Thursday, August 31, 2017

Tragedy as a disaster area

Forgive me, I'm going to get a bit pictorial on you.

Houston has two "reservoirs", both built in the 1930's out well beyond the limits of Houston at that time.  I know the area where I live was farmland then; to the west of me (not far) are the grain silos and railroad tracks that took the produce from this land to market.  The storage silos now stand as storage for boats and large vehicles; they are too massive to tear down.  They are the last remnant of what was a thriving farm community (it was that community which built the church I came here to serve almost 20 years ago now, a church then 150 years old.).  Still further west are the two reservoirs.  As this article says, they were built to control flooding in Houston through Buffalo Bayou.  The reservoirs were built to store water and then release it, in a controlled fashion, into Buffalo Bayou.  I can only assume, at the time, that they released over farmland and prairie.

This is the area immediately around this reservoirs today:

That's the area being flooded by the "controlled release" from the reservoirs, a release that, if it isn't done, will see the dams overtopped and even more water flowing out, seeking the bayou and heading south of I-10 (one of the reservoirs is adjacent to the east-west interstate highway that bisects this city north and south).

This is what the spillway looks like that is releasing that water:

That's not what it looks like now, but what it looks like ordinarily.  Now, everything you see below the dam in this picture:

Is covered in water, so that you can only identify the spillway by the turbulence in the water as it is released.  Everything in the immediate vicinity of that spillway looks like the picture above.  There are tall buildings there (office?  Aparments?), parking lots, strip centers, gas stations, the usual accoutrement of suburban life along roadways.  It is all under water.  The outflow looks like this:

Behind the reservoir is underwater, too, because these reservoirs have a dam on only three sides, not four.  Water is meant to stretch behind them, and behind both of them there are houses.  Not immediately behind, but close enough they are flooded now.  The buildings you see in the top picture are obviously flooded, but the water rushing out of the reservoirs and flooding that landscape is making its way to Buffalo Bayou, a watercourse that snakes its way through some of the most expensive residential real estate in the county; through neighborhoods where energy executives (read: oil) and wealthy doctors and lawyers and other professionals, live.  All changed, changed utterly, for the ceremony of innocence through wealth is drowned; literally.  From a helicopter you can barely identify the course of the bayou, because you can't distinguish it from the surrounding landscape: all is covered in water.  The water is slowly making its way down the bayou to downtown Houston, which is flooded anyway, and now will be flooded again.  Waters are receding in most of the areas of Houston drenched by Harvey; they are still rising in the areas downstream of these reservoirs.

As the article says, it may be a month before those waters are gone.

Harris County (the county that contains Houston, except for the parts that have spread into other counties) has an agency called Harris County Flood Control District.  It's an obvious oxymoron at this point.  HCFD doesn't control floods; it creates them.  Nature did some of this to us; we did the rest ourselves.

I stumbled across this, looking for pictures of the current flooding.  It's a list of the top 10 civil engineering achievements in Houston.  These reservoirs are #1.  Seriously:

Both the Addicks and Barker reservoirs help to prevent downstream flooding of the Buffalo Bayou which ultimately prevents flooding in the City of Houston. The Addicks reservoir is located in between Barker Cypress and the Sam Houston Tollway just north of Interstate 10, and covers approximately 26,000 acres. The Barker reservoir is located just to the south of Interstate 10 and west of Highway 6 and covers approx. 320 acres. Prior to the construction of these reservoirs in the late 1930’s, flooding was a serious problem within the City of Houston.
These reservoirs may have contained the flooding, but neighborhoods that were dry before the release, are 4-6 feet deep in water now.  The downstream flooding wasn't prevented, merely postponed; some will say, created.

The kind of thinking that praises the reservoirs as gifts of engineering, sadly, predominates in Houston.  The Greeks called it hubris, and Aristotle said it was the main engine of tragedy.  Whether we in Houston take responsibility for our actions, as a tragic hero does, or whether we shift the blame, as a coward does, remains to be seen.

President say 'Little fat man, idn't it a shame?"

Presidential trips to disaster areas are all about appearance.   Who can deny it?

So when POTUS and FLOTUS left the White House to fly to Texas, he in khakis and suede shoes, her in stilettos and a silk bomber jacket, it raised eyebrows:

Not that everyone agreed with the criticism of the FLOTUS, but again, appearances are important in these matters.

And so we get this:

"Witnessing first hand" turned out to look like this:

“He met with a number of state and local officials who are eating, sleeping, breathing the Harvey disaster,” White House press secretary Sarah Huckabee Sanders told reporters in a press gaggle Wednesday.

“He talked extensively with the governor, who certainly is right in the midst of every bit of this, as well as the mayors from several of the local towns that were hit hardest. And detailed briefing information throughout the day yesterday talking to a lot of the people on the ground — that certainly is a firsthand account,” she said.
When we all know, this is what "first hand" looks like:

Still not an image we are likely to see again soon.

Wednesday, August 30, 2017

So, here's the thing....

Oh, that guy!

On Monday, millionaire pastor Joel Osteen taught more Americans via his actions than he’ll ever do in a sermon. At least initially, Osteen refused to open the doors of his Houston megachurch to people displaced by Tropical Storm Harvey. Even though he eventually reversed himself and defended his conduct in evasive media interviews, Osteen’s message was clear: Don’t count on religious leaders to do what’s right.
But, here's the thing:

Houston Christians did more than pray from the dry refuge of their homes or evacuation spots. Clergymen were featured in a couple viral news reports from Sunday: a preacher who checked submerged cars for trapped drivers, and a priest who tried to paddle his way to Mass at Houston’s Catholic Charismatic Center.

Several churches located on higher ground served as temporary shelters or meeting points for evacuees. Members with clear routes shuttled friends or dropped off supplies.

“Right now we are getting supplies together to take to a few area shelters. Baby stuff seems to be in short supply,” said Jason Crandall, pastor of CityView Church in Pearland, a southern suburb. 
The 24/7 press coverage on local TV I'm watching obsessively (it's on practically 24/7 at Casa Adventus) runs a continual crawl of churches open as shelters for those displaced by flood waters.  And mosques in Houston opened their doors almost immediately, and kept them open. 

You see, the thing about "religious leaders" is they tend to be people anointed by the media as "leaders."  Osteen leads his church, and nothing more.  Robert Jeffress leads his church, and serves on the President's evangelical council, and nothing more.  The true "religious leaders" are pastors and priests serving congregations and putting the concept of "pastoral care" into practice through their actions and the lives of their congregations.

As my wife pointed out today, Joel Osteen doesn't provide any kind of ministry at all.  He just preaches about money.*

*I can't pass up the chance to republish Matt Taibbi's assessment of Osteen, from back when McCain was running against Obama:

Of all the vile, fake, lying-ass, money-grubbing shyster scumbags on the face of this planet, there is perhaps none more loathsome than Osteen, a human haircut with plastic baseball-size teeth who has made a fortune selling the appalling only-in-America idea that terrestrial greed is actually a form of Christian devotion. "God wants us to prosper financially, to have plenty of money, to fulfill the destiny He has laid out for us," Osteen once wrote. This is the revolting, snake-oil-selling dickhead that John McCain actually chose to pimp as number one on his list of inspirational authors. So much for "go, sell everything you have and give to the poor," and all that other hippie crap from the New Testament.

Yeah; I still pretty much see him that way.  As Salon points out,

Generally speaking, he only mentions the name of his alleged savior around Easter, never around Christmas. In fact, within the past three years, he has mentioned “Jesus” or “Christ” only 14 times amid hundreds of tweets. 

I pretty much don't have any use for him, and "religious leader"?  It is to laugh.  Honestly; before this, when was the last time you heard anything about Osteen?

Adding:  This is what Christians and their leaders are doing.

Meanwhile, back at the bench...

This, by the way, is interesting:

U.S. District Court Judge Susan Bolton canceled former Sheriff Joe Arpaio's upcoming sentencing hearing for his criminal contempt-of-court conviction, telling attorneys not to file replies to motions that were pending before his recent presidential pardon.

However, Bolton on Tuesday stopped short of throwing out the conviction based solely on Arpaio's request. Instead she ordered Arpaio and the U.S. Department of Justice, which is prosecuting the case, to file briefs on why she should or shouldn't grant Arpaio's request.

Arpaio's attorneys asked Bolton on Monday to vacate Arpaio's conviction in light of President Donald Trump's Friday pardon.

Bolton has scheduled oral arguments on the matter for Oct. 4, the day before Arpaio was supposed to be sentenced.

There is case law that says a pardon implies an admission of guilt, and that will have to be argued in open court.

I'm not interested in the question of admitting guilt, although Arpaio might be.  I'm interested in the question of the validity of the pardon, which may be the legal issue the judge is interested in:

Goldman told The Arizona Republic Arpaio will appeal if the judge does not vacate all decisions in the case.

“We don’t know if the court will,” he said. "And if they don’t, we’ll be appealing, but hopefully this will just put this to rest.” 

I've seen judges raise legal issues counsel had not briefed, argued, or considered.  It strikes me the court is not anxious to treat this the way we treated bankruptcy stays back when I was a law clerk.  Bankruptcy filing immediately suspends all civil actions in which the bankrupt party is involved, as the interests of that party come under the jurisdiction of the bankruptcy judge.  This quickly went from "What the hell?", because nobody had ever heard of it, to "bankruptcy" being all you needed to tell the clerk (never mind the judge).

It's interesting the court is not satisfied that it has to dismiss this action altogether.  It will be even more interesting if the court has something in mind.  Arpaio may not end up happy that his counsel wanted to fight this further.

Other people are wondering about this pardon, too:

There will be few if any leaks from the Supreme Court. But one must wonder what messages the justices are getting from Trump’s extraordinary pardon. Though its major import is Trump’s official endorsement of racist discrimination in law enforcement, a flagrant contempt for judges and courts is the subtext. The issue in the Arpaio case was the very integrity of the federal judiciary. He was not convicted of an ordinary crime, but of deliberately disobeying a federal court order and lying about that; but beyond that, during the litigation that led to his conviction for criminal contempt, he hired a private detective to investigate the wife of a federal judge hearing a case against his office. Any judge can understand the threat posed by law enforcement personnel who seek to strike back at judges and their families, perhaps for purposes of blackmail or revenge—and the deep arrogance of a president who regards such behavior as praiseworthy.

And there's this, noted at the Washington Post:

Protect Democracy, an activist group seeking to thwart Trump’s violations of legal norms, and a group of lawyers have sent a letter to Raymond N. Hulser and John Dixon Keller of the Public Integrity Section, Criminal Division of the Justice Department, arguing that the pardon goes beyond constitutional limits. In their letter obtained by Right Turn, they argue:

“While the Constitution’s pardon power is broad, it is not unlimited. Like all provisions of the original Constitution of 1787, it is limited by later-enacted amendments, starting with the Bill of Rights. For example, were a president to announce that he planned to pardon all white defendants convicted of a certain crime but not all black defendants, that would conflict with the Fourteenth Amendment’s Equal Protection Clause.

“Similarly, issuance of a pardon that violates the Fifth Amendment’s Due Process Clause is also suspect. Under the Due Process Clause, no one in the United States (citizen or otherwise) may ‘be deprived of life, liberty, or property, without due process of law.’ But for due process and judicial review to function, courts must be able to restrain government officials.

“Due process requires that, when a government official is found by a court to be violating individuals’ constitutional rights, the court can issue effective relief (such as an injunction) ordering the official to cease this unconstitutional conduct. And for an injunction to be effective, there must be a penalty for violation of the injunction—principally, contempt of court.”

What is Judge Bolton up to with this hearing?

Bassin notes, “Judge Bolton may want to see how the honorable lawyers of DOJ’s public integrity section respond personally in open court — themselves as officers of the bar who’ve taken an oath to uphold the Constitution — to the blatant abuse of power by their boss.” He adds, “After all, these are people who’ve dedicated their lives and careers to ensuring our public officials act with integrity and Joe Arpaio and now the President of the United States have spit in the face of that.” Bolton’s hearing will venture into uncharted territory, a voyage necessitated by Trump’s utter disregard for the rule of law and his constitutional obligations to enforce the Constitution and laws of the United States. 
There may be some squirming in court, something Federal judges are especially good at producing.  As The Atlantic asks, what will the Supremes make of this, because Arpaio's lawyer is clearly intent on going there if he doesn't get everything he wants.

Which may be a case of be careful what you ask for.....

Stay Tuned.

The Children's Hour

People are still being rescued in Houston.  Shelters are filling up with displaced, probably homeless, people.  Flood waters are rising across east Texas and into Louisiana.

J.K. Rowling is right:

Anybody who can't see that, I really have no use for.

Tuesday, August 29, 2017

"Get him out of Texas!"

Notice which card is easily readable?

Local TeeVee is, not surprisingly, 24/7 news about Harvey, flooding, road closures, rescues, shelters, press conferences on rising bayous and falling rain and when this will all end.

Mercifully, that's kept them too busy to notice the POTUS came down to Texas:

“Harvey. Sounds like such an innocent name,” Trump said at a briefing in Austin, Texas. “It’s not. It’s not innocent.”

He said “the sad thing” about Harvey, which has a rising death toll, was that it “is longterm.”

“Nobody’s ever seen anything this long and nobody’s seen this much water,” Trump said. “Probably there’s never been anything so expensive in our country’s history.”
Death is short; building repair is long.

As someone at TPM pointed out, nothing in our country's history has been so expensive, except maybe for:

World War I

World War II

The Civil War

The Cold War

Trump's security detail for the past 6 months

I haven't been able to find news articles about what Trump said, not in any detail; so, as ever, I have to rely on the kindness of strangers:

Discussing Trump, host Mike Barnicle  detailed his takeaway from the speech.

“When the president was speaking, he mentioned the water, the wind,” Barnicle pointed out. “He mentioned four of our great congressmen in here — it’s going to be a costly proposition. They’ll come up with the right solutions. There’s never been anything like this in our experience. He thanked Ben Carson, Linda McMahon. Several others. I did not hear him speak about the victims of this flood.”

Victims?  Do they cost money?

Former FBI agent turned MSNBC analyst Clint Watts had an even harsher opinion about Trump, saying the Houston tragedy — like everything to Trump — is all about money when he promised home loans for the victims who are still being inundated and rescued from the floodwaters.

“Everything is not about money,” he bluntly stated. “It is for Trump, but it isn’t for the rest of America.”
I would cue Randy Newman at this point; but it ain't funny anymore.

Regarding Joel and Harvey

I had a run-in with Osteen's church, back before it moved to downtown Houston, and maybe before Joel took over; I can't remember that detail now.  The Houston UCC churches had set up a low-income housing facility many years before I got here, and every year the churches tried to round up Thanksgiving dinners for the residents.  But our churches were getting smaller and more elderly and on more fixed incomes, so donations were not what they used to be, and Lakewood was near enough by it had brought Thanksgiving dinners for a few years.

But the year in question, they decided not to do that.  They told the residents, few of whom had cars, to come to Lakewood to pick up the food.  We found another way to provide Thanksgiving that year, as I recall.

So now comes this contretemps over Lakewood's downtown former basketball arena being open to Harvey victims.  What I know about this I've read on in the internet, but this article seems the best summation of the story.  It does seem Osteen had to be shamed into doing the right thing, and he took his own sweet time and offered up a bevy of excuses for not doing it (and the place still isn't a shelter; or it only will be if they are satisfied no other shelter space is available, so I'm not holding my breath).

And it's worth noting J.J. Watt has already donated $500 million of his own money toward relief for Houston, and is taking donations through his charity that's already established.  Lakewood is collecting clothes, pillows, towels, etc., for distribution.  But I don't think they're distributing the stuff themselves (that would be helpful) and no word on any donations from the Osteen's.  All we've had from them is tweets.

I guess God will make the newly homeless rich, or something.

My daughter's comment on this was that Lakewood is not a church, it's a business.  Spoken like a preacher's kid.  Still, there are businesses, and then there are businesses.

Please note these two furniture stores opened on Sunday, and Lakewood finally opened as a "distribution center" today.

I think this qualifies....

Charlie Pierce wondered if Trump would tie his shoelaces together.  I think he managed to:

“We want to do it better than ever before. We want to be looked at in five years, in 10 years from now, as this is the way to do it,” Trump said during a briefing in Corpus Christi.

He said working with Abbott “and his entire team has been an honor for us.”

“So, governor, again, thank very much. And we won’t say congratulations. We don’t want to do that. We don’t want to congratulate,” Trump said.

“We’ll congratulate each other when it’s all finished, but you have been terrific,” he added, patting Abbott’s hand. “And you’ve been my friend, too.”
Best recovery in history!  Even as the storms move north to find new victims, and the old victims are still trying to get out of flooded neighborhoods.  There are people down here from around the country, having bought boats and brought them here just to rescue strangers.  They'll be needed elsewhere before this is over, and they have nothing to do with FEMA or POTUS.

But hey, the guy who has done bupkis will congratulate himself when it's over.

As Charlie (again!) points out, the real help is coming from Houston itself (not to belittle the people flocking here to help).

He won't be joining Trump in the congratulations.  He's too busy.*

And in case you weren't sure who that strange woman was, she's wearing a cap to tell you.

Not an image we are likely to see this time....


President Coolidge come down in a railway train/little fat man with a note pad in his hand

Really, New York Times?  Is this what you think this deluge is about?

Hurricane Harvey was the rarest of disasters to strike during the Trump presidency — a maelstrom not of Mr. Trump’s making, and one that offers him an opportunity to recapture some of the unifying power of his office he has squandered in recent weeks.

It's nothing more than an opportunity for Trump to finally appear "presidential"?  What, are you the White House PR flack now?  We in Texas are certainly glad we could provide an opportunity for the pooh-bahs on the east coast to seek reassurance about the man behind the Resolute desk.

Yeah, the President thinks it's all about him, too.  He also thinks it's all about water damage:

Mr. Trump, one aide said, was fascinated by the long-term effect of water damage on structures in the Gulf Coast, peppering FEMA and National Security Council briefers with detailed questions about the flooding in Houston and Galveston. As the extent of the projected devastation became apparent over the weekend during a meeting at Camp David, he shook his head in disbelief and compared the situation to problems he experienced when managing his family’s apartment buildings in New York. “Water damage is the worst,” he told one staff member, “tough, tough, tough.”

Maybe if we spray painted his name on buildings he'd be more interested.  Then again, maybe this'll happen:

When reports of flooding in the Mississippi River city hit the news, the Trump campaign immediately dispatched Mr. Pence to tour the affected areas, in part because Hillary Clinton, Mr. Trump’s Democratic rival, forewent a visit of her own. When Kellyanne Conway, then the newly appointed campaign manager, told Mr. Trump that his running mate was en route to Louisiana, he responded by asking aides, “Can I go too?” according to three campaign officials familiar with the exchange.

When Mr. Trump offered to donate thousands of bottles of water to the recovery effort, Ms. Conway made one suggestion, according to a former Trump associate: He had to strip the “Trump Ice” labels off first.

Or somebody could just tell us where Melania got her heels, and those sunglasses.  Disaster chic is the new black!


Remember the "chaos" in the SuperDome during Katrina?  Apparently that's an irresistible meme for flood reporting:

People who escaped rising floodwaters and pouring rain spawned by Harvey arrived at the George R. Brown Convention Center on Monday night by the busload and truckload even as the convention center exceeded its capacity of 5,000. The second night inside the center was louder, more crowded and at times, more chaotic.

Yes, the Convention Center was housing 5000 people, and now it's up to 9000 people, with more coming.  No, there wasn't any "chaos."  Just a lot of wet, tired, hungry people in a small space without enough cots for everyone.  And that 30,000 number of displaced people FEMA keeps tossing around; I expect that's gonna double before we're through, because new areas of Houston alone are flooding hourly, and the storm is moving up the coast towards Louisiana now.  But don't buy into the Mad Max/Hobbesian chaos meme.  This is Katrina times 10, and we still haven't started eating each other.

Houston, we have a problem

"They're trying' to wash us away...."

The problem with Houston is not that the city wasn't evacuated (where would you send 4 million people when the storm is affecting 52 contiguous counties and well into Louisiana as well?), it's that our idea of "flood control" is to build two reservoirs to contain water from flowing down Buffalo Bayou into downtown, and then allowing development (what civil engineers call "impervious cover" because it creates runoff) to be built behind those reservoirs.  This does two things:  make the reservoirs more likely to overflow, and provides more housing from which people must be evacuated as it floods.  Not to mention all the development along the bayou that is forcing water into it, and soon will be flooded because of it and the emptying reservoirs.

But, of course, Sean Hannity now thinks Houston should have been evacuated.  Honestly, who cares what he thinks.  It does give Twitter a chance to school him and others, though:

That last tweet got responses about having a plan and executing it early because you "know" a hurricane is coming.  Those pictures are from several days before Rita made landfall, at what turned out to be Beaumont.  As other have pointed out, you simply can't evacuate a major metropolitan area in an orderly, or quick, manner.  People will not "flee" in an orderly manner, and the roadways simply don't have the carrying capacity.

The problem with Houston is not a lack of an evacuation plan.  The problem with Houston is a complete lack of a flood control plan.  "Vulnerable areas" are turning out to be all over the city.  This entire town is a "low-lying area."  People who know nothing are saying "those areas" should have been evacuated.  Well, that would be 30,000+ people, or more.  Now tell me where 10,000 cars (at least 3 per car, to be fair) go (and do the math for how many cars that is, bumper to bumper, on a four or even 8 lane highway, if you counterflow the traffic).  Louisiana?  Underwater.  San Antonio?  Austin?  Flooded.  Dallas?  Getting rain now, and the storm's going that way.  And shelter for 30,000+ people?  Food?  Clothing?  Diapers? (there's a huge need for diapers at the shelters here).  Baby bottle, baby formula?

The best plan is not evacuation; the best plan is prevention.  I'm not frustrated that people can't be rescued quickly enough (a volunteer boat capsized this morning because 11 people crammed into it.  There isn't a boat big enough to navigate flooded streets that can hold 11 people safely.  9 were eventually recovered, 2 are stuck up a tree and no one can get to them.  This situation is bad.).  I'm frustrated if nothing changes, if Houston doesn't realize it has a problem and takes steps required to fix this before this whole region is labeled "unlivable."

Because that's what the world is seeing now:  this is the third "500 year flood" in 3 years.  Whatever reputation Houston had for "Can Do!" is being washed away by "Can't Plan!" and "Can't Keep You Safe!"

Monday, August 28, 2017

On Second Thought

We're not doing it for you.  And I swear, he's almost trying to take credit for how HUUUGE this storm is.

And please note, while this is much appreciated, it has nothing to do with the Federal government.
Mostly by local police and fire, and local volunteers bringing out their boats.
Stay in D.C.  We have enough stupid down here already.

In Which We Learn

that all of Houston is in a floodplain.

Expect lots of thumb sucking articles about why Houston flooded and who is to blame.  These articles will ignore flooding as far inland as Austin and San Antonio, and the devastation the Cat 4 hurricane wrought on coastal Texas (flooded fields of agricultural crops not the least of it), and the simple fact Texas rises from water's edge to Hill Country mid-state, an area covered for centuries by sea water.  Houston floods because Texas floods because Texas, until you get to Austin or up to Tyler in East Texas, is flat.

That tweet above is about the reservoirs that have to be drained because of record rainfall.  Those reservoirs are huge, but they aren't big enough for the billions of gallons of water which have fallen on Houston.  And yes, Houston has put down too much impervious cover, and yes Houston has been stupid about flood control, and yes, the head of flood control for Harris County (basically Houston) is an idiot:
Of the astonishing frequency of huge floods the city has been getting, he said, “I don't think it's the new normal.” He also criticized scientists and conservationists for being “anti-development.”

“They have an agenda ... their agenda to protect the environment overrides common sense,” he said.
But you don't see this attitude being voted out of office down here because, basically, most people who live here are happy with the way things are; until they get flooded out, that is.  And then they don't vote; they just move.

But much of the discussion of impervious cover talks about the prairies of Katy, west of Houston.  How the hell water that falls on downtown Houston or even my neighborhood, a good 20 miles from downtown Houston and another 20 miles from the Katy prairie, is supposed to fall there and then be transported west to be absorbed by that prairie even without more impervious cover on it, is a mystery to me, a mystery no one writing such articles can explain.  So far as I know water still flows down hill, and it's downhill from Katy all the way to the coast on the east side of that city.

Houston is on a coastal plain, with an average elevation 50 feet above sea level.  The only place more prone to flooding I've ever been is San Antonio, on the flood plain of the San Antonio river.  Houston is too goddmaned big and too goddamned flat and has too much goddamned impervious cover, but whose fault is that?  The Mayor's?  The County Judge's?  Maybe none of us should be here, but then again, maybe nobody should be in New Orleans.

And I really don't think we should ignore the rest of the Texas and Louisiana coast being affected by this storm.  There are more people affected by this than just the residents of Houston.

"First, do no harm."  Some of us in Texas are actually relieved by these pictures.

More flooding is ahead for the Houston region, forecasters warn, and an already dire situation could soon become desperate: An area the size of Connecticut is expected to receive at least another 20 inches of rain through Friday, though the rain is expected to let up intermittently through the week. Officials said that by the time the storm ends, Harvey could dump up to 50 inches of water on some parts of the affected area, which includes 54 counties.

Federal Emergency Management Agency Administrator Brock Long said he anticipates that at least 30,000 people in Texas will be displaced to temporary shelters.

“This is a landmark event for Texas,” Long said. “Texas has never seen an event like this.”

The county of Matagorda, where Hurricane Harvey came ashore, is closed.  A mandatory evacuation was imposed, displacing 16,000 people.  Texas has 254 counties, so this storm is affecting roughly 20% of them.  And then, if predictions hold, it will go back into the Gulf and then head due north to Oklahoma by Friday.  This is far, far more than Houston's problem.

There is an excellent article at Vox about what "100 year flood" means (not what you think it means) and how Houston wasn't prepared for a storm like this.  Then again, the NWS has called this storm unprecedented, and the money quote in the article has little to do with the devastation of Harvey, a hurricane that has yet to properly get near Houston:

In 2016, ProPublica and the Texas Tribune collaborated on a project detailing how bad the damage from an Ike-caliber storm would be — and how little Houston had done to mitigate it. “We’ve done nothing to shore up the coastline, to add resiliency ... to do anything,” Phil Bedient, a Rice University professor who co-directs the Storm Surge Prediction, Education, and Evacuation from Disasters (SSPEED) Center, told ProPublica.
Yes, there are areas where Houston should not have allowed development, but that's the story of Houston.  I know people who lived in dry houses for decades, and then development happened upstream of them, and all that once absorbed water came down to their neighborhoods.  The solution was for the county to buy out those neighborhoods, because in Houston it is development uber alles.  So, yeah, we've got those problems.  But shoring up the shoreline might help the refineries and Galveston Island and places on the coast; but it would have no effect at all on the 50 inch rainfall Houston is rapidly accumulating.  Slate has an article titled "Houston Wasn't Built to Withstand a Storm Like This" (I really would have preferred "Houston, We Have A Problem," but even I'm not using that cliche), which makes me want to ask:  what city is?  50 inches of rain is over four feet.  Who designs for that?  Who can?

Daily Beast Doubles Down on the Stupid

Areal flood warnings have been issued for the Addicks and Barker Reservoirs. Maps below show potential inundation areas for pool elevations
 NWS Houston (@NWSHouston) August 28, 2017

I knew better than to go back for a second look:

The first mandatory evacuations of the Houston area were ordered early Monday morning, four days after it was first clear Hurricane Harvey would drown America’s fourth-largest city.

What is now Tropical Storm Harvey dropped more than two feet of rain on Houston in 24 hours before a brief pause Sunday. The storm is expected to move back into the Gulf of Mexico, recharge, and dump more rain onto Houston by Wednesday. Fifty inches of rain are expected in some areas by the end of the week.

Already the storm has killed six people, rendered thousands homeless, and trapped 7 million people, one-quarter of Texas’ population, in a federally designated disaster area.

Officials in Harris and Fort Bend counties told some residents Monday morning to leave ahead of imminent flooding. The Brazos River southwest of Houston is expected to swell to 60 feet and overtop levees. There are fears the levees may fail, in a repeat of New Orleans after Hurricane Katrina. Meanwhile, people living downstream from reservoirs designed to protect downtown Houston from flooding have been told to prepare for the controlled release of water by the U.S. Army Corps of Engineers to relieve pressure on dams.

When the storm previously known as Hurricane Harvey made landfall Friday, it was the strongest storm to batter the U.S. coast in 13 years and the worst to hit Texas since 1961.

Texas Gov. Greg Abbott told Houston residents that even in the absence of an official evacuation order, “you need to strongly consider evacuating.”

But there was immediate pushback from Houston officials, who said they knew better.

They know better now, too.  They're on the ground here, assholes, and answerable to the people.  Where the fuck are you, and who do you answer to?

These evacuations are specific, for areas that will be affected by releases of water from the Addicks Reservoir, which is a good 10 miles west of me (and I'm 20 miles west of downtown Houston).  I mention the geography because this release will flow into Buffalo Bayou which flows into downtown Houston.  I know people in neighborhoods being affected by this release right now.

The evacuation is calculated and careful.  If they don't release this water, the dams overtop or worse, burst, and create whole new problems of flooding.  An evacuation of the city, as Gov. Abbot once suggested (he's since soft-pedaled that advice) would have put millions onto roads as they flooded out.  But ever anxious to justify itself and click-bait a story, The Daily Beast once again crows they were right and the people in Houston were wrong.


Sunday, August 27, 2017

Dog: Bone

That map shows the reach of Harvey, from the Gulf Coast to San Antonio, from Waco to Corpus Christi.  The storm has changed since that image, but it gives you a good idea just how big this storm was, and still is.

San Antonio was originally the site of recovery efforts and refuge for those fleeing the coast.  It was a state shelter for coastal dwellers, chosen because it was far enough inland to certainly be out of the way of a hurricane.  By Saturday, the hurricane was raining on San Antonio.

Tell me again how Houston could have been evacuated and so spared the displacement of so many people by flood waters.  You can't evacuate just the people who are going to be flooded, or have th greatest potential to be flooded.  It's all or nothing.  This storm is raining down on all the areas covered in green and blue and yellow there.  You'd rather people be in cars for that?  And while the rains have stopped over my house for now, NWS is still forecasting 15-25 more inches of rain by Friday, which will bring the total up to 50 inches on the high end.  And then it moves north, toward Oklahoma; if the models are right.

Sorry; Dog: Bone.  But honestly, second guessing public officials in matters like this is a mug's game.

Dear Daily Beast: Fuck You

The only good thing to come out of that line of cars stretching 250 miles is that no hurricane or rain storm hit it.

No, I am not in a good mood.  And The Daily Beast can suck it:

Houston Mayor Sylvester Turner said on Friday evacuation was not necessary.

"There are a number of people who are in Hurricane Harvey's direct path, and evacuation orders have been given to them. But for the Houston area … this is a rainmaker for us. There's no need for people to be thinking about putting themselves in greater danger."

Harris County Judge Ed Emmett said the safest thing for Houston residents was for them to “stay where you are and ride out the storm. … We don't anticipate any kind of massive evacuation.”

Now it’s too late to leave the city, with almost every roadway in and out closed. Even Sanchez admitted as much on Twitter: “I can keep telling you to stay put, but the reality is YOU CAN'T GET ANYWHERE RIGHT NOW.”
That would be because we still remember the panicked evacuation of the city when Rita bore down on us even as refugees from Katrina were still sheltered in the Astrodome.  Maybe the Daily Beast doesn't remember that, or Rita, which did this to Houston:

Because it never got here; it went to Beaumont instead.

People died in that panicked flight to Dallas.  Interstate 45 was a parking lot for 250 miles.  Had a hurricane hit, or even a 500 year storm, it would have been a disaster of greater proportion than if they'd stayed put.  Even now I'm seeing people on the news saying how they were with friends watching the Mayweather fight last night, and shocked to discover by midnight the streets were flooded and the roads impassable.  One guy even said he thought they'd fixed the drainage problem, so what happened?

You can panic a metro area of 4 million+ people and get them all in their cars as the rain bears down (it reaches from here to Austin, and north to Waco, halfway to Dallas, as well as east almost to New Orleans), or you can tell them to stay home and stay out of high water.  Maybe they "CAN'T GET ANYWHERE RIGHT NOW," but at least they aren't trapped in a line of cars in rising water on the flooded streets which is why "YOU CAN'T GET ANYWHERE RIGHT NOW!"  As I said, the State of Texas can't even get rescue equipment into Houston because of flooded roadways across the state from here to Austin.  WHAT PART OF THE MAGNITUDE OF THIS PROBLEM DO YOU NOT FUCKING UNDERSTAND????!!!!!!??????  Do you think those people would be better off on those roads right now?

Now imagine that road packed with cars trying to flee the rain that was coming.  Had the people of Houston heeded Gov. Abbot's advice on Friday, this road would be filled with submerged cars.

Imagine the shitstorm if those people had been told to run for their lives from the storm that was coming?  Many coastal counties did impose mandatory evacuations, and at least one county is closed to anyone trying to re-enter, until further notice.  But that county has only 16,000 residents.  The local school district here has more students than that, and it's one of the smaller school districts in Houston (there are several in the area, Houston ISD is one of the largest in the country).*

Honestly, the internet makes idiots of everyone, and gives every goober with a grouse a platform to display his ignorance.  And then somebody mistakes that for cleverness.

I'll retire to Bedlam.

*one of the worst problems with the flight from Houston was the people in coastal counties who couldn't get away because panicked Houstonians were blocking all the evacuation routes.  Yeah, let's do that again!

Somebody put a Presidential sock in the Presidential mouth

 This is as "major" as the rescue operations can be right now.

Actually, what a "500 year flood" means is that the chances of such a flood are .2%.  Not that they can only occur once every 500 calendar years.  You'd never know the President has access to the best information on the planet.  Not that it's any use if you won't pay attention to it.

And the Houston area alone may receive as much as 50 inches of rain before what is left of Harvey goes north late next week.  That's equivalent to a year's worth of rain in the wettest areas of this state, in one week.  "Wow" is wholly inadequate.  This is a completely unprecedented storm.   This is more rain than has fallen on Texas in such a short span in recorded history.  "Wow" is a term for children.

No shit, Sherlock.  As for that "all out effort", even the state of Texas can't bring in rescue equipment to Harris County (most of which is Houston).  It simply can't get through the flooded roads.  Local officials are issuing calls to private citizens with flat-bottom boats are "high water vehicles" to please call and volunteer for rescue aid.  Many parts of the area are flooded, and the rains we've already had are expected to be matched in the next few days.

"Going well" my ass.  What a dipshit.

Is he watching FoxNews, or a disaster movie?  Because he's as clueless as Lewandowski.

BTW, the people of Texas are glad to know you can multi-task:

The only longer term impact than the "wall" and NAFTA on Texas will the Harvey.  So I guess it makes sense to keep talking about something you can't do (you admitted as much to the President of Mexico) and something you don't understand (much of the Texas economy runs on NAFTA but, go ahead, blow it up.  How could that be a problem at all?).


Let me just add that everything that can be done, is being done.  This is a good reflection of what's being done and what's going on:

The Coast Guard was overwhelmed with requests for help as it carried out urban search and rescue operations in the greater Houston area on Sunday morning. “Currently there are five MH-65 Dolphin Helicopters conducting rescues,” the Coast Guard said. Officials are urging residents to stay put even if some water has entered their homes, and not to call emergency services unless it's a life or death situation. "911 services at capacity. If u can shelter in place do so, a few inches in your home is not imminent danger. Only call if in imminent danger," the city of Houston tweeted.

But "Major rescue operations," as if this were a disaster movie instead of real life?  What a clueless boob our POTUS is.

I am so sick of this shit

Corey Lewandowski looks out on a post-apocalyptic Hobbesian hell-scape:

“There is just too much chaos,” the former Trump campaign manager advised. “The National Guard is going to be brought in to help bring some law and order back to this as the rain subsides.”

Some areas of Houston have gotten as much as 12" of rain in 12 hours.  I have a TV running constantly, tracking weather conditions.  TV reporters are driving around the metro area reporting on flooding and people fleeing flood conditions, and no one, not the Mayor, not the County Judge, not the Governor, have mentioned bringing in the National Guard.

There is no violence or turmoil or lack of "law and order" anywhere in Houston or on the Texas Gulf Coast.  If there is, I haven't heard about it.  There isn't any because of mandatory evacuations, and because flood waters are still rising.  People aren't looting and running riot; they're trying not to drown, and wondering how to cope with the loss of everything they owned.

We heard this same bullshit during Katrina, when people fled to the SuperDome.  There was no anarchy there, no gang "bosses" setting up fiefdoms, no rape crews, no violence at all.  There were people helping people, and that's all there were.

Corey Lewandowski is an ass.

The rain is still falling, and predictions are for 35+" inches in some areas, with rain continuing until Thursday.  Add that up for the rest of the week, and we may see 5' of rain, or much more, across huge swathes of Texas.  Houston is part of it; Houston is by no means all of it.  This storm has a reach that goes from Brownsville to Lake Charles, Louisiana; from Houston to San Antonio and Austin, 250 miles away, and out into the Gulf to the east.  And it's going to go back to the coast, then up across Houston by late week, pouring water as far east as Mississippi, or probably Alabama.

"Superstorm Sandy" my ass.

“This is Katrina at this point,” co-host Clayton Morris observed. “This is one of the worst natural disasters this country has ever faced. This has the power to perhaps reshape a presidency in some way. It could alter the course of a presidency.”

No disrespect to New Orleans, but the amount of land, measured in square miles, that this storm covers and is dumping water on, is larger than some Eastern states.  This isn't Katrina.  When this is over, Katrina is gonna look like a rained-out Sunday School picnic.

And Corey Lewandowski will still be a clueless ass.  And the National Guard will still not be required.

ADDING:  if you want to see pictures of the parts of Texas needing "law and order," you can find them here.

Lewandowski is a flaming ass.

Saturday, August 26, 2017

The Problem with Random Analyses

A pardon is not a magical legal eraser that says you can never be held responsible for anything you do or say again, ever.

Here is the most logical way to view his pardon of Sheriff Arpaio: it is the latest and gravest step he has taken in his continuing efforts to undermine the rule of law. Obviously Trump delighted in fueling the racism of Arpaio’s supporters by pardoning this convicted criminal –he made that clear earlier this week during his repellent speech in Phoenix. But I am certain that is not the main reason for this heinous act.

Trump pardoned Arpaio because:

a)  Arpaio was a loyal supporter who hasn't given Trump a reason to turn his back on him (remember how Trump wanted to re-hire Michael Flynn?)
b)  Trump sincerely believed he could do it, but then, he thinks he can pardon himself.
c)  Trump was told by advisors not to do it, because of politics; the surest way to make him do it.
d)  Trump has no grand scheme, other than firing Robert Mueller and pardoning everybody, including himself, when the time comes.

For many weeks, Washington has been swirling with rumors that Mueller already has secured the cooperation of Michael Flynn and Paul Manafort in his investigation of the president. And Trump undoubtedly is more vulnerable to the testimony of these two men than he is to that of any other players in this fearful drama. Therefore, Trump must feel compelled to send this message through Arpaio’s pardon: the president is eager and willing to do the same thing for anyone who might be pressured into testifying against him.

The problem with this analysis is simple:  pressuring Flynn and Manafort to testify against Trump with a prosecution deal is the only way to get them to waive their 5th Amendment rights.  If Trump waives those rights by pardoning Flynn and Manafort, then they can't refuse to testify under subpoena  (literally "under penalty"), because they can't incriminate themselves on those crimes.  It doesn't make the case against Trump go away; it doesn't change a thing.  No pardon will remove the risk of a perjury charge, and if Trump tried that, it would make the pardon of Arpaio even more clearly a blow against the rule of law.

And here is another reason why this pardon cannot be allowed to stand:

Contempt is an essential enforcement tool that the judiciary can use to keep investigations from stalling out and to help ensure the progress of justice. Trump is effectively nullifying that tool. By pardoning those who defy court orders, Trump would be able to continually frustrate the investigation and prevent Mueller from uncovering the truth.

The only pardon that impedes the investigation, that nullifies it, is for Trump to pardon himself.  Setting that aside, the logical conclusion is fairly clear:

Trump and Arpaio share many dangerous beliefs, and given power, both men use it to shamelessly silence and impede their opponents. Trump has realized that he can use his pardon power to bypass the lawyers and judges and investigators he so despises. Arpaio was a test run. Now he will know it works.

But the courts are not required to recognize the absolute power of the Presidential pardon.  They have an obligation to the Constitution to see that all parts of the government under that constitution operate as we the people expect them to.  Courts are actually quite restricted in how they can wield their power; and I'm of the opinion, more and more, that the courts have gone overboard in deciding what does, and what does not, merit constitutional review; it's a pandora's box paradox that gave us Brown v. Board (now more honored in the breach than in the keeping) and Heller (which sets up conflicts with provisions of the Bill of Rights).  The courts, however, show due deference to Congress and the Executive; and they must demand some due deference from those branches, and not just in the matter of deciding what the Constitution allows, and what it does not allow.  The courts must have their authority over their orders and rulings, and must not yield it to the executive branch, or they lose all meaning and authority.  If the courts take the stance of that Slate article, or the many who think this pardon is wrong but inviolable, they give up their power to the Executive.  What Trump has done cannot be allowed to work.  The courts cannot waive their authority, and get it back later.

And if Trump tries to pardon himself, he guarantees a Constitutional crisis which will end in his removal from office.  But how could the courts stand against that, if they don't stand against this?  Because ultimately a pardon is directed at the authority of the court; it is a creature of equity, going back to the common law when equity came from the ecclesiastical courts, and could offer mercy the common law could not.  But even equity cannot overturn the rule of law, and become superior to the law.  The President is granted broad power to pardon, but if that power is deemed absolute, the President becomes superior to the law.  And if the courts acquiesce to that power over their authority, they have only themselves to blame for the outcome; and we can only looks to the courts to deny this Presidential claim.

"They're tryin' to wash us away...."

Hurricane Harvey came ashore right across Rockport, Texas.  An early report this morning indicated the Rockport FD was inundated with calls, but couldn't get out to help because the storm was ongoing.  A police station on the coast was shown having the roof ripped off and building demolished by the winds and rain.  They are without power or lines of communication.

Not to say that's Trump's fault, or a sign of the end times.  This is what happens when a Cat. 4 hurricane makes landfall.  But honestly, in light of reality on the ground, Trump's tweets are just insultingly stupid, like he's sitting in some command center somewhere guiding forces against the storm like a general in battle.

Torrential rains are falling on the coast and inland; some areas are expected to get 2-3 FEET of rain.  Nothing you can do for that until it's over, and the clean-up and recovery starts.

BTW:  I saw a lot of conversation on-line about how bad this was going to be for Houston.  Houston is getting some rain from this, and some bayous are overtopping their banks.  This is more because Houston refuses to recognize flooding as a problem or decrease the amount of impervious cover it keeps adding to the sprawling metro area.  The hurricane has not hit here nor dumped torrential rain on us.  It is the people south of Houston, from Victoria to Corpus Christi, and now inland to Laredo, who need our prayers.  I've even seen signs rain is heavier north of Houston and inland, than here.

We'll see how bad it was when the clouds clear and the winds die down.  That's when the work really starts.  But according to predictions, that may not happen until this time next week.  Most models show Harvey turning to a tropical storm and walking up the coast toward Louisiana.  This may well exceed Trump's attention span.

Friday, August 25, 2017

The Square and Stationary Internet

Where everybody has something to be outraged about, and wants to let you know it.

I almost thought about reading this book on fundamentalism.  Then I got to the last paragraph:

My working title [for his next book]  is Liberal Fundamentalism: Why Popular “Progressive Christianity” Is neither Progressive nor Christian. It will be a critique of the Jesus Seminar crowd: Marcus Borg, John Dominic Crossan, John Shelby Spong, etc. They have the same binary thinking found among Christian Right leaders. They took dated ideas from earlier generations of liberal theologians and marketed them (through false advertising) as new and fresh. While they love colored beads, they apparently have little interest in people of color—their project is steeped in white, middle-class privilege, just like their target audience. When this book comes out, I will have two completely different groups of people pissed off at me. Woohoo!

First, I'd rather read Martin Marty's book on fundamentalism, because I suspect the scholarship is better.  Not because I feel called to defend Crossan and Borg (certainly not Spong), but because:  seriously?  It's 2017 (and will be 2018, at least, before that projected book comes out).  Is anybody reading Spong, Borg, or Crossan anymore?  I mean, maybe you have some groundbreaking theology to interpose against their "dated ideas from earlier generations of liberal theologians," but it doesn't sound like it from that.   If you do, why not get on with it?  We could use some new ideas.  But it sounds more like you want to bitch, and they're a soft target (in some ways, they are.)  As for "steeped in white middle class privilege," um, who do you think is going to be reading your new book, or your proposed one?  Not the people Dorothy Day served.  Pointing fingers and blaming others is no way to go through life.

I dunno; just seemed like a glib and gratuitous throwing of stones to me; cursing the darkness rather than lighting a candle.  I mean, what did the Jesus Seminar ever do to him?

The Silent Death of the Judiciary

In part, this shows no one in the White House knows what the hell is going on:

Office of the Press Secretary
August 25, 2017

President Trump Pardons Sheriff Joe Arpaio

Today, President Donald J. Trump granted a Presidential pardon to Joe Arpaio, former Sheriff of Maricopa County, Arizona. Arpaio’s life and career, which began at the age of 18 when he enlisted in the military after the outbreak of the Korean War, exemplify selfless public service. After serving in the Army, Arpaio became a police officer in Washington, D.C. and Las Vegas, NV and later served as a Special Agent for the Drug Enforcement Administration (DEA), formerly the Bureau of Narcotics. After 25 years of admirable service, Arpaio went on to lead the DEA’s branch in Arizona.

In 1992, the problems facing his community pulled Arpaio out of retirement to return to law enforcement. He ran and won a campaign to become Sheriff of Maricopa County. Throughout his time as Sheriff, Arpaio continued his life’s work of protecting the public from the scourges of crime and illegal immigration. Sheriff Joe Arpaio is now eighty-five years old, and after more than fifty years of admirable service to our Nation, he is worthy candidate for a Presidential pardon.

Because yesterday:

White House press secretary Sarah Huckabee Sanders suggested Thursday that if President Trump were to pardon former Arizona Sheriff Joe Arpaio, he’d go through the full Justice Department vetting process — a process that typically takes many months, and even years.

“I would imagine they’d go through the thorough and standard process and when we have an announcement on what that decision is, after that’s completed, we’ll let you know,” she said when at the White House press briefing.

So what now?  Everything depends on whether or not the federal judge wants to defend her contempt order.  Joe Scarborough was right:

“If he does that [pardons Arpaio], he may please three or four white nationalists, but he will further enrage every judge from Maine to Southern California,” Scarborough said.

The question now is:  will the courts let this act trample their power to enforce their own court orders?  Contempt is an offense against the authority of the court, not against the statutory law.  Therein lies the crucial difference, and even a separation of powers issue.  If the President can override a court order, can block the court from enforcing its authority, then how independent is the judiciary?

ADDDING:  for every piece of bad news, there is a small bit of good news.  Not exactly a balance to what I consider a fundamental constitutional battle, but you take what you can get.  Sebastian Gorka has left the White House, whinging all the way:

“[G]iven recent events, it is clear to me that forces that do not support the MAGA promise are – for now – ascendant within the White House,” Gorka’s resignation reads. “As a result, the best and most effective way I can support you, Mr. President, is from outside the People’s House.”
Don't let the doorknob hit ya, Nazi.

Back to the matter at hand:  if you don't believe me, take the word of a Harvard Law Professor (who doesn't exactly agree with me, but who makes a good point):

For Trump to pardon him would be an assault on the federal judiciary, the Constitution and the rule of law itself.


This is the crime that Trump is suggesting he might pardon: willful defiance of a federal judge’s lawful order to enforce the Constitution.

It’s one thing to pardon a criminal out of a sense of mercy or on the belief that he has paid his debt to society.

It’s trickier when the president pardons someone who violated the law in pursuit of governmental policy, the way George H.W. Bush pardoned the Iran-Contra participants, including Oliver North.

But it would be an altogether different matter if Trump pardoned Arpaio for willfully refusing to follow the Constitution and violating the rights of people inside the U.S.

Such a pardon would reflect outright contempt for the judiciary, which convicted Arpaio for his resistance to its authority. Trump has questioned judges’ motives and decisions, but this would be a further, more radical step in his attack on the independent constitutional authority of Article III judges.

An Arpaio pardon would express presidential contempt for the Constitution. Arpaio didn’t just violate a law passed by Congress. His actions defied the Constitution itself, the bedrock of the entire system of government. For Trump to say that this violation is excusable would threaten the very structure on which is right to pardon is based.

Fundamentally, pardoning Arpaio would also undermine the rule of law itself.

The only way the legal system can operate is if law enforcement officials do what the courts tell them. Judges don’t carry guns or enforce their own orders. That’s the job of law enforcement.

In the end, the only legally binding check on law enforcement is the authority of the judiciary to say what the law is -- and be listened to by the cops on the streets.

When a sheriff ignores the courts, he becomes a law unto himself. The courts’ only available recourse is to sanction the sheriff. If the president blocks the courts from making the sheriff follow the law, then the president is breaking the basic structure of the legal order.

From this analysis it follows directly that pardoning Arpaio would be a wrongful act under the Constitution. There would be no immediate constitutional crisis because, legally speaking, Trump has the power to issue the pardon.

But the pardon would trigger a different sort of crisis: a crisis in enforcement of the rule of law.

The Constitution isn’t perfect. It offers only one remedy for a president who abuses the pardon power to break the system itself. That remedy is impeachment.

James Madison noted at the Virginia ratifying convention that abuse of the pardon power could be grounds for impeachment. He was correct then -- and it’s still true now.

I still think the courts have the power to deny the validity of the pardon, just as they would a pardon for civil contempt.  But we'll see if this plays out at all, and how.

Thursday, August 24, 2017

The Constitutional Crisis No One is Noticing

CNN on what Arpaio did to be found in criminal contempt:

"Not only did (Arpaio) abdicate responsibility, he announced to the world and to his subordinates that he was going to continue business as usual no matter who said otherwise," wrote US District Judge Susan Bolton in the July 31 order finding Arpaio guilty of criminal contempt.
Bolton's decision arose from a finding of civil contempt by US District Court Judge G. Murray Snow in the racial-profiling case of Melendres v. Arpaio, first filed in 2007. Beginning in 2011, Snow ordered Arpaio to stop detaining people based simply on a belief that they were in the country illegally, rather than suspicion that a crime has been committed.

Arpaio refused to comply, even though Maricopa County lawyers warned him about the magnitude of Snow's order and advised him not to pick up people unless grounds existed for state charges.

After the first order in 2011, Arpaio told various television reporters that he would "never give in to control by the federal government," that he would not "back down" and "if they don't like what I'm doing get the laws changed in Washington."

Bolton said that Arpaio and others in his department continued to round up people and try to turn them over to federal officials.

In 2013, as the racial profiling lawsuit was being resolved, Snow issued a permanent injunction preventing the sheriff's office from "detaining, holding, or arresting Latino occupants of vehicles in Maricopa County based on a reasonable belief, without more, that such persons were in country without authorization."

The order made clear that the sheriff lacked the authority to try to pursue immigration violations, and that Arpaio and his deputies would be violating the constitutional protections against unreasonable searches and seizures if they held people who were not suspected of committing state crimes.
Arpaio argued that he had authority to try to work with federal agencies to find immigration violations. Without agreeing with the premise, Bolton wrote that even if that were true, once Snow issued his first order in 2011 -- blocking the sheriff from picking up people for whom no criminal charges existed -- Arpaio was on notice that his practices violated Fourth Amendment rights and he had to stop the practice.

None of the warnings mattered to him, Bolton concluded, noting that Arpaio "stated on numerous occasions that he would continue to keep doing what he had been doing."
I freely admit my conclusions on this matter are based on a law review article and a few internet citations  I haven't done a legal brief on this issue, and there's no way of knowing whether the court has started one, or will consider one.  It may be the federal judge considers a Presidential pardon the final word, and release Arpaio from the contempt charge if a pardon is properly presented to the court.  Or it may be the court is fully aware a civil contempt order cannot be pardoned, and set some clerks to researching whether a criminal contempt order can be pardoned, and make a federal case, as the public says, out of it.  Arpaio was found guilty of civil contempt for his actions in 2016, which led to a criminal contempt ruling in July 2017.

Given the nature of the order, the facts, and that courts don't issue criminal contempt orders lightly, especially for contempt that doesn't occur in the courtroom (when you see a lawyer sent to the cells for behavior in the courtroom in a fictional court, that's criminal contempt.), I still expect a fight.  Courts seldom find criminal contempt for behavior not right in the court's presence.  This order is serious, so I'm expecting the court to treat a pardon with a jaundiced eye, not as a get out of jail free card. Vanita Gupta, president of the Leadership Conference on Civil and Human Rights, is quoted by CNN saying the pardon of Arpaio would excuse "racist and illegal policing."

It would also excuse thumbing one's nose at the court, as well as the Constitution.  I'll be more disappointed with the court for letting that happen, than with Trump for issuing the pardon.

Gupta, a former head of the Justice Department's civil rights division in the Obama administration, said in a statement, "If President Trump uses his power to pardon a discredited law enforcement official who persistently engaged in racial profiling of the Latino community, it will not be a dog whistle to the so-called 'alt right' and white supremacists, but a bullhorn."

It would also be a declaration that the Bill of Rights doesn't matter if your politics are aligned with Trump's

UPDATE:  Hmmmm.....

White House press secretary Sarah Huckabee Sanders suggested Thursday that if President Trump were to pardon former Arizona Sheriff Joe Arpaio, he’d go through the full Justice Department vetting process — a process that typically takes many months, and even years.

“I would imagine they’d go through the thorough and standard process and when we have an announcement on what that decision is, after that’s completed, we’ll let you know,” she said when at the White House press briefing.
Once again, we're in a land where anything goes because no one knows.  The same article cites a Huffington post article where a former U.S. Pardon attorney says Trump could just shout his pardon out the window, or publish it on Twitter.  But as any good lawyer knows, what works is what the court accepts; and no lawyer would advise the President to issue a pardon on Twitter.  The courts have seldom been asked to consider the validity of a pardon (U.S. v. Wilson presented the issue in 1833, where Wilson didn't want to accept the pardon.  It was held that if he declined it, he wasn't pardoned for the offense of which he'd been found guilty.).  Going through the standard procedure is what most lawyers do just to be sure they aren't embarrassed by a judge who finds their procedure so irregular she won't approve it, for fear of being found wrong herself.  Why else do you think legal documents said "Know all men/persons by these presents," "whereas," "wherefore,"  and "too whit too whoo" for so long?

All this really tells us is that nobody knows what's going on and Trump couldn't care less.  He's probably forgotten about Arpaio again (who can forget Trump entering the room full of reporters at the White House to sign something, talking to the press, and distractedly walking away again?  When Pence called him back, Trump said something and walked out of the room.  Don't tell me he's deeply involved in this issue.).  At any rate, it's more of a mess than the stories that paperwork is ready and just awaiting Trump's ink:

As a legal matter, White House lawyers believe the contempt charge is reversible because, they say, the federal court order Arpaio ignored -- which served as the basis for the contempt charge -- is unconstitutional. The federal court said in 2016 Arpaio's policy of using traffic stops and workplace raids to find suspected undocumented immigrants constituted racial profiling. He was convicted in July for ignoring a U.S. court order to stop traffic patrols targeting immigrants.

The White House legal team has also advised Trump to wait for sentencing under the belief the sentence could be lenient and not include any jail time for Arpaio. Sentencing is scheduled for Oct. 5.

In response to a report by CNN that the documents for a pardon have already been completed by the White House, the sources vehemently denied any paperwork or supportive talking points have been prepared for an Arpaio pardon. The discussions, the sources said, have been lively, and Trump has been very involved.
The court order being unconstitutional smacks more than a bit of ideology to me.  You imagine there are any non-feverishly ideological White House lawyers right now?  Me, neither.  But I've no doubt the conversations have been lively.  As for Trump's involvement?  Yeah, only if they keep mentioning his name over and over again.