have been the most transparent president and administration in the history of our country, by far,” he added.

“We just went through the Mueller witch hunt where you had really 18 angry democrats that hate President Trump. They hate him with a passion. They were contributors in many cases to Hillary Clinton. Hate him with a passion.”

“I say it’s enough…. We’re fighting all the subpoenas.”

Why is Trump speaking of himself in the third person?  Because he can't stand the thought of being "hated with a passion"?

Grandpa's got the phone again!

Wait, wut?
So, which is it?*
Shouldn't you update that slogan, too?  It's been 2 years now.
But the substance of the call, that part's true?
“The president called up the friend of our show Bob Costa overnight on an unrelated topic,” Jackson said, “and Bob smartly asked him about all of these subpoenas that House Democrats are issuing against the Trump administration, and the president made the argument to the Post, ‘Hey, I cooperated plenty with Robert Mueller, what do I have to cooperate with Congress for?”
Though I'm guessing people who agree with the idea of "ARMED SOLDIERS" at the Border (who can't legally use those arms) also think this is a necessary piece of interior decoration.

And oh, once again:  fantasy land.

It was unclear what incident Mr. Trump was referring to when he said Mexican soldiers "pulled guns." But Newsweek reported last week, citing an serious incident report, that members of the Mexican military briefly held two U.S. Army soldiers at gunpoint earlier this month, believing the soldiers had crossed into Mexican territory. CBS News has not confirmed the alleged encounter. 

Every word, including "and" and "the"....

Which sent me looking to AOC's Twitter feed, to see if she'd responded to Trump.  There I found this:
It really is a matter of who your enemies are, sometimes.

Yeah, it really doesn't work that way....

So, here's a good general analysis of the Constitutional provisions for impeachment of a sitting President; although actually, the thrust of the analysis is on removal, not impeachment.

First:  grounds for impeachment.
... the operative legal standard to apply to an impeachment of a sitting President is "treason, bribery, or other high crimes and misdemeanors." There is substantial difference of opinion over the interpretation of these words.
The interpretations run broadly into four categories.   First is the idea that Congress alone can decide what a "high crime and misdemeanor" is.  Legal scholars don't like this, because it means the President serves at the pleasure of Congress.  I have to point out, though, the history of Bush v. Gore, where the Supreme Court entered into a political issue (who won the count in Florida?) and put their thumb on the scales.  They clearly thought this was a one-off opinion (they declared it to be so), and just as clearly thought they were doing everybody a favor.  The public reaction to that opinion led the Court to not do something so bold or paternalistic again.  There is a history of the Court finding out it has gotten too far away from public opinion.  Reversing a removal of a President from office because the Court's majority doesn't like the way the House framed the Articles of Impeachment would probably be a bridge too far for many observers, and represent a Constitutional crisis on its own (and call into question the legitimacy of the Judiciary).  So while the analysis is dismissive of this interpretation because legal scholars find it discomfiting, I wouldn't discard it quite so readily.

The second category is that the President must have committed an indictable crime (a point made, obliquely, by Kellyanne Conway this morning; this White House is scared to death of the prospect of impeachment).  But the word "misdemeanor," say others, means an indictable crime is not required.  This argument centers on the debates over the language of this article.  "Corruption" was rejected, as was "maladministration," and finally "misdemeanors" was approved, although that was not a term of criminal law at the time.

The fourth category is that the offense must relate to official Presidential duties.

All of these, of course, go solely to the question of impeachment.  But the issue becomes reviewable (at least the analysis seems to agree), when (and only when) the trial in the Senate results in removal.

There are a few subtle issues, here.  First, it seems to be agreed that judicial review is not available for impeachment, only for removal from office following impeachment.  However, the rules by which the House and Senate conduct the removal process (impeachment and trial, respectively), are well within the power of each house to establish.  That seems pretty clear from the language of Art. 1, Sec. 3:

"The Senate shall have the sole Power to try all Impeachments..."

I also want to add here that:

The House of Representatives shall chuse their Speaker and other Officers;and shall have the sole Power of Impeachment.
Art. 1, Sec. 2, U.S. Constitution.  Which seems to pretty much give the House the power to impeach on whatever grounds they choose, and in whatever manner they decide upon (just as the House alone can pick its "Speaker and other Officers.")  Can the Court disagree with the House's definition of "high crimes and misdemeanors"?  That would certainly interfere with the "sole power", wouldn't it?  (The analysis of possible judicial review based on Nixon, below, goes only to the obligation of the Senate to "try all Impeachments," rather than take an extraordinary step to vote for removal without any trial.  This indicates the Court would be very reluctant to interfere with any process that fits the broad outlines of Art. 1.)

That's often read as preventing judicial review of such a trial; but it clearly limits any possible judicial review to outcome, not process.  If the Senate has sole power to try impeachments, it has sole power to determine how to try impeachments, and the Courts have no final authority to review that process; only to, as below, be sure some process (v. no process) is followed.

Which makes the question of judicial review of an impeachment trial even thornier.  As I said, the Court has found itself ahead of (or behind) public opinion before, and is usually careful to circumscribe its role in political fights, especially.  The Court may side with the Administration in the Census question fight; whether it will enter into a fight between Congress and the President over how to build the border wall, is another matter (the Court certainly won't decide how Congress appropriates money, or not, for such issues).  Pay attention to the language here, dicta in the case before the Court, but part of the paucity of case law on Presidential impeachments (since no President has ever been removed from office):

"Finally, as applied to the special case of the President, the majority's argument merely points out that, were the Senate to convict the President without any kind of trial, a Constitutional crisis might well result. It hardly follows that the Court ought to refrain from upholding the Constitution in all impeachment cases. Nor does it follow that, in cases of Presidential impeachment, the Justices ought to abandon their constitutional responsibilities because the Senate has precipitated a crisis."
The argument there posits an extreme case:  removal from Presidential office without a trial.  The Senate may have sole power to try impeachments, but the argument would be the Senate must have a trial.  Being a political act, an impeachment trial would have to be perceived as fair and in accordance with at least rough notions of due process.  But could the Court review the trial procedure for compliance with Federal Rules of Procedure?  Or could it merely step into a Constitutional crisis caused by slighting the Constitution as much as possible, as in disposing of the effort of a Senate trial altogether?  The argument there turns on the Senate precipitating a crisis, not on a crisis being precipitated solely by removal of a sitting President.

That was Justice White; here is Justice Souter, in the same case:

"If the Senate were to act in a manner seriously threatening the integrity of its results...judicial interference might well be appropriate." Walter Nixon v. United States, 506 U.S. at 253.

Again, both opinions assume a worst case scenario, a case in which the Court has to preserve the integrity of the Constitution because Congress (the Senate) has flagrantly undermined that integrity.  And both depend on the actions of the Senate to prompt a judicial review.  The actions of the House, the very grounds for impeachment, are not covered by either of these arguments.

Which puts us back at the question of what constitutes "high crimes and misdemeanors."  Alan Dershowitz tried to argue the Supreme Court could intervene at what is, essentially, the indictment phase of the process; but that isn't done even in criminal cases.  If the indictment leads to an acquittal, it is proof the indictment was flawed.  If the indictment leads to a conviction, the indictment can still be challenged on appeal, and the grounds for the indictment nullified for all future similar cases.  But I can't think of a way an indictment can be challenged on appeal, any more than a denial of a motion for summary judgment (basically a dismissal) can be appealed before the final judgment is entered.  Interlocutory appeals (appeals before final judgment) are both rare and rarely granted.  The clear impetus of the analysis at FindLaw is that impeachment must result in removal from office (i.e., a final judgment) before the Court could review the impeachment, if it could review the impeachment.  And the Court seems to have understood it could not interfere in that process absent compelling Constitutional grounds, i.e., the failure of the Senate to conduct any trial at all.  It's doubtful the Court would even review the propriety of the trial (especially if the Chief Justice agreed to the conduct of it by overseeing it*), so it would seem the grounds for judicial review, even if possible, are very narrow and specific indeed.

Trump says he'll go to the Court if the House even "tries to impeach."  That's not going to work out the way he thinks it will.

*The CJ's involvement in the trial would probably also prompt a recusal, bringing the matter before a court that could rule 4-4, and so not decide at all.

And this is how you thank your hosts in advance

...for inviting you to a state visit.

What Action Movie Do These Idiots Live In?

This is an actual piece of furniture that you can actually purchase.  I'm trying to imagine the guy who thinks he needs to be able to grab a gun from the bookshelf on the wall so he can blaze away, two-fisted, at the bad guys who have....walked in through the front door?

So, the scenario is this?  The bloodthirsty cut-throats have battered down your door, or worse yet!  Slipped in the back door no one locks because it's a "nice neighborhood."  You've gotten up from the couch, and as they approach you nonchalantly put down your beer and say "There's a book on this shelf I think you'll want to see."  Then a quick push of the RFID remote control (don't grab the car alarm in your pocket by mistake!), the guns drop down, and in one swift motion you are armed to the teeth and BLAM!  BLAM!  BLAM BLAM!!!  Two smoking barrels and two, three....hell, why not four?  armed bad guys are dead meat who never saw it comin'.

Right?  Just like in the movies.....

How disappointed he must be that will never happen.....

Legal Skollars At Wurk

I don't know how the 5 Supremes are going to manage to avoid the Administrative Procedure Act (questions at oral argument seldom echo in the opinions, so I don't put much stock in that.  I don't read chicken entrails for a living, either.) and let Trump have his census citizenship question, as all the illuminated punditocracy seem sure they will do.  But on this question of McGahn's testimony to Congress and asserting executive privilege to stop him, that ship has sailed unless Kavanaugh and Gorsuch want to upend privilege law and can get Roberts and Alito to join them (Thomas is a lock for anything so stupid).

Privilege is settled law as one of those "use it or lose it" matters.  When McGahn gave Mueller and The Boys 30 hours of testimony, any privilege (and executive privilege is about the only one I can think of applying) was waived.  Once waived, it's gone.  Horse left barn, barn burned down; no barn to go back to.*

Which is what Rep. Nadler is getting at:

"The Committee has served a valid subpoena to Mr. McGahn. We have asked him to supply documents to the Committee by May 7 and to testify here on May 21. Our request covers the subjects described by Mr. McGahn to the Special Counsel, and described by Special Counsel Mueller to the American public in his report," Nadler said.

"As such, the moment for the White House to assert some privilege to prevent this testimony from being heard has long since passed. I suspect that President Trump and his attorneys know this to be true as a matter of law -- and that this evening's reports, if accurate, represent one more act of obstruction by an Administration desperate to prevent the public from talking about the President's behavior," Nadler said. "The Committee's subpoena stands. I look forward to Mr. McGahn's testimony."
McGahn would face contempt of Congress for refusing the subpoena, not Trump.  McGahn would put his law license on the line for refusing to cooperate with Congress on no grounds other than Trump doesn't want him to.  And I don't think Trump has standing, absent executive privilege grounds (which are gone), to keep a former employee from testifying under subpoena.

So far, the White House wants it to look like they have a leg to stand on:

“He’s not eager to testify. He’s not reluctant. He got a subpoena. It compels him to testify. But there are some countervailing legal reasons that might prevent that,” said one person close to McGahn, who requested anonymity to describe private discussions. “He doesn’t want to be in contempt of Congress nor does he want to be in contempt of his ethical obligations and legal obligations as a former White House official.”

His "ethical obligations and legal obligations" rest on complying with a legitimate subpoena, as well as not raising frivolous claims in federal court, or being party to such claims.  He pretty much waived any reason not to testify to Congress when he testified to Mueller, and most of that testimony is now in the public record.  There's nothing to prevent him from being compelled (by subpoena) to say it again in a public hearing.

Trump may try some delaying bullshit, but sooner or later he's gonna figure out he's challenging people who have lawyers on staff standing by to handle this stuff, and they get paid whether it's this lawsuit or something else.  That game of sue 'em 'till they cry "Uncle!" ain't gonna work when the one you're suing is the Federal Government.

*So the "distinction" Maggie Haberman is talking about is the difference between preserving the privilege, and waiving it.  Trump waived it with respect to McGahn.  It's gone forever, as far as McGahn's concerned.  McGahn is now in private practice.  He doesn't want to put his career at risk over this matter.

STILL not thinking about the "I" word

Okay, who wants to be first to tell him?
The only entity who can define "high crimes and misdemeanors" is Congress. I mean, this is pretty basic stuff.

But that's okay, he's not even thinking about it....

Tuesday, April 23, 2019

He's still NOT worried about impeachment!

Not in the least (and no one tell him Clinton was impeached in a stronger economy than this one).  Oh, and his complaints about Twitter? He got nuthin':
Dialogue!  That's what this country needs more of!  And he's the Dialoguer-in-Chief, right?


Being old enough to remember Trump's claims his "investigators" report on Obama would be released as soon as they got back from Hawaii, I'm hardly surprised.  But we have these (all before 9 a.m. EDT)!

To which this is the best response:
Although this isn't bad, either:

Or adults, for that matter.
Wait for it....
Such confidence!  The confidence of a man whistling past the graveyard!
Everybody remember the complete lack of criticism Bill "It's the economy, stupid" Clinton got because of the booming economy!  Why, he wasn't even impeached, was he?
Yeah, about that:
That Twitter, making it so hard to bots to sign on.
I told you to wait for it:
The penny dropped and he realized he's been in office for over 2 years.  Time to update the slogan, huh?

Ihan Omar REALLY needs to watch what she says

"This Is Fine"

Rudy Giuliani says "Nothing to see here, accepting intelligence from Russia" is fine.

“Americans should be very worried about that language. It means it’s open season to interfere in the American election,” Alksne replied and then dropped a brutal attack on Giuliani’s integrity that left Jackson stunned.

“Whatever was left of Rudy Giuliani’s reputation has now just swirled down the last bit of the drain. That’s just a shocking thing for a law enforcement person to say,” Alksne said. “He had a great reputation as a law enforcement officer, and now he’s just a pathetic excuse for a shill.”

“I don’t know where to go on that piece as you vividly put it,” a wide-eyed Jackson said, as Alksne muttered that Rudy’s spiral was “so depressing.”

“There are those who would say Giuliani is doing what his job is which is get out there and defend his client,” Jackson said, but Alksne cut her off.

“His job is not to be a lawyer, I can tell you that,” she said. “No lawyer would say such a thing.”
From "America's Mayor" to "pathetic excuse for a shill."  Quite a trajectory; and it took some effort to pull it off. 

What To Do Next

Would it have been reasonable to remove Bill Clinton from office for lying about having sexual relations with Monica Lewinsky?  If the GOP had controlled both houses of Congress, and done so, would the country have rewarded them?  Or shrugged?  Or exploded?

Ezra Klein asks a relevant question that makes me consider that historical counterfactual:

Is the case for impeachment really going to be that Trump wanted to fire then-Attorney General Jeff Sessions, but didn’t? That he wanted to fire Mueller, but didn’t? That he fired FBI Director James Comey in 2017? That he asked his staff to do illegal things, but then accepted their judgment when they refused? That being a liar — which has been obvious about Trump since long before the American people elected him — is a high crime and misdemeanor?
Leaving aside the argument Klein goes for, that polling shows Americans don't support impeachment now, this raises a different question for me:  would they later?

It took Mueller 2 years, nearly, to produce a report that is damning in its revelations, but also (here's the real paradox), not all that new to us.  "Us" being the people paying attention to this.  Is the general public devouring Mueller's near 450 pages?  Probably not.  I haven't tried to read it; but I don't need to.  The news tells me it's what I already knew, and knew because of...the news.  True, I didn't know about Eric Prince's trip to the Seychelles, but do I really need to?

Now, two years later, we have the report and a strong public debate about it (even Chuck Todd couldn't believe what Rudy Giuliani was trying to sell on MTP this morning).  The venerable NYT is calling the sitting President a liar, without qualm or hesitation.  But Congressional hearings sufficient to bring this to the public's attention (who are you kidding now?  I remember the Watergate hearings, with a cast of characters I never did keep up with.  And I was in high school with plenty of time to be appalled at Nixon's antics., as well as hope Vietnam would end before I turned 18. Oh, yes, I was motivated.   I'd read Hunter Thompson, I subscribed to "Rolling Stone," I was a liberal and politically aware as any non-college student in America [and the "activist" college students were a minority of the minority of college students in the population.  When Kent State happened, the people killed were all just walking around campus.], and I couldn't keep up with the cast of characters or even all the allegations of wrongdoing.  When it came down to charges of "obstruction of justice" for years I had no clear idea what that was based on. I know Nixon wad guilty; I didn't really know why.) will take a year or more.  Will anyone besides SNL pay more attention to that?  How loudly will it resound in the campaigns for nominations, especially with Warren being the lone voice (now, anyway), calling for impeachment hearings?  If Congress investigates, then decides to begin to impeach, when does that process start?  Next spring?  Just in time for primaries and conventions and the long slog to November?

And the case against Trump is that he couldn't get his staff to do what he wanted them to do?  I think that works pretty damned well in an ad; as grounds for removal from office, it's never gonna happen.

So is the point counting coup?  The Democrats get a scalp on their belt, to match the one Gingrich Republicans had after Clinton?  Are we really that anxious to be copycats?

One possible answer is in Appelbaum’s thoughtful piece, which argues that “impeachment is best regarded as a process, not an outcome. It’s the constitutional mechanism for investigating whether an executive-branch officer is fit to serve.”

Yeah, but who in American politics is that high-minded?  Mitch McConnell?  Jim Jordan?  Devin Nunes?  And does the republic really need to "normalize" the process of impeachment, so that every President is subjected to "the constitutional mechanism for investigating whether or not an executive-branch officer is fit to serve"?  Put a different GOP Speaker in the office for Obama's first term, and what would happen?  Yeah, the republic needs that like it needs another hole in its head.  I don't really think that's what Newt Gingrich was up to, and I don't really think we can guarantee we avoid another Newt Gingrich in the future.

It's all part of looking for a system to save us from ourselves; but no such system exists, or ever will.  As Klein put it:

But then, we’re trapped in a terrible political system. All the options are bad. Justice is never assured, and it’s not even likely.

Justice is not a political solution. If you want justice, indict Trump the moment the next President's hand comes off the Bible. There are 12 investigations out there. We have time.

Yeah, I know; I repeat myself from time to time....

"What, Me Worry?"

Really hoping for a new Easter Bunny suit in 2021.

Easter Monday:

“Are you worried about impeachment, Mr. President?” a reporter shouted.

“Not even a little bit,” the president yelled back.

He's not even thinking about it.

(He retweeted that one to move it to the top of his feed, he liked it so much)

Yeah, he's not thinking about the topic at all!

Out for Popcorn; Back Soon

Yeah, Trump may imagine it's that simple, but it isn't.  As David Cay Johnston said:

“Trump’s complaint goes on to assert that Congress has no power to investigate him for anything he declares to be his conduct as a private citizen. This sounds like what you might hear from a random drunk in a bar,” the author writes. “Accepting Trump’s theory would mean that he can block any inquiry into ‘possible violations of federal law’ by himself. That’s the kind of self-preserving power held by the lawless rulers Trump says he admires—Duterte, Erdogan, Kim, Putin and Xi.”

Johnston points out, “As I’ve long said, Trump has no idea what is in our Constitution. This lawsuit is proof. The reason that his lawyers, who took required courses on our Constitution to qualify for their law degrees, signed on to this is a mystery. Whatever the answer, it is worth considering whether their licenses to practice law should be revoked for ignorance.”

“Trump is saying, in effect, let’s ignore the oversight function of Congress, such as examining whether our constitutional executive, currently Trump, is faithfully executing the duties of his office. He’s not, so of course he wants no oversight,” he continued.

To put that in context, a nice summary of the relevant Supreme Court decision on Congressional subpoenas:

In Eastland v. United States Servicemen’s Fund, a private anti-war organization challenged a congressional subpoena aimed at its bank, claiming that the subpoena violated its First Amendment rights. The Supreme Court held that the subpoena was “immune to judicial interference” under the Constitution’s speech-or-debate clause, because the subpoenaing committee’s actions fell within the “legitimate legislative sphere.”

As the Court noted, the purpose of that clause — which prevents members of Congress from being “questioned in any other place” about their “Speech or Debate in either House” — is to “insure that the legislative function the Constitution allocates to Congress may be performed independently.” And, make no mistake, the legislative function is not confined to debating and passing legislation. The legislative function includes investigation. Here’s the Court in Eastland:

The power to investigate and to do so through compulsory process plainly falls within that definition. This Court has often noted that the power to investigate is inherent in the power to make laws because “[a] legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change.” . . . Issuance of subpoenas such as the one in question here has long been held to be a legitimate use by Congress of its power to investigate.

“Where the legislative body does not itself possess the requisite information — which not infrequently is true — recourse must be had to others who do possess it. Experience has taught that mere requests for such information often are unavailing, and also that information which is volunteered is not always accurate or complete; so some means of compulsion are essential to obtain what is needed.” [Internal citations omitted.]

Moreover, the demand for Trump’s returns clearly pertains to an area where “legislation could be had.” The private business activities of American presidents are subject to congressional regulation (within constitutional limits), and knowledge about those activities is relevant to congressional decision-making. Impeachment, too, is clearly and unequivocally a legislative function. Indeed, it’s exclusively a legislative function.

In short:  the subpoena would have to be especially egregious for the Court to interfere with it.  Hard to see how they would, actually.

So Trump's Treasury Secretary is going to refuse a Congressional request made under applicable law, also.   As you can see from the quoted language above, and the analysis of same, they don't really have a leg to stand on in either case.  It's a delaying tactic, pure and simple; a lawsuit will be filed when the Congress subpoenas the Treasury Secretary, though I'll be curious to see if the DOJ files the suit (who else would?  But why would the DOJ join a suit against Congress?).  How effective a delay it is, is anybody's guess.  Yes, the courts usually grind very slowly, but the suit against the House is asking for a TRO, which means they have to get to court PDQ to prove they are serious.  And a TRO, if issued, requires a hearing on a temporary injunction in a matter of days, a hearing where both parties must be present (TRO's are usually issued ex parte).  Which means in this case it's a Perry Mason-esque setup.

For those of you benighted and ignorant of Raymond Burr's greatest role, Perry almost always wins his client's freedom in the preliminary hearing, where all the prosecution has do to is present enough evidence to have the defendant bound over for trial (a probable cause standard, well below proof beyond a reasonable doubt).  My favorite episode recently is one where Perry is trying a case out of town, and the judge is unaccustomed to his defense tactics.  The judge complains it's the longest preliminary hearing he's ever held, since it goes into another day.  But the Congress, resting almost solely on Eastland, can win its case in the hearing on the preliminary injunction, if the judge doesn't refuse to grant the TRO on Eastland grounds to begin with.  The D.C. Circuit would have to take the appeal, but the Supremes could summarily deny it easily, just in the interest of staying out of this particular dogfight.

Trump has 18 months or more left in office; these suits could end easily within that time frame.

Pass the popcorn.

The problem with "fact-checking"

All the responses to Trump's flubbed tweet about the death toll in Sri Lanka on Easter Sunday pointed to the fact that the population of Sri Lanka is 21.4 million.  Trump initially tweeted a death toll of 138 million (it was, at the time, only 138).  Too many people, you see.

But Trump's claim is typical of Trump:  138 seems hardly enough to worry about.  138 million, now that's a number!  It would also require devastation on the scale of a nuclear war.  A BIG nuclear war.  138 million is roughly 1/3rd of the population of the United States.  You can't kill that many people in a single event without using nuclear weapons, and even then across a large area (no state in the union has that population).  The problem is not Trump's "slip of the tongue," or his tendency to exaggerate because bigger is always better (even in death counts?).  The problem is his complete failure of imagination, which is based on a complete failure of understanding.

To kill 138 million people in even one day would require a massive national effort by at least one nation, if not several exchanging nuclear weapons in retaliatory strikes.  If you don't understand the difference between the destruction of a car bombing in a crowded square, and the annihilation of millions in nuclear blasts, you really don't need to have your finger on the "trigger," literally or figuratively.

It's not an impeachable offense; but it's at least one more reason not to return the man to office in 2020.

Everything Old is News Again

As Josh Marshall pointed out, we knew this already; and so did Trump:  

Trump already knew these things didn’t happen. Sessions didn’t unrecuse. Corey Lewandowski never sent his backchannel messages to Sessions. And of course Robert Mueller was never fired. What I suspect is most angering to Trump, most humiliating is precisely that these narratives show he never did anything about it. He could have fired McGahn and gotten another White House Counsel. He could have fired Mueller himself. (Some people disagree on this. But as a technical legal/constitutional matter, he could have.) More straightforwardly, like Richard Nixon, he could have fired McGahns and Rosensteins until he found someone who would carry out his orders. But he didn’t. (Revealingly, in the one case of a real firing, he had a letter hand-delivered to James Comey at FBI headquarters when he knew Comey was on a trip to California.)

Trump, Marshall concludes, is a coward.  Or a bully, "someone who blusters but is actually surprisingly, paradoxically conflict averse."  Nobody disobeys Trump; but everybody does.

I remember the concerns among historians (as it was long before my day) about Woodrow Wilson's wife running the government while he was incapacitated.  Eventually such concerns led to the 25th Amendment.  Alexander Haig rushed to the microphones when Ronald Reagan was shot to reassure the world that he was in charge, and the world jerked his leash hard.  The idea is, we have only one President at a time, and he alone has the authority and the responsibility of the office.

What these reports are telling us is that we have no President, and no one is in charge.

I remember a story I read in a science-fiction anthology, almost 50 years ago now.  A corporate employee, a "company man" as he'd have been called then, arrives at work one day to find a not summoning him to the top floor.  The rest of the story deals with his journey through the maze of the building and the levels of bureaucracy to finally be admitted to the route to the top.  When he gets there, he finds nothing:  a vast, empty space that obviously has not been occupied for sometime, with windows looking out on, not a verdant parkland, but a wasteland.  He has anxiously anticipated the summons, feared the powerful men he would meet there, wondered why he was chosen for such a singular honor, and when he arrived:  nothing, at all.  No one in charge; no one even there.

More and more that story seems like a prophecy, a chilling metaphor that has gone from fantasy to reality.  And here is the question:  if Trump's staff are regularly ignoring Trump, who is the President?  Who is in charge?*

That, too, is a potent question of accountability, and the people with the final authority on that question are not in Congress.

*of course, staff have no obligation to carry out illegal orders.  That's why people like McGahn didn't "save" Trump from obstructing justice; they saved themselves from being charged with obstruction of justice.  But if a President cannot issue legal directives, and if the staff has to regularly ignore his directives to keep themselves from facing criminal trial, then the top floor is unoccupied, and no one is in charge.

Behold the Power of the Internet!

Congress is in recess, yet it's Easter Monday morning (as I write) and why hasn't Trump been impeached?!  Lawyers spend years in law school, and years more in private practice just learning how to be competent in the courtroom, and yet non-lawyers are experts on criminal law and constitutional law and understand the legal underpinnings of the Mueller report better than the lawyers and law enforcement agents who wrote it to.  (or, if you're Glenn Greenwald, you understand it without obviously having read a word of it!).

Everyone else is sheeple but me and thee, and I'm not so sure about thee!

I understand the frustration prompted by the DOJ regulation that a sitting President cannot be indicted, but to allow a President to be indicted and found guilty after a criminal trial sets up an interesting conflict:  he's still the President.  Not that we haven't elected convicted felons to public office before, we've just never had a sitting President who is also a convicted felon in the White House.  Now would begin the proceedings to impeach, I suppose.  Except how long would it take to get a President into court?  What barriers to prosecution could the President erect?  Trump is already suing to block access to his business records, on no firmer ground than that Democrats are “singularly obsessed with finding something they can use to damage the President politically,”  that's not exactly invoking national security, is all I'm sayin'.  It's an argument that shouldn't last long in the courts, but will certainly take time to get to the Supremes, even if they summarily reject it.  You think a criminal prosecution is going to move faster?*

Say it moves as quickly as the OJ Simpson trial (I can find dates for it, that's all).  The murder occurred on June 12, 1994.  The jury was sworn in on November 9, 1994.  Trial began January 24, 1995, the verdict announced October 3, 1995.  So, what, 16 months from crime to verdict?  How long would it take, first, to find a venue "fair" to the President (D.C. is not exactly GOP country), and to empanel a jury unfamiliar enough with the facts of the case to be considered fair and impartial?  And then the trial begins, when?  Let's follow the OJ timeline and guess it would begin 7 months after the crime, or in this case, the release of the Mueller report.  Okay, now we're into November, 2019.  How long can the criminal trial proceed?  Who runs the government while the President is sitting in the dock?  Does he sit in the dock?  Why?  Why not?    Maybe the President should resign, but what if he's not inclined to?  Can the trial reasonably take 9 months?  What is in the interests of justice?  What is fair to the prosecution, the defense, and the nation?

So, sometime in August 2020, about the time of the national political conventions, we have the end of the trial.  And a verdict?  What if that comes in September?  Does Congress move immediately to impeach?  Does anybody see that happening?  And in all this time, does government effectively grind to a halt for the proceedings?  Or does the President issue vetoes, and sign legislation, and travel to foreign countries, and respond to national emergencies, visit disaster areas, attend state dinners, attend meetings of international importance, while he is on trial for felony offenses?

And that timeline is predicated on the notion the President doesn't raise a Constitutional challenge to the proceedings, on the simple grounds that impeachment is the only proper remedy for a President who has committed "high crimes and misdemeanors."  So this timeline is wildly optimistic.

Precisely how does this benefit the country?  Isn't that why we're doing this?  For the good of the country?  Or because we despise the current POTUS?

I despise Donald Trump.  I want to see him out of office instanter.  But is he a permanent disaster for the democratic republic?  Depends; is this a government of men, or of laws?  Law is a blunt instrument, and not always the swift, sure sword of justice Hollywood and TV have told us it is (I watch Perry Mason reruns daily, now.  I'm amused at how simplistic and simpleminded it is about the justice system, and what "justice" is.)  If we are just a government of men, then William Barr has won, and the supremacy of the executive is assured.  Except if we are just a government of men, William Barr (who himself should be impeached immediately, on grounds obvious to anyone who's been watching the news for even five minutes) will be replaced within 24 months, and his ideas, which have never become law, will pass away with his tenure.

Or they won't; it's really up to us.  It's a government of laws, but it's operated by human beings.  How it functions, what "traditions" we uphold and adhere to, is really up to us.  We elect clowns on a local level and, every four years, elect one altogether as a nation on the national level.  It really is a representative government; and that's the problem.

It can also be the solution.  But it's pretty much the only solution we have.  Well, that and the courts, as the Mueller report recognized:**

On the very first page of the report’s second volume, Mueller provided an answer. He wrote, “while the OLC opinion concludes that a sitting president may not be prosecuted, it recognizes that a president does not have immunity after he leaves office.” He repeated this again in a footnote at the end of the report that it would “serve the usual purposes of the criminal law” to prosecute a president after he has left office.
That footnote is getting even more attention.  It's a fair argument, because impeachment is a political act, and no President has ever been removed from office by it (Nixon resigned so Ford could pardon him.).  And it won't happen now, either.  High-minded arguments about "accountability" are just so much eyewash, IMNSHO.  And indictment without a trial, or where the trial is a foregone conclusion (i.e., the prosecution loses) reflects on the accountability of the system and the prosecution, not the defendant.

*aside from the problems of the political questions, which should not be raised in any criminal prosecution.  That subject is very well examined here, and I leave that discussion to that article.

**which is why I agree with Norm Ornstein's proposal to hold hearings in Congress, especially because the iceberg of this situation is the counter-intelligence probe Mueller conducted, and that Congress REALLY needs to see.

As John Avlon noted on CNN today:

The Mueller report is also notably silent, Avlon argues, on the “Trump-Moscow money trail” and whether Trump’s business dealings have left him open to being compromised by Russian intelligence.
That way lies accountability, not in the courts, but at the ballot box.  And after the November results, the courts; one does not preclude the other.

Post-Easter Jollies

I am just wrong enough to think this is hilarious (besides, Easter Eggs are not liturgical).

Peeps Sales Hit New Record!

Kind of missing the point....
And "content" doesn't seem to mean what he thinks it means.

A few choice responses from Twitter seem in order:

The Morning After the Morning After

I decided to leave (most) political comments alone until at least today.  Some of the following posts  are a few days old (stale bread), but I've held them for delivery until today.  I release them in no particular order and for no particular reason, except to get the clutter cleared up backstage.  I cannot say they are as worthwhile as even a Cadbury Egg, but it's Eastertide and while I feel I should do better, I know that I can't.