Friday, June 30, 2023

So I Can Still Reserve The Right To Refuse Service *

*A staple of the civil rights movement/pre-Civil Rights Act era. In the movie “Giant,” when Bick Bendict gets the shit kicked out of him by the owner of a diner who refuses to serve his Mexican daughter-in-law, the owner tosses that sign on Benedict as he lies beaten on the floor. The’64 Civil Rights Act slowly made those signs obsolete.

Please note that, thanks to that Act, you can’t refuse to host and/or make a website for a customer based on race. Sexual orientation? Your prejudice is protected by the 1st amendment.

Is this a great country, or what?

(The tweet frames the issue very badly. The question is not: can the government force you to create websites bearing messages you disagree with. The issue is: can the government stand by and allow you to refuse your services in interstate commerce to anyone whose message you don’t like?

(In the cases where the Supremes decided racial covenants that run with the land cannot be enforced, the Court held that the judiciary could not participate in enforcing such covenants because racism is a pernicious evil the courts could not endorse, even if the courts didn’t write the covenants (i.e., were not directly responsible for them).

(Bias against sexual preference has never been recognized as a pernicious evil by the courts. Then again, it took until the 1960’s to recognize racism in law was pernicious (yes, that’s a term of art). Before that? Eh, not so much.

(The state of Colorado was not forcing anyone to provide website services to the public. It simply said: if you do, you can’t discriminate in who you offer your services to. 

(But the Civil Rights Act (‘64) doesn’t protect sexual preference. So the court reached for the First Amendment. Raising the question: if Congress amended the ‘64 CRA, would this Court say: “Well, that’s different!” Or would it say: “First Amendment rules!”

(Because, you know, refusing to build a website and add your proprietary touches to it, is different than: “We don’t serve your kind.” One is free speech, and the other is just…not?

(Yeah, I don’t understand it, either. But now I’m wondering how long it will take to challenge Civil Rights Act precedent as now violations of the first amendment?

(I mean, if the reasoning of that tweet is valid…)

This “Argument” Is Making The Rounds

It took me a moment to realize it was completely wrong.
Long before the Supreme Court took up one of the last remaining cases it will decide this session—the 303 Creative v. Elenis case, concerning a Colorado web designer named Lorie Smith who refuses to make websites for same-sex weddings and seeks an exemption from anti-discrimination laws—there was a couple named Stewart and Mike. According to court filings from the plaintiff, Stewart contacted Smith in September 2016 about his wedding to Mike “early next year.” He wrote that they “would love some design work done for our invites, placenames etc. We might also stretch to a website.” Stewart included his phone number, email address, and the URL of his own website—he was a designer too, the site showed. 
This week, I decided to call Stewart and ask him about his inquiry. 
The Supreme Court is expected to deliver its opinion in a case in which Stewart plays a minor role, a case that could be, as Justice Sonia Sotomayor stated by way of a question at oral argument in December, “the first time in the Court’s history … [that] a commercial business open to the public, serving the public, that it could refuse to serve a customer based on race, sex, religion, or sexual orientation.” (Update: On Friday, the court ruled 6-3 in the web designer’s favor.) It took just a few minutes to reach him. I assumed at least some reporters over the years had contacted him about his website inquiry to 303 Creative—his contact information wasn’t redacted in the filing. But my call, he said, was “the very first time I’ve heard of it.”
A) assuming arguendo this is true, somebody did some very sloppy work at the trial level, and somebody else failed to check the factual basis of the plaintiff’s complaint. [But, as I finally realized, this is not true. But let me continue with my original argument, so you can go where I went.]

I’d say that was on the trial court, but it isn’t. It’s on the parties. I once spent months on a case working to force an individual plaintiff to reveal the other parties he was representing in the suit. You can’t take any material factual claims for granted, as a lawyer representing a client.

Should the Supremes have known this? No. They don’t review and examine the veracity of the facts of a case; they only review the law as applied to the facts in the record. They can’t review the facts for accuracy, or ask if Mr. Stewart actually made the request that gives this case a legitimate controversy. Which, it turns out, it doesn’t have.

B) Courts are not supposed to issue “advisory opinions.” That, they aren’t supposed to rule on whether something is, say, unconstitutional in the abstract. The question only really arises in the concrete, when there are facts to apply.

C) The other curious thing is, the majority opinion makes no reference to Mr. Stewart’s fictional claim in what is a very brief recital of the facts of the case:
Lorie Smith wants to expand her graphic design business, 303 Creative LLC, to include services for couples seeking wedding websites. But Ms. Smith worries that Colorado will use the Colorado Anti-Discrimination Act to compel her—in violation of the First Amendment—to cre- ate websites celebrating marriages she does not endorse. To clarify her rights, Ms. Smith filed a lawsuit seeking an injunction to prevent the State from forcing her to create websites celebrating marriages that defy her belief that marriage should be reserved to unions between one man and one woman.
Sounds like she sought a declaratory judgment, which is a statutory way of getting an advisory opinion from the court. [But plaintiff sought an injunction, not a judgment.]

But none of this is relevant to the Supreme Court’s decision. There is no mention of it in the majority opinion. The New Republic article points out it was the basis for a publicity campaign by the plaintiff after the trial court ruled. The article makes much of this false story rattling around in the court record. It does, but mostly it is important because NR wants to justify being the only journalist to contact Mr. Stewart. He’s a real person, his phone number was accurately in the record. Scoop! news!

No; not really.

The trial court considered the Stewart story, such as it ever was, and dismissed the so-called Stewart claim as unsubstantiated and unimportant. Yes, it remains in the court record; but no, the Supreme Court didn’t rely on it even in dicta. It was dismissed by the trial court; that dismissed it for the Supreme Court. Had the Court relied on it anyway, that would be a serious problem. As it is, there is no “here,” here.

This opinion can be criticized for its reasoning and results. But it can’t be criticized as improvidently granted. Stick to the facts. Making up more convenient ones does not make a sound argument.
I mean, I don’t like this Court either; but the solution is not making up reasons to despise it that aren’t true themselves. The view of history is skewed, yes; but welcome to America. We’ve been skewing history from our beginning “Standing” is a legal argument, and should be fought as one. “Verifiably false claims”? If you mean this case, there is only one verifiably false claim. And I’m pretty sure it’s not the one you mean.

Ein Volk, Ein Race, Ein Color

I suppose if we called legacies "affirmative action" instead, that would make them problematic? Or not, because "white" is not a race?

And under the 14th Amendment, according to the Roberts court, we are all white now.

"Stollen Election"

If we'd elected a German Christmas bread as POTUS, it still would have done a better job than Trump did.

“White” Is Not A Race

Stern: Well, Jackson’s whole argument is that you cannot distinguish the individual’s experience as a person from the individual’s race! The two are intertwined! The chief justice is running headlong into his own racial ignorance, his own inability to understand why a first-generation Black applicant to UNC would view his race and his identity as intertwined, and would view his own life experiences and his racial identity as, in many ways, one in the same. The chief can’t wrap his head around it, which is pathetic, because there have been so many briefs in these cases, so many arguments at the lectern, so many brilliant points in both dissents trying again and again to make the chief just get this. And he just doesn’t.
So if we just declare everyone white, problem solved, right?

My Advice Would Be…

And on the basis of something that never happened; but might! Someday!

I was pretty sure the courts weren’t supposed to issue advisory opinions.

Answers Worth What You Pay For Them

The short retort is: probably. Followed by: if it was that simple, nobody would ever go to trial. But to answer a previous question:
Not sure if you know, but I certainly have been confused about rules/procedures regarding how the separate charges against multiple defendants in a single indictment work. He and Nauta are listed as co-defendants on a few of the obstruction/conspiracy/conceal charges, but Trump is the only one for the willful retention counts and a false statement charge. Can he not be tried just for those, independent of whatever goes on with Nauta, or are they intrinsically linked?
The short answer is: there is no short answer. Hey, it’s the law. Legal reasoning is an arcane process comprised of tradition, precedent constitutional law, statutes, and rules. Which is why there is no short answer.

But I don’t know criminal procedure, so I have to speak in generalities and what I remember from civil practice.

I worked a case as a legal assistant with two defendants. Generally the principle of judicial economy directs as few trials as possible. These two defendants didn’t have any reason to object to one trial. Their exposure arose from the same set of facts, and liability for one wasn’t affected by the liability of the other. Had there been a conflict, a matter where, arguably, one defendant couldn’t receive a fair trial because the defense (or case against) would unduly prejudice the other defendant. It’s a fact based argument, so I can’t be much more specific. Basically, if a defendant can show the joint trial unfairly prejudices a defendant, that a fair trial is impossible, there can be two trials. But it is a high bar, because judicial economy sets the baseline.

So can Nauta be separated? I think if he takes too long to get counsel, it could probably support a motion to sever him, again basically for judicial economy. In this case that seems likely, because Nauta is facing 3 (IIRC) charges, . He’s in this mainly so the prosecution doesn’t have to prove the base accusations twice: once to prosecute Trump, and again to prosecute Nauta.

The more likely course is that the court appoints Nauta counsel, for the simple reason the court won’t brook delays that are simply delaying tactics. Judicial economy underlies all of this.

Then again, there are reports of a possible superseding indictment in Florida, which might bring in more defendants, but would certainly bring more charges against Trump. And argue even more strongly for severance of the cases. Or, again more likely, that Nauta gets a lawyer assigned, because the case against Trump is the case against Nauta. And that case should not be delayed (the government has legitimate interests in justice delayed being a bad thing), nor should the government be forced to try its case twice.

In the end it’s less the language of a rule than it is the decision (and discretion) of the court, as is true in all matters legal. That’s why you can seldom say “This is how it must be.” I think Cannon’s previous abuse of process (the court’s lack of jurisdiction in the documents dispute. Jurisdiction is like pregnancy; it’s there, or it isn’t. There is no “a little bit” about it.) was clear cut; but it took months to resolve. Still, in the end, it moved rapidly. The 11th circuit didn’t like what it saw, and took care of it. I thought all along the rules were clear. But it took a court ruling to make it so. That was how it must be, but it didn’t move at the speed of a breaking news cycle.

In the end, will there be delays in Florida? Not, I think, because of Nauta. If the court severs him and Trump loses in trial (as he will), is Trump still disposed to pay Nauta’s legal fees? That’s a practical consideration for Nauta. He might even get counsel who urges him to take a plea deal, which would undoubtedly set him at odds with his sugar daddy.

There’s a lot that can happen here, very little of it likely to get Trump a trial postponement until 2025.

Well, Not Bad…

 Raises one question:

Yet I also believe that affirmative action — though necessary — has inadvertently helped create a warped and race-obsessed American university culture. Before students ever step foot on a rolling green, they are encouraged to see racial identity as the most salient aspect of their personhood, inextricable from their value and merit.
When, pray tell, was any aspect of American life not race-obsessed?

American universities were once gender obsessed, by this argument. Harvard was for men, Radcliffe for women. The church I pastored as a seminary student could recall when men sat on side of the church (the pulpit side) and women and children on the other. Blacks were not citizens but apportioned as 3/5ths of a person until the 13th Amendment. But no Constitutional Amendment banned segregation laws, and those laws only finally started to fall in 1964. 59 years ago, if you’re counting.

“Race obsessed” didn’t start in the 1970’s. Don’t pretend it did, or that it can be discarded by judicial, or op-ed, fiat.
Many prestigious institutions have themselves racially gamified the admissions process, finding ways to maximize diversity without making dents in their endowments. For example, some colleges and universities boost diversity statistics on the cheap by accepting minority students who can pay full freight. And even purportedly need-blind institutions seem to have a remarkable track record of recruiting minority students who don’t need financial aid. (By some estimates, over 70 percent of Harvard’s Black, Latino and Native American students have college-educated parents with incomes above the national median.)
What, exactly, is the point here? Harvard has a notoriously rigorous curriculum. Students from families with no college background would probably find it overwhelming. And the assumption that every student in America needs to at least be able to get into Harvard is dubious at best. Considering the caliber of who the Ivies produce (Cruz and DeSantis spring to mind), I’m having trouble seeing the absolute advantage of them. But Harvard wants its students to succeed, as any good school does (what’s the point in flunking everyone out? You can’t really sustain an educational program like that for long.). It makes sense to bring in students who have the ability to succeed. Why admit students who don’t have the support system, especially far from home?

Granted, she gets there in the end:
Remember that racial gamification is just that: a game. Ignore anyone who would have you believe that attending Ivy League universities — with their endowments as large as a reasonably sized country’s nominal G.D.P. — is the only path to happiness or success or racial equality. Civil rights leaders did not endure the dogs and the cold baptism of the fire hoses in the hopes that one day their children’s children could become Ivy-minted venture capitalists and management consultants. Remember that Martin Luther King Jr. did not dream of a multiracial oligarchy and that the “vaults of opportunity” of which he spoke are not hidden only behind a golden door at Yale University. There are other paths in life that do not require gaming anything. Remember that hope is wherever you find yourself.
But I’m not sure the starting point is forgiven by the beginning. If I was grading this as an essay in Freshman Comp, I’d have serious problems with the structure. If I didn’t know these quotes all came from the same essay, I’d say the they were from different people. And yet two different twitter accounts (at least) retweeted this approvingly.

Perhaps this is just an example of how complicated this matter is, and how much of it falls outside the scope of an op-ed, or a Twitter thread, or… a blog post.

Asha Rangappa Has Insights

As well as an interesting analysis of the majority opinion. And so do some of her followers:
Schools in my East Texas town desegregated in 1970, 16 years after “separate but equal” was declared unconstitutional. When I moved to “liberal” Austin in 1977, the fight over desegregation continued into the ‘80’s. And Austin notoriously underfunded schools in the “poor” side of town, v. the rich side, into the early’90’s when I moved away. Guess who lived, by racial category, in each “side”.

It took a generation, at least, to dismantle, or start to, what Brown declared could no longer be the law of the land. Do we really think, another generation in, that we’re all done here?

Thursday, June 29, 2023

Trump Is Going To Be So Glad He Leaked That Tape

But Trump is delaying the Florida trial with Nauta’s lack of counsel, and he always wins those fights!

The team of federal prosecutors working under Special Counsel Jack Smith is currently prepared to add an “additional 30 to 45 charges” in addition to the 37-count indictment brought against Mr Trump on 8 June, either in a superseding indictment in the same Florida court or in a different federal judicial district. In either case, they would do so using evidence against the ex-president that has not yet been publicly acknowledged by the department, including other recordings prosecutors have obtained which reveal Mr Trump making incriminating statements.
Trump as also makes attorneys get attorneys:
Additionally, it is understood that Mr Smith’s team is ready to bring charges against several of the attorneys who have worked for Mr Trump, including those who aided the ex-president in his push to ignore the will of voters and remain in the White House despite having lost the 2020 election.

White Privilege Is Color Blind

Because white is not a race. And I am sure “legacy” means not only “predominantly white” but also predominantly rich.

But money is not discrimination, right? The Constitution is certainly not colorblind. But it does know that it’s money that matters.

That Would Be The Year…

...we elected the most avowedly racist POTUS since Woodrow Wilson? Race had nothing to do with it! “White” is not a race! See? Only white people benefit! No affirmative action involved!

Told you I was mickle in my wroth…

Sentence First! Verdict After! Or Not At All

Evidence? Trial? Who needs that shit?
I heard you yesterday refer to them as a crime family, and this was organized crime," Fox News host Steve Doocy told Comer. "So make it easy for us. What was the crime?" 
"Well, the crime is trading policy for money," Comer stated. 
"Which policy?" Doocy pressed. 
"Well, we're going to get into that," Comer replied before offering policies that he could not connect to foreign money sources. 
"I mean, look, Joe Biden has on day one, he changed our energy policy in America that put China first and America last," the Republican lawmaker said. 
"So you're saying because members of the Hunter Biden family and the extended Joe Biden family got money through various foreign entities, including things like things from China, that the president is compromised," Doocy pointed out. 
"Absolutely," Comer insisted. 
"How's he compromised?" Doocy wondered. 
"He's compromised because he's taken so much money from China," Comer insisted.

Yeah, That’s The Problem

Local school district has students who change addresses every three months (one step ahead of eviction). They go home to empty apartments in the afternoon, have no quiet place to study. During covid when schools were closed and classes were on-line, they had to drive around looking for internet access. Or they just did without.
“I think that this is tantamount to sticking a dagger in our back because what they have said now is that it is unconstitutional to even consider race," Sharpton told MSNBC on Thursday. 
"And given the racial history of the country, let's not act like Blacks are behind because there's something in our genes that made us behind." 
The host noted that it was illegal for Black people to read or write just 160 years ago. 
"We were enslaved 246 years," he continued. "So it is to completely throw to the wind the history of why we needed Affirmative Action in the first place." 
"And I think it is unimaginable not to consider race, given the history of this country and given the data that we still see in this country," Sharpton said. 
"Blacks are still 10 percent less in terms of family wealth than whites. We are still less in education."
But the Civil War! The ‘64 Civil Rights Act!

Or, as LBJ said, you can’t take the shackles off a man after 400 years and say: “Okay, now win the race.” We did this over 400 years. We invented “race” so we could do this. Now we want to uninvent “race,” because it is convenient to us to do so.
Who knew the Constitutional amendments were so lacking in self-awareness? Speaking of which: Funny how it’s just a distraction when it benefits white people. Speaking of which: Best you just sit this one out, asshole. That’s not the self-description you think it is, lucky sperm club.
With let-them-eat-cake obliviousness, today, the majority pulls the ripcord and announces 'colorblindess for all' by legal fiat," she wrote. "But deeming race irrelevant in law does not make it so in life. And having so detached itself from this country's actual past and present experiences, the Court has now been lured into interfering with the crucial work... institutions of higher learning are doing to solve America's real-world problems." 
“The best that can be said of the majority's perspective is that it proceeds (ostrich-like) from the hope that preventing consideration of race will end racism," she said. "But if that is its motivation, the majority proceeds in vain. If the colleges of this country are required to ignore a thing that matters, it will not just go away."
I would love for Conway and the 14th Amendment to tell me why Justice Jackson is wrong.

Critical Race Theory Inaction; Or, Please Don’t Hurt The White People

I am mickle in my wroth, but Justice Jackson is right. So is Justice Sotomayor. A 5-3 decision, because while she filed a dissent, Jackson recused herself from the hearing or decision of the case. CJ Roberts protects white people from America’s hidden wound. Sotomayor points out those days are over (“How long, O Lord, how long?”). Justice Thomas hates black people.

Remain at status quo ante, IOW.  Quelle surprise.

N.B. in response to rustypickup: MSNBC noted that, at oral arguments, Roberts rebuffed an argument from Harvard Law School on the analogy that the Civil War was fought to end racism(basically). It’s as white a privilege argument as I’ve ever hear.

I’ll have to read the opinions. I’m sure it’s in there somewhere.

It’s That Simple

 Anybody still remember the E. Jean Carrol trial? Where Trump denied ever entering the doors of Bergdorf Goodman or knocking who Ms. Carroll is, or denying that she was his “type,” and thus he couldn’t have raped her? Anybody remember it was a classic “she said/he said” conflict where the jury had to struggle with the issue of who to believe, because it was her word against his, his against hers?

Neither does the jury, because that’s not the way the trial happened. The trial happened without Trump ever appearing in court, because had Trump appeared, he might have been called by Ms. Carroll to testify. Defendants in civil suits don’t have a 5th Amendment protection. That’s primarily why Trump was in Ireland for the trial; and why he’ll be in court for the criminal trials. And why he can’t really put on the defenses he’s trying to make now to the Florida indictment. It’s his words (he has several scenarios available) against the witnesses. And he won’t take the stand, anymore than he did when he abandoned the country to avoid testifying. He simply can’t afford to. What comes off as “successful” in media reports is absolutely disastrous IRL.

To legal observers and, indeed, to pretty much anyone who could hear, the audiotape sounded like an admission of guilt. But this is Trump, a serial liar for whom an obvious defense presents itself: that he was not telling the truth to his visitors when he claimed to be showing them secret papers. And, sure enough, by Tuesday, Trump told reporters on his way back from a New Hampshire campaign appearance, “It was bravado, if you want to know the truth”—bravado here being a Trump synonym for “bullshitting.” This is the 2023 equivalent of dismissing the “Access Hollywood” tape as mere “locker-room talk” that had nothing to do with Trump’s actual behavior toward women. He even suggested that the papers he is heard shuffling through were just “building plans.” For Trump, it’s better to be a liar than a convict.

”Legal observers” understand something Ms. Glassier, for the sake of her narrative, doesn’t want to: Trump can’t raise this defense in the courtroom. He can’t do it because he can’t testify. Even Joe Tacopina wouldn’t let Trump testify in the civil case, and his client’s liberty wasn’t at stake there. If Trump testifies in Florida, it’s all over but the shouting. His lawyers would withdraw from the case rather than represent him at that point. And the fact Trump went to Ireland rather than be in court for the Carroll trial indicates even Trump understands this. Trump is a serial liar who plays the media like a fiddle, but he understands that, in the courtroom, he has no power at all. His defense of lies is useless because, if he starts spewing them, they will be challenged; and he will lose.

It’s that simple.

Trump can praise his performance after the fact, or call the interviewer “nasty, “ even complain they didn’t smile in the interview. He can do all that safely through social media or to another, even more fawning, interviewer. But he can’t do it IRT, and he can’t do it under cross-examination, where his every word can be subject to challenge. Trump wilts at challenge. He folds, he fades, he collapses. He has a retort later, when the challenger is gone. Whenever he faces actual pushback, one on one, without a cheering audience of minions, he drops like an empty suit.

There is no audience to play to in a courtroom, no escape from the insistent questioner, no opportunity to call the interrogator “nasty.” Judges don’t put up with that, and Donald Trump is cowed in the presence of judges. He can make up defenses in accounts the media will dutifully report.

He can’t do that in court. He can’t afford to.

Problems Without Solutions

Imagine Bernie Sanders declaring in one of his Presidential campaigns that he would eliminate the DOD. Oh, and DOC and DOE (for the same reasons Rick Perry wanted to; because Perry thought it promoted oil exploration). Give all that to DHS; it’s not bloated and ungainly enough yet. And what does managing the nuclear arsenal have to do with “woke ideology”? "We don’ need no steenken’ TAXES!” And same question as before: how do you use the IRS to get rid of “woke ideology”?

DeSantis really needs to stop trying to make “woke” happen. Even in the America of the hidden wound which is racism, it’s too blatantly racist. And sexist. And homophobic. And plain nasty. 

There’s a reason Christie rises in the polls as DeSantis sinks: DeSantis is boring, now. And Christie bashing Trump has, for the moment, entertainment value. But there’s still no voting until January. All of these shows are gonna get real boring by then.

Wednesday, June 28, 2023

Los Tres Bobos

Third in line to the Presidency due to an accident of who holds the House majority. Everybody worries about the strength of the Presidential and VP candidates in the tough situations, but nobody votes on their Representatives based on who will be Speaker and third in line to the hottest seat in the country. Or at best, only a handful of the country does.

Helluva system we’ve got here.
When does he reveal his secret plan to prove Trump won in 2020?  Emphasis on "communist” for the Boomers out there who think Halley is hotter than shirtless RFK, Jr. Or Ivanka. I find this more disturbing (and nauseating) than the Access Hollywood tape. And end birthright citizenship? And kill “woke”? I guess after the first 90 days he can just take a long vacation. All our trials will be over. And yet he keeps sinking in the polls.


Security Is Just A State Of Mind

The United States Congress passed the REAL ID Act in 2005 in response to the terrorist attacks on 9/11. The REAL ID Act requires states to adopt and implement uniform standards for the issuance and production of state-issued driver licenses and identification cards if they are to be accepted as identity documents by the federal government. This Act strengthens the integrity and security of state-issued cards in an effort to reduce identity fraud and terrorism

Yeah, here’s how that works IRL.

Yesterday I had an appointment at DPS to renew my DL. I took a copy of my birth certificate, but a very kind young woman (hey, I’m old; they’re all “young women” now) explained where to go (local county clerk’s office) to get a certificate that would be acceptable. So off I went.

Once there I met another friendly government employee (I can remember when that was an oxymoron) who had me fill out a form and…present my driver’s license for ID. With that and a credit card , I had my document that would allow me to get…a driver’s license.

It wasn’t Kafkaesque. It was more like finding myself in a Terry Gilliam film. To renew my DL as “Real ID,” I needed a birth certificate. To get my birth certificate, I needed my DL.

I feel so much more protected against identity theft and terrorism now.

The Worst Timeline

"He said, he explained, look, my desk was loaded up with papers. I just held up a pile of papers," Doocy said of Trump. "So the president, former president, you got to figure if you're his defense attorney because he said so many things about these. And they're about to have a heart attack. And they probably have said to him a million times, do you really have to talk about that? Because the more you talk, the harder our job is." 
"Well, he's very transparent," co-host Ainsley Earhardt argued. "And so his lawyers might not like it, but a lot of Americans do like it." 
But Kilmeade suggested special counsel Jack Smith's team had leaked the audio recording. 
"I just find it amazing is we never hear from Robert Herr's investigation," Kilmeade said, referring to a special counsel investigating classified documents turned over by President Joe Biden. "We always hear from Donald Trump's investigation. And just amazing, it always goes to New York Times and CNN." 
"Well, maybe Trump's side is leaking," Doocy said. "Trump's side is leaking audio?" Kilmeade gasped. 
"Why would his side be leaking audio of himself?" 
"Maybe they've been leaking a lot of stuff during the entire process," Doocy opined. 
"I've never heard that," Kilmeade griped.
When Steve Doocy and John Bolton make sense.

Tuesday, June 27, 2023

‘Round and ‘Round and ‘Round

I’m pretty sure, if the House had the tapes or the evidence, we’d have seen it by now.

Speaking of things we haven’t seen:
"New defense”? No: same lies.

Again, who presents this evidence, this defense? Only Trump can do that in court. And he’ll tell whatever story you ask him to. He’ll say it was clippings, he’ll say it was family photos, he’ll say it was building plans. He’ll contradict the witnesses who say it was government documents.

Or, more likely, he’ll say nothing, because his lawyers, not being fools, won’t put him on the stand. He can’t raise this defense if he doesn’t testify. And if he does, he’ll surely be convicted.

Trump has no “new defense.” He only has new lies. And they can all be presented against him, if he testifies.

He’s locked in a round room, and there’s no corner to piss in.

Speaking of talking in circles:
I have no idea what Kash Patel thinks he is doing, or what he thinks he can accomplish. Although it’s still not as bad as this: She left out Russia. 

Chicken Little Legal Takes

"The thing also about this case we have to remember is a courtroom is a different thing for Donald Trump because all of the stuff falls away, and the only thing that comes in front of the jury are the facts. As the judge determines are relevant. And oaths are taken not only by witnesses. They stand in front of everybody and take a solemn oath before God. So does the jury. The jury takes a solemn oath before God about their duty and following the law, and listening to the facts. So, it's a very treacherous territory for a guy like Donald Trump because his wheeling and dealing and his lying at every turn just doesn't work in a courtroom." 

I just like hearing it, especially in a world where every action taken in Florida is PROOF Trump is going to delay the case there until he wins the election, and then gets the DOJ to drop the charges. 

Trump may imagine that's gonna happen.  Trump also imagines the PRA gives him the right to take whatever he wants.  I'm sure Tom Fitton told him that.  Tom Fitton gets the PRA and the "Clinton socks case" exactly backwards.

As for the punditry, it's almost all Chicken Little Legal Takes.  I really can't stand it anymore.

"And Your Ironing Boards And Your Soap Operas And Your 5 O'Clock Martinis!"

Waiting For God....

Although David French is sort of missing the point: If, indeed, this is valid data being validly read.

When I was in seminary in St. Louis, I had occassion once to pay a visit on the once high-state UCC church in St. Louis.

In it's heyday it was the church of the elite in a city that was at the crossroads of America. One of the more famous World's Fairs was in St. Louis, and this church regularly hosted the governor of Missouri (when he was in town), called the Mayor a member, and fed dignitaries and VIP's in a dining room with food supplied by a paid kitchen staff, served with silver utensils and flatware on china bearing the name of the church (which, frankly, eludes me now) and of a design unique to the church.  That church, in its day, was Kind Of A Big Deal.

Belonging to that church was a haven for everyone in Missouri, or at least St. Louis, who wasn't Catholic (St. Louis; the Cardinals; yeah, St. Louis has, as my Catholic priest Pastoral Care teacher put it, "more Catholics than you can shake a stick at.") but who had "done everything 'right.'"

The more things change....

Was that bad for democracy?  And religion?  Arguably democracy got a great boost when Martin Luther sparked the Reformation (not that he actually did; things were moving that way already.  Calvin and Zwingli, and others, were already looking for a break with Rome.  Luther lit the match, but the fuses and gunpowder had been laid down long before he raised his hammer to drive that nail at Wittenberg.).  The emphasis of the Reformation was on the individual (well, actually, on other leaders than bishops and Popes.  True individualism didn't come along until the Romantic movement in the 19th century, so you could just as well say the Industrial Revolution gave a boost to democracy, too.)  Religion thrived in the Middle Ages as Rome and Roman order collapsed and a new order slowly, painfully arose.  It was priests who taught knights the concept of chivalry and care for the poor, rather than playing brutal, petty warlords as they did, being the lowest rung on the feudal ladder but still, in armor and on horseback, far above the toiling peasants who fed the whole system but had no say of their own.  It was also religion that kept them oppressed, let's be honest.

But which was bad for religion?  The Pope's temporal powers, or Luther's tight connection (they kept him alive!) with German princes, who also weren't all that concerned with the poor.  Sure, you had monks like Francis; but the Pope was never a Franciscan until, unless I have it wrong, the current Bishop of Rome.

In Houston, now, the largest Baptist church in town reportedly has a lock on funerals for police officers.  I know that isn't quite true, but it's a stalwart rumor meant to reflect the political power (waning over the decades, actually) of that church.  In almost any smaller town, there is one church it is wisest to be seen belonging to, if you want to be sure to "do everything 'right.'"  I'm not saying that's right, per se; but it is the way it has been since Paul's house churches became Augustine's formal churches became cathedrals and, in the modern version, basketball arenas.

Their trend is just as unmistakable: those who are the most likely to attend services weekly are those with a graduate degree. The least likely to attend are those with a high school diploma or less. And these aren’t small differences, either. The last few years have seen nearly a ten-point gap in attendance from the bottom to the top of the education scale.

Less educated people work harder, longer hours, at more physical, if not flat manual, labor.  Time was when everything except sports events were closed on Sundays, and church was somewhere to go in the morning because, what else were you gonna do?  Read the Sunday Times?  Not outside NYC, you weren't (I remember the thrill of being able to buy the Times in Austin, because it was sent electronically via satellite to the local newspaper to print and distribute.  This was only 40 years ago.)  So some of that "spread" is about economic justice as much as it is about educational attainment.  But it doesn't disturb his basic point, just shifts its focus a bit.  Especially in light of the opening of his argument, appealing to the Gospel of Luke and the fundamentally Christian idea (truly fundamental, although it's almost never stressed) that the first shall be last and the last first.

But it isn't education that's driving religious affiliation or worship attendance. Indeed, the data points out that those with graduate degrees are most likely to attend worship regularly.  It's called "networking," something even my father recognized as an important part of church attendance (I remember him telling me about that fact of life when I was married and living in Austin and returning to church after decades away; that return led me to seminary, eventually).  It's also called "leisure time," something people with graduate degrees, who are usually paid commensurate with the value of their diplomas (doctors, lawyers, etc.), tend to have more time off than high school graduates.  If you're an auto mechanic at a car dealership, what do you need to network for? 

I'm not being severe about this. My grandfather had, at best, a high school diploma (if that) and worked as a manual laborer or heavy equipment operator until he retired in his '60's (and died before he reached 70, as most people did at the time).  He was a lay preacher and regularly attended a Primitive Baptist congregation.  But times have changed, economically and socially.  That's the trend that is truly unmistakeable.

"Networking" points to a fact about church attendance:  it's about the people far more than it's about the "religiosity" of the attendants.

That gap persists all the way through the life course, too. Even among sixty-year-olds it’s still there. About 30% are married retired folks are in churches, it’s just 20% of those who are not married. Marriage leads to much higher levels of religiosity - at any age. 

He's talking there about married couples attending worship, v. divorced or non-married couples.  But his conclusion is that "Marriage leads to much higher levels of religiosity."  Or it leads to greater seeking of a community of like minded people you enjoy spending time with.  When I married the Lovely Wife we didn't seek out a church because neither of us were exactly comfortable looking for one.  We finally did a few years before the Golden Child was born, or almost 15 years into our marriage.  We made friends there, enjoyed the people there, threw ourselves into it.  There was a couple our age pregnant with their first child about the same time we were, and their child was born around the same time ours was. It was a community. And it ended when we move to St. Louis and I entered seminary.

And after some perfectly miserable experiences in parish ministry, and equally rough times in churches we attended as lay members, we left church again.  I have three graduate degrees, including my M.Div., but I haven't regularly attended church in almost 20 years.  I suppose I'm an outlier.  But mostly, I was teaching English and didn't need to "network," and the people I found in congregations were, to put it kindly, not people I really wanted to spend time with.  I'll take the blame for that in Groucho's famous phrase that I wouldn't join any club that would have me as a member.  Not anymore, anyway.

Does the data explain me as lacking "religiosity"?  Or is the problem in applying that term, and using the data to flatten everyone out into one-size-fits-all explanations?

The clear outlier here is folks who are married with children. Among those who fit both criteria and are under the age of thirty, 37% are attending weekly. That does begin to decline as the age category moves up. I am guessing that’s because folks who have children later in life tend to be less religious, but that’s just a hunch.

Except when the Golden Child was born I was six weeks shy of being 37.  And from seminary onward, we attended church weekly; well, until we stopped, and no one in the family disagreed with the cessation. I know, I know, a patch of ice doth not a winter make, nor a single swallow summer.  But I'm no less religious than I was; I'm just no more interested in worshipping among people than I was.  Me and Groucho, is my explanation.

These results are hard to ignore and should sound some major alarms for any person of faith who is concerned about the large state of American society. Increasingly religion has become the enclave for those who have lived a “proper” life. College degree, middle class income, married with children. If you check all those boxes, the likelihood of you regularly attending church is about double the rate of folks who don’t.

This is also troublesome for American democracy, as well. Religion, at it’s best, is a place where people from a variety of economic, social, racial, and political backgrounds can find common ground around a shared faith. It’s place to build bridges to folks who are different than you. Unfortunately, it looks like American religion is not at its best.

Yeah, bullshit.  Working stiffs like my Grandfather were not likely attending that St. Louis UCC church in its heyday for late 19th and early 20th century glitterati.  I never saw anyone with a college degree attend my grandparents Primitive Baptist church, though they'd have been more welcome there than my grandparents would have been at the "high churches" of many American cities.

Church attendance after WWII was all about the "proper" life.  If you weren't dressed properly, you weren't welcome at all.  The little country church I pastored in Southern Illinois, two of the happiest years of my ministry, was sometimes visited by the town crank. What to call her?  In NYC she'd be a "bag lady," except she had a home of her own, and fierce Midwestern independence. I don't think she was mentally ill; she just lived according to her lights.  She was her own woman, and once in a while she'd wander in to the church service.  It was a tiny room, you couldn't miss a newcomer if you tried.  But the town (of about 150, IIRC) all knew her and all accepted her, and so welcomed her if she showed up.  That whole congregation was more "religious" in the way Mr. Burge seems to mean the term than any I've known outside my grandparents' church.  And there was precious little concern with being "proper" in either congregation.

As for religion being a place where a variety of backgrounds come together:  in what church?  Dr. King, I think it was, called Sunday morning the most segregated hour in America.  It still is.  Most churches are white or black; or now gay, or not.  I think some of the "gay" churches are also more multi-racial than I'm used to, and good on them.  But I attended two black church services; one in seminary, one where I preached as the guest at a black UCC church in Lake Charles, Louisiana; and I can tell you in both churches I was more welcomed by the congregation than any one of their members would have been in the white churches I knew. Oh, there was no overt racism; but the segregation of the hour was still a profound cultural reality.

I suspect, despite the exceptions, that they still prove that rule.

No, church in America (and yes, we mean "Christian church, don't we?  Not synagogue or mosque or anything else; just Christian) is not the democratic American melting pot, then or now.  It's not, nor was it ever, egalitarian, class-blind, race-blind, or gender-blind.  Besides, I don't meet Muslims, Jews, or Sikhs in my church, and Muslims don't meet me in their mosque nor Jews in their synagogue.  The idea that church attendance is, or once was, reflective of America as a whole and so an instrument of democracy, is laughable.

Democracy as whole in America has led on the issues of inclusion and acceptance of genders, races, and religious beliefs, far more than church in America ever has.  In fact, all this data tells me is that the beat goes on.

And that should be of concern for church and religion in America.  But, as Fehrlengetti once wrote:  "I am waiting for someone to really discover America.  And wail."  He meant that, or at least I think he did, in the '50's American jazz sense of sing with unalloyed joy for what had finally been found.

I'm with the poet.  I'm still waiting. 

This Is Actually Kind Of A Big Deal

That completely ends Trump's argument (which he stopped making some time ago) that the states could have filed new slates of electors, and couldn't alter their election practices (due to covid) without full legislative authority.  That case is going to play big in Georgia and probably in the J6 prosecution.  The Supremes continue to drive nails in Trump's coffin; which is an interesting, and too overlooked, story in itself.

In its own way, though seemingly wholly unrelated, this is a big deal, too. The former is the result of a careful, deliberative process of legal reasoning (I haven't read the opinion, so I may change my mind; but for the moment, the benefit of the doubt is invoked). The latter is hare-brained nonsense of the "LOCK 'EM UP!" and the "Sentence first--verdict afterwards" reasoning of the Queen of Hearts. It's anti-legal reasoning because it's against any process of law and solely for the purpose, in fact, of ending legal process because Fitton doesn't like where it's headed or who it's aiming at.  Which doesn't make it a big deal at all, except in the context of recent news.

In that context, it confirms for me that the tape tout le monde is talking about today, came from Trump or someone Trump adjacent.  Is Fitton's tweet proof of that assertion?  No; but it's curiously coincidental, especially as he wants to use it to nuke the prosecution altogether.

Something else not required by the law.  Fitton couldn't even make a legal argument for an investigation.  Especially since there's no reason to believe Trump didn't already have a copy of this tape; and thought it was clever of him to release it. 

But that tape is mentioned in the indictment, although not in as full a form as what was released.  The indictment, however, is not obliged to contain all the evidence the DOJ has against Trump.  It could well be they have other tapes of which Trump is unaware.  If one of those leaked, it could be suspicious.  If they don't, it points back to this tape coming from someone not the DOJ.  Besides, as Andrew Weissman pointed out on MSNBC this morning, that tape mentioned in the indictment is not the basis of a charge in the indictment. Which means it could be used as the basis for a charge in New Jersey, since the recording was made at Bedminster.
Releasing that tape doesn't do Trump any damned good at all. He's exposed himself, all but confessed to the crime on camera, and done nothing to dissuade the prosecution in Florida. Indeed, he makes a prosecution in New Jersey more likely.

So the problem is not that the tape was released.  And Tom Fitton is too dumb to understand that.

How Very White Of You

A regular reminder that the only common ground is Trump.

Still, some days I can’t even…

Freedom Of Thought Is Not A State Right

Do we leave the secret decoder ring at home? Not wear the uniform in public? Avoid the secret handshake in public?

Is there a border check: “Are you now, or have you ever held socialist ideas or voted for a Democrat?”

Interstate travel is the next thing to go after birthright citizenship.

Consider The Source

I think John Barron "leaked" it.* I have to add here that “religion” is a maligned and misapplied excuse for explaining the behavior of people whose lived experiences we can’t be bothered to try to understand. I’m not trying to excuse them, but the problem here doesn’t originate in some reductive definition of “religion.” I mention this also because there’s another issue about Trump’s pre-trial behavior we need to pay attention to: Trump is already screaming “ELECTION INTERFERENCE!”. He’d just turn up the volume on his First Amendment rights, and have pundits and Washington reporters wondering aloud if he was right. After all, he’s a rich white man with a megaphone πŸ“£. Is that really a special privilege for a criminal defendant?

It is a two-tiered justice system. And we like it like that.

*Exhibit “A”. The thing speaks for itself.

Announcing A New Conspiracy Theory About Big Ag In 3…2…1

Pepperidge Farm Remembers

Remember when that was such a good interview Trump was telling everybody to come back for part two?

Ah, dem was de days!

Monday, June 26, 2023

Putting 2 And 2 Together, Coming Up With Eleventy Billion

Or maybe the total non-sequitur is the problem. Mind you, I have issues like that when I read an egregiously stupid tweet; or article; or comment. But when it’s that bad, all I do is post on a blog nobody is paying attention to. What I don’t do is seriously damage national security. Gotta say, I thought we already knew that. But I suppose it bears repeating.

Even if it is only being repeated on a blog nobody is paying attention to. 😎

“123rd Annual…” Should Have Been The Tipoff

A “Texas Country Jamboree” operating continuously since 1900? About the only non-natural thing in Texas that old is the campanulate (the “hump”) on the Alamo. And that’s only been there since 1845.

Besides “woke” is not doing DeSantis any favors; why is Abbott adopting that losing strategy?

“If It Comes True…”

Or just that McCarthy is a weasel.

"If it comes true what the whistleblower is saying…”

Or if the sun doesn’t come up in the morning.

Or if water starts running uphill.

None of those things has ever happened. And I don’t think McCarthy has decided one little impeachment will date the Freedom Caucus crazies.

So until they finally find a credible whistleblower on this issue. 

One might argue McCarthy is depending on the incompetence of the GOP House.

Let’s Start With “Joey No-Socks”

The award Trump’s holding there is from the “American Academy of Hospitality Sciences”, a group Trump says he has no connection to:
In a conversation with Yahoo News on Thursday morning, Trump denied he had any involvement with the ratings group, which has bestowed numerous five- and six-star ratings on his properties. 
“I mean, I receive awards from different places sometimes, but I’m not involved in it. How am I involved in it?” said Trump. 
Trump indicated he didn’t know much about the academy’s board of trustees — on which he, two of his sons and multiple members of his organizations have served. He also claimed he doesn’t know Cinque well. 
“He may have set up a board of trustees. I don’t know. I don’t know that my sons are involved with that, actually,” Trump said, adding, “But he’s a very nice man. I don’t know him well. I don’t know him well, but I have found him over the years to be a very nice man.”
See, the problem is:
Trump recently held one of the top three slots on the organization’s board of trustees, with the ostentatious title of “Ambassador Extraordinaire.” Members of Trump’s family and multiple executives at his company, the Trump Organization, have also sat on the academy’s board of trustees, which selects award winners. Cinque runs the academy out of his apartment on Central Park South in Manhattan, just blocks from Trump Tower.
But the sinker is this photo:

That’s Trump’s signature on an award given in 2015. Trump signed it as “Ambassador Extraordinaire.” Which is such a Trumpian title.

The moral? Trump lies.
Speaking to the Fox News network about the transcript after it was released, Trump swore it was all fake news. “There was no document. That was a massive amount of papers and everything else talking about Iran and other things. And it may have been held up or may not, but that was not a document. I didn’t have a document, per se. There was nothing to declassify. These were newspaper stories, magazine stories and articles.”
So, two things:
"One, as a former prosecutor, it makes my hair stand on end a little bit to see this in the public domain," she said. "Prosecutors try to keep this stuff safeguarded so you can't have witness tampering and crowdsourcing of defenses. Now people can because this is in the public domain. But as a matter of evidence, this is really powerful evidence. We had seen some verbatim quotes from this recording that was in the indictment, but to hear the whole thing play out, I think, is incredible evidence. And at trial, it will not just be this recording that's played in a vacuum. They will have to authenticate this document, this recording, with someone who was there. So, whether it is the biographer or the publisher or one of the two staffers, one or more of them will have to be there."
Yeah, this tape shouldn’t be out there. People are saying it takes Trump down in the court of public opinion, but this gives Trumps’s lawyers information they might not otherwise have. But the horse is out and that barn has burned down. The other issue is that they have to put on witnesses to present this tape. And those witnesses will have been there, in the conversation, and can testify that the documents were not “newspaper stories, magazine stories, and articles.”

And Trump takes the stand to say they were? Game over, man, game over. Because Trump lies. He doesn’t even recognize it as lies (IMHO). Which is worse, because he can’t stop lying. Trump can’t take the stand. He would literally braid the rope and tie the hangman’s noose in it. Trump can even tell Hannity he declassified the “articles.”
It doesn’t matter. The question of “declassified” doesn’t apply to the charges. And was it real, or was it a story? The witnesses in court will answer that, not Trump. And Hannity won’t even be in the same state when it happens.

Because Trump lies. 

And in court it’s going to catch up with him; over and over and over.

Putin’s Done For! He’s Done For!

Or maybe not.

I hate it when John Bolton is the voice of reason.


Has he been asleep since 1964? 😴 

“A Modest Proposal”

Satire is seldom understood by those who are the target.


But Jack was saving Twitter, and Elmo ruined it! It’s all a matter of who’s telling the story, isn’t it? Like when drag was funny, rather than “sexual.” (My first encounter with Monty Python was the “Hell’s Grannies” skit, on a Dean Martin summer show (yes, Virginia, they had those once upon a time). When the show came to KERA in Dallas, my biggest concern was the sex jokes (“How long is it?” “That’s a very personal question, sir!”) and the occasional topless ladies (on TV!). Nobody thought of the “boys” as dressing in drag, even though Carol Cleveland was often the only woman on screen, and some of the best sketches, like the Penguin sketch, involved female characters.

Still not hearing calls to ban Python, so the narrative is about a very, very particular concept. Not all drag us created equal. And while women in men’s clothes can be sexual, men in women’s clothes is still just…funny.