• Archive of "Democracy" Category

    Can the President Now Kill Americans?

    July 16, 2024 // 14 Comments »

    Never mind the Supreme Court and immunity, he’s had the power to kill an American citizen since 2010.

    Justice Sotomayor, in her dissent from the majority decison in Trump v. United States to grant the president immunity from criminal prosecution for official acts he commits while in office, wrote: “The long-term consequences of today’s decison are stark… The president of the United States is the most powerful person in the country, perhaps the world. When he uses his official powers in any way, under the majority’s reasoning, he will now be insulated from criminal prosecution. Orders the Navy’s Seal Team Six to assassinate a political rival? Immune.”

    Picking up on Sotomayor’s fears, left-wing media and pundits fantasized about President Biden having Donald Trump and the conservative Supreme Court justices killed as an official act following SCOTUS’ presidential immunity decision. “If I was Biden I’d hurry up and have Trump murdered on the basis that he is a threat to America’s security,” a radio host wrote on X. Is that OK now, as he reasoned?

    The biggest problem with willy-nilly assassinations is the Fifth Amendment, which provides for due process before an American is deprived by the government of life, liberty or property. Capital cases require a grand jury. So while Biden may claim immunity if ordering Trump’s murder, he can’t get around the unconstitutional nature and thus impeachability of his action, immunity or not. Right?

    Where things start to get fuzzy is with the assassination thing and Seal Team Six. The Seals conduct targeted killings all the time, nailing a terrorist here and an insurgent there across the Mideast. Officially these are labeled as “catch or kill” missions but there seems to be very little catching. The bin Laden raid is one high-visibility example where the kill option was explicit and primary. Of course when the Seals are busy elsewhere, drone assassinations are always a presidential option, as in the case of Iranian general Qasem Soleimani. None of these people are Americans with any Constitutional rights, and none were killed on American soil, so it all falls loosely under some category of acts of war or whatever. Which brings us to Anwar al Awlaki.

    Al Awlaki and his 16-year-old son were American citizens assassinated via targeted drone attack in Yemen by the United States in autumn 2011. Al Awlaki had once been a friend of the American military, invited in the aftermath of 9/11 to speak and lunch at the Pentagon. A few years later, al Awlaki was connected by the same U.S. government to al Qaeda, apparently mostly as a propagandist who may or may not have taken on an online role in persuading other Westerners to join the cause.

    In 2012 Attorney General Eric Holder said of the al Awlaki killing and the Fifth Amendment the “U.S. can lawfully target American citizens” and “that a careful and thorough executive branch review of the facts in a case amounts to ‘due process’ and that the Constitution’s Fifth Amendment protection against depriving a citizen of his or her life without due process of law does not mandate a ‘judicial process.’” It was unknown at the time, but Holder was referring to a secret white paper prepared by the Office of the Legal Counsel laying out the legal justification for the U.S. government to kill one of its own citizens extrajudicially, in apparent violation of the Fifth Amendment.

    The white paper was finally released in 2014 and showed a convoluted legal process had been created to legalize the American citizen killings and thus render the president immune for having ordered them. The essential element for the kill to be legal, the document says, is “an informed, high level official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United States.” Capture must be found to be unfeasible, and the kill must follow the existing laws of war.

    The rest of the justification simply flows from there in a perverse chain of logic: the president has the obligation to protect America, al Qaeda or its like are a threat, and being in al Qaeda is more relevant than whatever citizenship the target may hold or where he is located (“citizenship does not immunize the target.”) International borders and other nations’ sovereignty are not an issue if the U.S. determines the host nation is “unwilling or unable to suppress the threat posed by the individual targeted.” But what about that due process promised Americans in the Fifth Amendment?

    The Fifth Amendment right to due process (and perhaps to a lesser extent, the Fourth Amendment right against unwarranted seizure, i.e., a life) are dismissed casually in the white paper by a claim the U.S. interest in “forestalling the threat of violence and death to other Americans that arises” trumps any constitutional rights for the individual. This is described as part of a Fifth Amendment “balancing process.”

    The balancing process cited as conclusive enough to justify the extrajudicial killing of an American, according to the white paper, stems from of all things a 1976 Supreme Court case, Mathews v. Eldridge, where the Court held that individuals have a statutorily granted property right in Social Security benefits, that the termination of those benefits implicates due process, but that the termination of those benefits does not require a pre-termination hearing. The balance test for the Fifth Amendment to apply to murders as laid out in that case has three components [notes added]:

    (1) The importance of the private interest affected. [In a kill case, the private interest is the life of an American citizen.]

    (2) The risk of erroneous deprivation through the procedures used, and the probable value of any additional or substitute procedural safeguards. [In a kill case, since the American will be dead, it is impossible to ever “correct” the mistake. The Court held that “If the risk of error is minimal, then the need for additional procedures declines. If the risk is high then additional procedures would be merited.” So, with the potential of a recoverable error, less process is needed. The more serious a mistake might be if committed, the more (perhaps non-judicial) process needed.]

    (3) The importance of the state interest involved and the burdens which any additional or substitute procedural safeguards would impose on the state. [According to the kill white paper, the idea that killing the American saves potentially thousands of other Americans lies is the state’s interest. The burden of the U.S. government to follow any procedural safeguards, such as a trial in absentia where the target could have his side presented by a lawyer, is not addressed in the kill white paper]

    In short, the balancing test says that in some situations, the president can kill an American citizen extrajudicially. No need for Supreme Court-granted immunity, like in the Wizard of Oz he has always (at least since 2010) had the power.

    “Where national security operations are at stake, due process takes into account the realities of combat,” then-Attorney General Eric Holder said. “Some have argued that the president is required to get permission from a federal court before taking action against a United States citizen who is a senior operational leader of al-Qaeda or associated forces. This is simply not accurate… our government has the clear authority to defend the United States with lethal force [and] our legal authority is not limited to the battlefields of Afghanistan.”

    So can the president really kill an American, in America? There are no known test cases, but some very disturbing testimony by then-FBI Director Robert Mueller.

    Mueller, appearing before a House subcommittee on whether the same criteria used to kill Americans abroad also would apply in the United States and whether the President retained the “historical” right to order such assassination on U.S. land, said that he simply did not know whether he could order an assassination of his own against an American here in the U.S. “I have to go back. Uh, I’m not certain whether that was addressed or not” and added “I’m going to defer that to others in the Department of Justice.”

    Note that Mueller had the option of saying flat-out “No, no, the FBI can’t order an American killed in the U.S.” or maybe “No, even the President can’t order a hit on an American here in the U.S. where the full judicial system, Constitution, and other protections apply.” Mueller did not say those things. Instead, in 2012 under oath before Congress, the senior G-man of the United States, who to get his job had to swear an oath to uphold the Constitution, was so worried about perjury that he was unable to say whether or not the U.S. government can indeed kill one of its own citizens inside the United States without trial.

    Immunity may have its dangers, but it is only a small part of the problem given the vast expansion of presidential capital power in the aftermath of 9/11.


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    Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

    Posted in Biden, Democracy, Post-Constitution America

    SCOTUS via Fischer Frees Trump from J6 Charges?

    July 10, 2024 // 24 Comments »

    This is how lawfare works. The Supreme Court on June 28 likely exonerated 350 of 351 defendants, rebuking Biden’s Department of Justice for abusing an existing law to go after January 6 participants and turn them into felons. You wanna guess who the one last defendant still in trouble is?

    Donald Trump remains charged with two counts of obstructing an official proceeding. At issue was part of the Sarbanes-Oxley Act of 2002 (Title 18, Section 1512(c)(2)), which was enacted after the collapse of the energy giant Enron and contains a broad catchall provision that makes it a crime to corruptly obstruct, influence or impede any official proceeding. The justices rejected the idea this statute, initially intended to criminalize things like shredding documents or tampering with evidence in corporate malfeasance cases, could be stretched by the Justice Department to include the disruptions of the counting process that took place on January 6.

    The SCOTUS case is Fischer v. United States, brought by defendant Joseph Fischer, a former police officer seeking to dismiss the charge accusing him of obstructing an official proceeding, specifically the certification by Congress of Joe Biden’s election victory. It involves a federal law which provides anyone who “obstructs, influences, or impedes any official proceeding, or attempts to do so” commits a felony and can be imprisoned for a maximum of 20 years. The law was repurposed against J6 defendants, claiming their protest obstructed the business of Congress certifying the election of Joe Biden to the presidency. This was a novel use to create a felony out of the J6 protestors’ actions, as typically illegal or disruptive protesting is just a misdemeanor.

    There are also First Amendment issues with criminalizing protests against the government that were more or less ignored in these cases (though Justice Amy Coney Barrett did touch on the 1A in her dissent, and during oral arguments stated “People are going to worry about the kinds of protest they engage in, even if they’re peaceful, because the government has this weapon.)

    Trump is in the picture because he too is charged with obstruction and conspiracy to obstruct, with the government claiming he worked in a variety of forms to overturn the 2020 election and make himself president for a second term (that this was Constitutionally and technically impossible is somehow not relevant.) One aspect of this was Trump’s efforts to “exploit” the Capitol riot to his own ends, from which the obstruction charge arises. Specifically, the indictment says “Donald J. Trump did knowingly combine, conspire, confederate, and agree with co-conspirators, known and unknown to the Grand Jury, to corruptly obstruct and impede an official proceeding, that is, the certification of the electoral vote.”

    SCOTUS said in its recent decision the interpretation used to convict 350 men was wrong. They said prosecutors overstepped the bounds of the law in using an obstruction statute to charge members of the group that stormed the Capitol. Chief Justice John Roberts, writing for the majority, read the law narrowly, saying it applied only when the defendant’s actions impaired the integrity of physical evidence. Lower courts will now apply that new, stricter standard, and it will no doubt lead them to dismiss charges against many defendants. Those already in jail will likely see their sentences reduced and future trials will not include the obstruction charge. Left unspecified at present is the fate of the 52 people convicted exclusively under the law challenged in Fischer, with no other charge — 27 of whom are still serving sentences for that in federal prison.

    But don’t worry about those J6 guys getting off too easy. The New York Times, practically salivating, writes “Some federal judges in Washington who are handling the January 6 cases have already signaled that they are willing to increase the sentences defendants receive on crimes other than the obstruction count in order to make up for any loss in prison time.” Still, Trump saw the decision as a plus, posting on Truth Social this was a “a massive victory for J6 political prisoners.”

    But what about Defendant 351, Trump himself? Special counsel Jack Smith stated Trump’s charges will not be affected, saying Trump’s conduct could be considered a crime under even the narrow SCOTUS reading of the law. The former president is accused of tampering with documents (the law reads “have taken some action with respect to a document, record or some other object”) through his plot to create false slates of electors claiming he won in states actually carried by President Biden. The accusations against him include that scheme to concoct illegitimate documents to disrupt Congress’s processing of electoral college votes, namely, fake elector ballots “cast” for Trump by fake electors. In other words, the J6 guys obstructed the vote count through their protest, acts now deemed by the Supreme Court to be an over-application of the Sarbanes-Oxley Act of 2002. Trump is charged under the same law but for different actions, those fake elector ballots.

    Because that’s how lawfare works, ignoring the intent of any given law — common sense, in many cases — in favor of microscopically picking out and if necessary reinterpretating those parts of the law might lead to a conviction. The goal is not justice or a search for truth, it is 3D Tetris designed to see if some set of actions can be twisted to fit any available law that might lead to a conviction.

    That was the essence of Trump’s felony counts in the so-called “hush money” trial. What was essentially a bookkeeping error, labeling money paid to lawyer Michael Cohen as “legal expenses” when it was actually something else (reimbursement for money he supposedly gave to Stormy) grew into serial felonies because the prosecutor wanted it to. As an example, the Clinton campaign committed the exact same bookkeeping error, labeling money for Michael Steele to produce the infamous Russian dossier as legal expenses, and faced only a fine of $8000. No jail time hanging, no attempt to overturn the campaign for president, not even a decent slap on the wrist. That’s lawfare. Republican lawmakers, including Senator Tom Cotton and Representative Jim Jordan, filed a brief in Fischer’s case saying the Justice Department is using the law as an “all-purpose weapon against perceived political opponents.”

    Same for those classified documents. Classified was found purloined and improperly stored by Joe Biden (never mind Hillary Clinton and her email server) but no charges were filed. Trump faces a raft of charges for essentially the same act, without much explanation other than “face it kid, that’s lawfare.”

    Justice Ketanji Brown Jackson, surprisingly voting this time with the majority, wrote courts concerned about the uneasy fit between this law and the J6 protestors’ actions should not lose sight of “the backdrop of a real-world context” Congress wrote into the law after the document destruction in the Enron scandal. “There was nothing as far as I can tell in the enactment history as it was recorded that suggests that Congress was thinking about obstruction more generally,” she said. Nothing but lawfare, she might have added.
    There’s one last wrench to throw into the works, immunity. Following the verdict in Fisher, the Court one work day later ruled in Trump v. United States the former president is entitled to absolute immunity from prosecution for official acts, and sent his J6 case back to the lower court. The SCOTUS ruling does draw a critical distinction between official and private conduct. VP-hopeful J.D. Vance called it a “massive win,” as did Trump himself on Truth Social. Practically speaking, this all likely delays any verdict on Trump’s J6 actions until after the election, when it will not matter. Lawfare, however, is here to stay with us and it is unlikely that Trump will be its last victim.

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    Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

    Posted in Biden, Democracy, Post-Constitution America

    Trump Wants Free Green Cards for Every College Grad

    July 3, 2024 // 16 Comments »

    In a move which both is self-defeating and which exposes the fundamental problem with America’s immigration system, Donald Trump proposed “automatically” giving green cards to foreign nationals who graduate from a U.S. college.

    A Trump spokesperson clarified the offer to include both two-year and junior colleges, and to include every foreign student except those who are “communists, radical Islamists, Hamas supporters, America haters, and public charges.” Trump said this was another “Day One” plan for him. The goal is to “to keep the most skilled graduates who can make significant contributions to America.” Currently foreign national college grads have to either leave the U.S. after graduation, work for two years as “practical trainees” and then depart, or apply for a hard-to-get work visa/change of status.

    The plan of course is self-defeating on its face. Trump, like most people who read it, thinks his plan will scoop up the PRC MIT A.I. PhD with the 4.0 GPA who wants to work for NVidia, forgetting America’s college system includes pay-for-play schools, visa mills, aimed directly at foreigners who just want a student visa to allow them to work in the U.S., at whatever job. Trump also forgets perhaps his own college days, which must have included a kid who just barely got by and graduated with a C- average in Medieval Music Theory. Not much demand for that, from American or foreign grads. Once again, in order to get the baby America is drinking the bathwater, too.

    The concept of a merit-based system in the U.S. is not new. Trump 45 flirted with the idea but never moved to implement it. Even Hillary Clinton proposed a plan to link college grads to green cards. Since 1965 the American immigration system has been tied to the concept of family unification, with little interest paid to anything merit-based. The core problem with the family reunification system is the primary qualification to immigrate legally is simply that family tie. So America gets the drunk brother alongside the nuclear physicist sister. It’s a crap shoot. There is no connection to America’s economic needs. You get the nuclear physicists from Stanford but you also get the drunk modern art appreciation majors from Podunk U. Things work similarly at the border, where America gets whomever survives the Darwinian slog through Mexico. The family reunification system is a legal hangover, as would be Trump’s plan to gift each college grad with a green card.

    The American family unification system, with its small number of merit-based visas tagging along (mostly in the H-1B category) is near unique in the industrialized world. Britain, Canada, Australia, and New Zealand use primarily a merit system based on “points.” Based on national needs, an applicant with no relatives in Canada will accrue points based on education (Canada awards 135 points for a Master’s, only 30 for a high school diploma), language ability (extra points toward immigration up north if you are fluent in English and French), and job skills. But you may not need a master’s in computer technology for Canada: they’ll take you if you’re a quantum engineer, but they’ll also take you if you are a tar sands miner willing to live five years in the unsettled west. The key is tying merit-based points to the nation’s economic needs.

    The U.S. is stingy with the merit-based visas it does offer. Out of a total legal immigrant pool of about one million, the annual cap for the 2023 fiscal year was 65,000 skilled worker visas, plus only an additional 20,000 visas for foreign professionals with a master’s degree or doctorate from a U.S. institution. However, not all H-1B visas are subject to this cap. For example, up to 6,800 visas are set aside each year for the H-1B program under the U.S.-Chile and U.S.-Singapore free trade agreements. Something special about skilled people in Chile compared to, whatever, Columbia? Back to that baby and his bathwater.

    Through the end of the 19th century, America essentially had no immigration law. The country was huge, land was available for the taking, and the need for unskilled workers seemed bottomless. The waves of Germans, Irish, Jews, and Italians came from every dump across Europe and beyond. They entered an America where New York City was a center of light manufacturing and the source of more than half of all ready-made clothing, and the vast Midwest was blanketed with farms and steel plants hungry for workers. This system gave way as the first real immigration laws, targeting the Chinese, who were no longer needed to build the railways out west. Following WWI, Italians and eastern European Jews, who were considered “inferior,” were banned. Racism played a significant role, but it dovetailed more than coincidentally with an economy that was shrinking (ultimately, the Great Depression) and demanding more skilled workers.

    The years following WWII saw a massive change in immigration law. In the booming post-war economy, it was believed there was room for everyone again, and old racial wrongs were righted by removing national quotas and emphasizing family unification. Most post-war immigrants, unlike those of the great waves of the 19th and early 20th centuries, were the relatives of earlier immigrants. Little attention was paid to who these people were, what education and skills they had and, most significantly, what the needs of the American economy were in comparison. This is the system largely in place today.

    But what if we can do better, a lot better, for the needs of the 21st century?

    The monetary reasons are there, what Trump is aiming for. Immigrants and their children founded nearly half of the Fortune 500 companies. These include 5 of the top 12: NVidia, founded by a Taiwan national with a Master’s from Stanford; Apple; founded by the son of a Syrian, no degree; Google, cofounded by a Russian immigrant, also with an M.A. from Stanford; Amazon, founded by the son of a Cuban immigrant with a degree from Princeton; and Costco, founded by the son of Canadian immigrants (San Diego City College) whose family emigrated from Romania. These companies alone posted a combined revenue of $1.4 trillion in fiscal year 2023, more than the gross domestic product of many nations. And immigrants are about 80 percent more likely to start a company than U.S.-born citizens.

    And that’s not to say someone else, in this instance the UK, hasn’t already tried the idea and screwed it up by being too generous. Britain has a scheme which allows most college grads to stay on for two years and work toward residency (as does in fact the U.S., it’s called “Optional Practical Training” with its own arcane set of regulations, available to almost all foreign students.)

    The UK Graduate Route, which is a post-study visa, allows graduates to stay and work in the UK for up to two years after finalizing their studies. The government estimates that this visa has attracted many migrants to the UK, with them often misusing their benefits. More than 40 percent of people coming to the country for employment purposes in 2023 came from India or Nigeria. Talks for new rules follow plans to ban British universities from accepting certain postgraduates, in an effort to reduce net migration in the UK, which is highly driven by international students.

    So there are lessons learned out there. Meanwhile, let’s not make the same mistake with college grads we made with relatives of earlier immigrants; this time let us separate the baby from the bathwater and get rid of the less valuable part. Instead of handing out green cards willy-nilly with each diploma, subject grads to a merit-based system, with points awarded to skills/majors in demand, accredited schools that rank well nationally, high GPAs, as well as English ability and proven entrepreneurial skills. Trump is close to right in singling out foreign-born college grads. We need only to tweak the system he proposes to pick out the very best America deserves.

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    Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

    Posted in Biden, Democracy, Post-Constitution America

    Misdirection! Hunter Biden Conviction Hides the Real Crimes

    June 26, 2024 // 31 Comments »

    Misdirection. That’s what you call it when a magician distracts you from looking at the real point of interest, waving his right hand in the air vigorously while his left slips the selected card into his jacket pocket. You’re fooled, but you’re satisfied. You even play along.

    Well, if you like magical misdirection, you must be very happy to see Hunter Biden convicted of lying about his drug use to illegally buy a gun, making him the first child of a sitting U.S. president to be convicted of a crime. Hunter was fully guilty, no doubt, confirmed by the rapid three-hour turnaround decison reached by the jury. He’ll face a similar fate in September when he stares down three felony and six misdemeanor tax offenses in California, alleging he failed to pay $1.4 million in taxes between 2016 and 2019 while spending millions more on drugs, escorts, exotic cars, and other lux items. He is unlikely to do time in any case, though you’ll hear uninformed pundits on the MSM bellow about maximum penalties in hopes of creating the illusion of parity between the Hunter and Trump convictions. See, there’s a felon in each family, the system is fair!

    The problem is that misdirection thing.

    No court is set to look at what Hunter did to amass his millions while a crack addict, and no court is set to look at the slimy connections between Hunter’s made-and-spent fortune and his dad, the once vice president and now president of the United States. A reasonable jury might conclude Hunter made his money off peddling influence to daddy, and that daddy at the very least passively played along, and thus a court of public opinion might wonder if that leaves Joe Biden unqualified to be president (if he ever was…)

    The story, if ever told in a court or elsewhere, will get ugly quickly as they say — one can sketch in the outlines even now. Hunter, desperately addicted to drugs and sex following his brother Beau’s death, to the point where he had a scummy affair with his dead brother’s widow, needed money badly. The world responded with a whisper in his fevered ear that Hunter could set up some consulting companies and create the appearance of selling access to his father, then vice president. A grieving dad, watching his last son fall into the pit of crack addiction, tries to humor the venture along until that gets too real over some shenanigans in the Ukraine and a looming China deal (“10 percent for the big guy,” read one email.) Dad pulls the plug on his end of the caper, but Hunter keeps selling, finding foreign yokels willing to pay for the illusion of access. Along the way he taints not only Joe but his uncle Jim Biden as well. Fueled by his addiction, Hunter never stops until finally things collapse completely and he is stopped.

    As you the voter, the real jury, consider the evidence, remember a few things. Joe Biden said of Hunter, “I have never spoken to my son about his overseas business dealings.” And during a debate with Donald Trump, Joe Biden dismissed his son’s laptop emails as disinformation from Russia. After becoming president, Joe said his son Hunter was innocent, even after Hunter pleaded guilty to tax evasion. None of that is true. Misdirection.

    This sordid story has credibility now in that in the course of the Hunter gun trial the contents of his laptop were validated by the FBI as real. The FBI of course knew for some time the laptop was real, and we explained here why a thoughtful outside observer would come to the same conclusion even without the FBI’s forensics. Hunter’s former business partner Tony Bobulinski confirmed his emails were legitimate months before the FBI. The New York Times agreed, reporting on an FBI criminal investigation into Hunter’s business and tax activities based in part on the contents of the laptop.

    Here’s what Hunter’s laptop revealed in our reading of its contents as made available to TAC and elsewhere. Hunter, with no previous experience in the energy field, joined the board of Ukrainian gas company Burisma at a salary of $83,000 a month. What was his actual job at Burisma? The question is important because on April 16, 2014, while Joe was vice president, he met with Hunter’s business partner, Devon Archer, at the White House. Five days later, Joe travelled to Ukraine to lobby for increased fracking. Burisma was one of the few companies licensed to frack in Ukraine. Burisma made hundreds of millions of dollars from Ukraine’s new policy. Burisma eventually paid more than $4,000,000 for Hunter’s and Archer’s board service.

    While Hunter and Archer were serving on Burisma’s board, Ukraine’s top prosecutor, Viktor Shokin, was investigating Burisma and its owner. In his official position as vice president, Biden demanded Ukraine fire Shokin, and threatened to withdraw one billion dollars in U.S. military aid if it did not do so. Shokin was fired.

    While serving on the Burisma board, Hunter and Archer sought meetings with senior State Department officials, including SecState John Kerry (Christopher Heinz, John Kerry’s son, is part of one of Hunter’s front companies) and then-Deputy Secretary of State Antony Blinken (Blinken coordinated the 51 intel officers’ letter that claimed Hunter’s laptop was likely Russian disinformation.) What did they all discuss? The reason to ask that question is because it appears whatever Hunter’s job description, his value to Burisma was perceived access to the Executive Branch. Joe was at least a passive participant in the scheme, maybe more than that. The most charitable reading of the sleazy saga is that Joe Biden, one of the most powerful men in the world, is a gullible idiot. At least that sounds better than “co-conspirator.”

    The laptop goes on to show Hunter, through a number of front companies, accepted money from foreign firms and moved that money to the U.S. where it was parceled out to other entities, including Joe’s brother Jim (Jim regularly invoiced Hunter for office expenses and employee costs, as well as a monthly retainer cost of some $68,000, plus other fees in the tens of thousands of dollars for unknown services.) It all smells bad — multi-million dollar transfers to LLCs without employees, residences used as business addresses, legal tricks shifting cash from Cyprus to the British Virgin Islands. Can Hunter explain why his fees traveled such circuitous routes? What did he pay Uncle Jim for, and why did Jim appear to return/kickback some of the money paid him?

    What is this money all about? in 2014, Hunter received $3.5 million from Elena Baturina, the richest woman in Russia and the widow of Yury Luzhkov, the former mayor of Moscow. Baturina became Russia’s only female billionaire when her company received a series of Moscow municipal contracts while her husband was mayor.

    The majority of the contents of Hunter’s laptop are a jumbled record of international business ventures. Outstanding in the haystack are a large number of wire transfers to and from clients. Those with traceable addresses appear to be mostly anonymous shell companies run out of lawyers’ offices, with no employees, and fuzzy public paper trails. A typical one involved $259,845 traveling on April 2, 2018 from Hudson West III in New York to a numbered account held by Cathay Bank in Asia. Hudson West was created by Hunter Biden’s own law firm, Owasco, with several Chinese nationals, including a Ye Jianming associate. Ye Jianming is chairman of CEFC China Energy, who reportedly had close ties to both the Chinese government and the PLA. He’s was arrested in China on corruption charges and has essentially been disappeared.

    A 2017 email chain involving Hunter brokering an ultimately failed deal for a new venture with old friend CEFC, the Chinese energy company, described a 10 percent set-aside for the “big guy,” whom former Hunter Biden partner Tony Bobulinski publicly identified as Joe Biden. Joe also took Hunter to China with him in December 2013 on Air Force 2, and met with Chinese leaders while Hunter tried to make deals on his own.

    There is a lot more but you get the picture. A lot of appearance of malarkey from a senior statesman like Joe who should have known better. In places like China and the Ukraine, where corruption is endemic, it is assumed the sons of powerful men have political access to their father. Hunter traded on those assumptions for millions of dollars, and Papa Joe stood by understanding what was happening. Every father wants to help his son, and we can imagine Hunter went to his dad time after time, pleading for just one more little favor to get past his sordid past. You know, for Beau.

    The emails are a multi-pronged series of pointers which deserve the scrutiny of a courtroom to see if there is a smoking gun. To dismiss them because they may be incomplete is to fail to understand the difference between evidence and conclusion. Let’s hope we learn the lesson before November 5.

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    Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

    Posted in Biden, Democracy, Post-Constitution America

    Biden’s Southern Border Political Sleight-of-Hand

    June 18, 2024 // 2 Comments »

    Joe Biden is playing voters for suckers. He thinks he can snap up their votes with some sleight-of-hand new policy on the southern border. This all comes cynically as the border is emerging as a major issue in the campaign for president; only 28 percent of voters approve of Biden’s handling of the matter so far, and voters overall mark it as their second biggest concern, after the economy. But why fix anything when you can just fake the rubes out?

    Biden took executive action earlier this month to turn away asylum seekers who cross the southern border illegally when the weekly average of daily border crossings exceeds 2,500 between ports of entry (it has exceeded that number consistently since Biden took office, averaging about 4,500.) Administration officials, reports The Hill, “walked a tightrope announcing the order, a forceful but targeted shift on asylum rights — one that administration officials said is not comparable to the Trump administration’s system-wide crackdowns.”

    Well, maybe. The president’s decree certainly rhymes with a 2018 Trump policy, invoking the same powers to deny people seeking asylum. Federal courts blocked that one. The American Civil Liberties Union says it will challenge the Biden ban as well.

    Otherwise, all well and good, except when you drill down a bit. For the last three years Biden policy allowed 4,500 or more asylum seekers to illegally cross the  border daily, seven days a week. That number meant the southern border alone produced a million immigrants every 200-some days, a significant number given otherwise only about one million legal Green Card-type immigrants are allowed into the U.S. each year. The border does not discriminate; in addition to the flood of poor Mexicans entering the U.S. this way, the in-flow from the southern border is chock-a-block with Serbs, Chinese, Central and South Americans, as well as Africans from a multitude of countries. Almost none of those people got there on their own, benefiting from organized crime and human traffickers to help them make the arduous journey from say Nigeria to Texas. It was worth it to most, as standard Green Card applications (except for spouses of American Citizens) can be backed up for years, decades for certain categories. Why wait when you can be one of 4,500 lucky daily winners? Reducing that 4,500 to 2,500 a day is good one guesses, as it means Biden policy only comes close to doubling immigrant numbers yearly.

    What was left untouched by the new executive order was the Biden method for handling those 2,500 claiming asylum.

    Humanitarian parole refers to a discretionary mechanism employed by the U.S. Citizenship and Immigration Service to allow individuals to remain in the United States on a (theoretically) temporary basis for urgent humanitarian reasons or significant public benefit. It was never intended to replace regular visas or Green Cards but rather to be a form of temporary relief.

    Prior to Biden, humanitarian parole was typically granted in cases involving medical treatment not available in the individual’s home country, urgent family needs, or situations where the person can contribute significantly to the public interest, say as an artist fleeing a repressive government. Pre-Biden, the decision to grant humanitarian parole was mostly made on a case-by-case basis.

    The previous two administrations averaged about 5,000 individually-selected cases per year, not per day as under Biden. Past uses of mass parole include the one-time flood of migrants after the Vietnam War (340,000 people) and the Mariel Boatlift (125,000) from Cuba. Every administration, Republican and Democratic, used parole in emergencies; none had made it the cornerstone of an ongoing mass migration program before Biden. Parole used this way is part of the asylum process which is being abused daily on the southern border.

    Asylum applicants must demonstrate if sent home they would be persecuted on account of race, religion, nationality, political opinion, or social group. The definition of those five protected grounds has varied based on American domestic politics. For example, since 1994, LGBT status has been a possible grounds of asylum. Victims of domestic violence were granted consideration for asylum under the Obama administration, rolled back under Trump. However, asylum never has been and was never intended to stretch to economic situations affecting blanket-like most everyone in a country. “Wanting a better life” has never been grounds for a legit asylum claim. Until Biden. Economic immigrants without legitimate claims to asylum have taken advantage of slow processing by American authorities. A Mexican man caught on the border who says he came just to work may be sent back almost immediately. However, should he make a claim to asylum, the U.S. is obligated to adjudicate his case, however frivolous.

    The 1996 Clinton Illegal Immigration Reform and Immigrant Responsibility Act requires those seeking asylum be detained while their cases are processed. But for logistical and political reasons, prior administrations simply released most asylum seekers into American society to wait. Asylum seekers become eligible for work authorization if their case has been pending for more than 150 days, as almost all do. Trump instead directed the letter of the law be followed, ending this catch-and-release system. He also negotiated for many asylum seekers to wait out their cases in Mexico instead of working in the U.S. Biden did away with Trump’s reforms.

    Biden’s new executive order also contains loopholes for unaccompanied minors, and those applying at a formal port of entry, who won’t count against the 2,500 daily limit. In May 2017, when Trump made an exception for minors, the number of unaccompanied children soared by 329 percent. The smugglers are quick to adjust to any changes in U.S. policy.

    Biden of course was equally quick to blame his opposition for the mess he created. While senior administration officials did not explicitly tie the timing of the executive order to the election, they argued the measure was a result of congressional Republicans’ inaction. “If Congress refuses to act, and if congressional Republicans refuse to act, the president is prepared to do so,” one official told reporters. The president and White House officials previously said it was up to Congress to enact changes at the border and suggested Biden’s hands were tied on the issues.  They never were.

    Republicans chastised Biden for waiting to take executive action on the border and argued this measure is too little, too late. They are correct. It made no sense for Biden to throw open the southern border to faux asylum claims in the first place. It made even less sense for him to maintain there was nothing he could do about the crisis he created, that it was up to Congress alone to fix it, when obviously the executive orders issued by Trump were always available, as well as the weak-tea of Biden’s own order. So, when angry Joe Biden says that there was nothing he could do about the southern border without Congress acting, he was lying. The border crisis is caused solely by Biden’s decision to employ humanitarian parole on a large scale, a decision that can be rescinded anytime. Reducing the daily influx of asylum claimants from 4,500 to 2,500 just months before the presidential election is indeed too little, too late.



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    Posted in Biden, Democracy, Post-Constitution America

    Assange Extradition Raises Questions

    June 12, 2024 // 7 Comments »

    A British court ruled Wikileaks founder Julian Assange can appeal his extradition to the U.S. How Assange’s case plays out may change both the way Espionage Act cases are defended and the deeper relationship among the Act, the 1A, and a free press.

    The U.S. charged Assange multiple times under the 1917 Espionage Act for an alleged conspiracy to take possession of and publish national defense information. Had the British court ruled in the U.S.’ favor, Assange would have exhausted all legal avenues in the UK. Instead, he can now fight the extradition to the U.S. from the relative safety of Britain.

    The allegations stem from 2010 when WikiLeaks released half a million classified documents focused on Iraq and Afghanistan that were leaked to the site by Chelsea Manning, an Army intel analyst. Included in the leak was video from Iraq showing American helicopters gunning down Iraqi civilians, later dramatized by the film Incident in New Baghdad. Assange’s legal team argues the case is a politically motivated form of state retaliation for embarrassing the United States.

    Following the charges by the U.S. government, Assange was granted asylum for seven years in the Ecuadorian embassy in London. Made to leave, Assange was then arrested by British authorities for skipping bail, and has spent the last five years in a dank British prison fighting extradition to the United States, His spouse calls it “punishment by process.”

    In February, Assange’s lawyers submitted grounds for a possible appeal. The High Court in response directed the U.S. government provide assurances: a) that Assange would not face the death penalty; b) that he would be treated no differently than a U.S. citizen; and c) that he would be protected under the First Amendment. The U.S. government provided such assurances in a letter. The British court was unconvinced, and will allow Assange to appeal the extradition request.

    Of the three conditions, the key issue is whether or not Julian Assange can raise an effective First Amendment defense against the Espionage Act. Could Assange claim, for example, that his right to publish the leaked materials was protected as a publisher and journalist under the 1A in the public interest?

    The Justice Department previously told a British court the First Amendment doesn’t apply to anyone “in relation to publication of illegally obtained national defense information giving the names of innocent sources to their grave and imminent risk of harm.” Use of a 1A public interest defense by Chelsea Manning was blocked and her attempts to speak to the American people directly were stymied by seeing her entire trial classified.

    “The short answer is that being able to ‘raise’ a defense is different than being able to ‘rely’ on one,” said former Assange attorney Jesselyn Radack, who heads the Whistleblower and Source Protection Program (WHISPeR, at Expose Facts, speaking with TAC. “In Espionage Act cases, the government has literally done motions to preclude the use of the words ‘First Amendment.’ I can easily see that happening here, as well as motions to preclude 1A related words like ‘journalist’ and ‘publisher.’ Assange can raise the First Amendment. He can raise a herd of goats if he wants. The better question is whether Assange would be allowed a 1A defense.”

    Under such circumstances any British court willing to accept a USG assurance Assange would have First Amendment rights in any practical sense is being played as a fool.

    But the Assange case begs a bigger question the British court might ask if it was concerned about fairness to Assange: why is it only him, and not outlets like the New York Times, which also published leaked material, on trial? Why not also the Guardian, the Washington Post, NBC News?

    Under the Espionage Act, Assange would be prohibited from offering a 1A-based public interest defense; his unauthorized possession of classified materials alone would ensure a guilty verdict, in that the Act does not distinguish between possession for journalistic purposes, and possession say with the intent to hand over secrets to Russian intelligence. Assange, as with the others prosecuted under the Espionage Act, would be found guilty and simultaneously be denied the chance to defend himself based on a free speech defense.

    Assange poses a dilemma for the United States in its ongoing muscle-tussle in balancing the power of the government to protect classified information, the guarantee of a free press in the First Amendment, and the broader concept of the need for an informed populace to challenge their government and make this democracy work in practice.

    At what point does the need for the people to know something outweigh any laws allowing the government to keep it from view? If punishment appears necessary, should the leaker be punished, should the journalist who publishes be punished, or should neither, or both? The questions become acute in the digital age, where physical documents no longer need to be copied one-by-one, and where publishing is far removed from the traditions, obstacles, safeguards, backdoor pressures, and restraint of traditional journalism.

    A complex history precedes Assange. In 1971 Daniel Ellsberg leaked the classified Pentagon Papers to the New York Times. The risks to the journalists were huge — no one had ever published such classified documents before, and the senior staff at the Times feared they would go to jail under the Espionage Act.

    Despite such pessimism, the Supreme Court handed down a landmark victory for the First Amendment in New York Times Company v. United States. The Times won the Pulitzer Prize. Ellsberg however was charged under the Espionage Act. His case was ultimately dismissed for gross governmental misconduct and illegal evidence gathering without the underlying issues being addressed, most prominently Ellsberg’s defense he was morally compelled to leak the classified information to the Times.

    But looking at the Times case through the lens of Wikileaks, University of Texas law professor Steve Vladeck is careful to point out “Although the First Amendment separately protects the freedom of speech and the freedom of the press… the Supreme Court has never suggested that the First Amendment might protect a right to disclose national security information. Yes, the Pentagon Papers case rejected a government effort to enjoin publication, but several of the Justices in their separate opinions specifically suggested that the government could prosecute the New York Times and the Washington Post after publication, under the Espionage Act.”

    In its simplest form, the Supreme Court left the door open for the government to prosecute both the leaker who takes the documents (by dismissing the case without setting a precedent) and the journalists who publish them (by focusing narrowly on prohibiting the government from exercising prior restraint.)

    What has happened since has been little more than a delicate dance around the 500 pound gorilla loose in the halls of democracy. The government aggressively prosecuted whistleblowers under the Espionage Act while choosing not to prosecute journalists for publishing what the whistleblowers hand over to them. Assange’s case stands as an outlier.

    Did Assange commit journalism? He wrote nothing alongside documents on Wikileaks, did no curating or culling, and redacted little information. Publishing in his case consisted simply uploading what had been supplied to him. It would be easy for the government to frame a case against Assange that set precedent he is not entitled to any First Amendment protections — clicking Upload isn’t publishing and Assange isn’t a journalist they could say. The simplest interpretation of the Espionage Act, that Assange willfully transmitted information relating to the national defense without authorization, would then apply. Guilty, the same as almost all of the leakers and other canaries in the D.C. coal mine.

    Yet like the Times, Wikileaks sidestepped the restraints of traditional journalism to bring with immediacy the raw material of history to the people. That is the root of an informed public, through a set of tools never before available until the Internet and Julian Assange created them.

    The British court needs to carefully weigh any faux U.S. promises of 1A rights for Assange, and ask itself instead: is he being singled out for punishment, criminalizing journalism? President Joe Biden is already considering an Australian government request to drop Julian Assange’s charges. The British court should stay the extradition and ultimately release Assange for doing nothing but what the New York Times and others have done before him.



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    Posted in Biden, Democracy, Post-Constitution America

    So Much for Lawfare? Trump Found Guilty and So What

    June 5, 2024 // 15 Comments »

    A New York jury convicted Donald Trump of 34 counts of falsifying business records in connection with buying the silence of a porn star. He is the first American president to become a felon. The verdict is not unexpected from the deep blue Democratic enclave of Manhattan; the larger question is if lawfare will defeat Trump on November 5.

    The jury found Trump faked records (hiding hush payments as “legal expenses”) to conceal the purpose of money given to the onetime attorney Michael Cohen. Trump was actually reimbursing Cohen for a $130,000 hush-money deal struck with porn star Stormy Daniels, to silence her account of an affair with Trump. The affair was in 2006, a decade before Trump was elected president. The falsification of business records took place in 2017, after Trump was already in the White House and thus could not have influenced the election. He was found guilty nonetheless.

    For the jury to reach its unanimous decision of guilt on all 34 charges, the key was believing two witnesses over Trump.

    There are only two people on earth who know if an affair actually took place between Stormy and Trump. Trump said no, Stormy said yes and the jury agreed with her, fully absent of any further actual evidence. Daniels benefitted greatly from her claims to having the affair, and violated a nondisclosure agreement she voluntarily signed and accepted money for, to achieve her goals. “Proving” the affair was the base upon which the rest of the case to find Trump guilty was made.

    It is important to understand that having an affair and paying off someone to remain quiet about it are not crimes, even for a presidential candidate. Nonetheless, the prosecutor claimed in closing arguments Trump “hoodwinked the American voter” with a conspiracy to influence the 2016 election. In addition to those who may have benefitted from the plan, “all roads lead to the man who benefited the most: Donald Trump,” Joshua Steinglass told the jury.

    But the witness whose testimony was fully believed by the jury, and whose testimony will see Trump receive a criminal penalty when he is sentenced on July 11 (four days before the Republican National Convention!) is Michael Cohen. In the total absence of physical evidence and in the face of Trump’s claims to the contrary, Cohen served as connective tissue for many disparate elements. It was Cohen who claimed Trump masterminded the plan to hide the payments to Stormy. It was Cohen who said the 34 checks and invoices, only nine of which were signed by Trump himself, were not for legal expenses as they were labeled but were to reimburse Cohen for paying off Stormy. Stormy’s name appeared on none of the 34 documents, a fact which instead of exonerating Trump became under Michael Cohen’s testimony the linchpin of the conspiracy to falsify business records. Todd Blanche, a lawyer for Trump, told jurors the case hinged on the testimony of Michael Cohen, whom he called “the greatest liar of all time.”

    Nearly incredibly (Trump’s defense team called Cohen a “walking reasonable doubt”) the jury believed Cohen based on nothing but his good word. This is despite Cohen having gone to jail for perjury, been caught lying to Congress, being disbarred, and actually telling a lie during his testimony at the instant trial. It remains difficult to understand how a jury could objectively grant so much credence to Cohen in the face of his record of lying to his own advantage. Every critical element of the case came down to whether his word could be trusted. That is what convicted Trump. You might have thought Robert De Niro was leading the deliberations.

    There’s more. For jurors to have found Trump guilty of all 34 counts, they must have concluded beyond a reasonable doubt not only that Trump falsified or caused the falsification of business records “with intent to defraud” but also that he did so with the intent to commit or conceal another crime. That second element — the intent to commit or conceal another crime — elevates the charges to felonies and got around the statue of limitations that usually governs misdemeanors such as false business records. To reach this conclusion the jury had to also believe Cohen that Trump’s primary intent in all this was election influence and not, as Trump claimed, to hide the affair from his family.

    There are many questions surrounding the jury’s verdict, and the fact pattern of the case itself, all of which should come out in Trump’s inevitable appeal. With that in mind, the actual legal conclusion of this case is far into the future, almost certainly after the November 5 election. But that begs the more important question: does any of this matter to voters? This is lawfare, not justice, after all. “The real verdict is going to be November 5, by the people,” said Trump.

    CNN, for example, concluded “Donald Trump, who built a mystique as the brash epitome of power, has never been more powerless to dictate his own fate. His reputation, future, and even perhaps the White House’s destiny, [was] placed in the hands of 12 citizens of his native New York City, proving that not even once-and-possibly future commanders in chief are above the law.”

    So a victory for Democratic lawfare? Maybe not. Trump remains eligible to campaign for the presidency and serve if elected. None of the other lawfare shots is likely to conclude before November.

    So does it matter? A majority of registered voters said a guilty verdict in Trump’s trial would make no difference in their vote in the 2024 presidential election. Across all registered voters, 67 percent said a guilty verdict would have no effect on their vote, while 17 percent say they would be less likely to vote for him and 15 percent say they would be more likely, according to the NPR/PBS News Hour/Marist poll released before the verdict. An ABC News poll earlier this month showed 80 percent of Trump’s supporters say they would stick with him even if he’s convicted of a felony in this case. Some say they would either reconsider their support (16 percent) or withdraw it (four percent.) Similar polls followed Trump’s defeat in New York courts over supposed real estate fraud.

    And Biden knows it. A Biden campaign spokesman said Trump’s conviction showed “There is still only one way to keep Donald Trump out of the Oval Office: at the ballot box. Convicted felon or not, Trump will be the Republican nominee for president.”

    As in other Third World countries where the judiciary is used to smite political opponents, let us hope the people can see the truth, as they still hold the final card to be played. The Deep State has tried from day one to destroy Donald Trump — Russian collusion and dossier hoax, pee tape accusation, Mueller hearing and report, Emoluments Clause, various calls for extra-legal interventions and coups, Alfa Bank hoax, Impeachment I, Impeachment II, demands Mike Pence invoke the 25th Amendment, MSM blackout of Hunter Biden laptop story, Twitter purge of conservative accounts, FBI raid on Mar-a-Lago, Letitia James prosecution “show me the man, and I’ll show you the crime” with no victims, no monetary loss but an effort to bankrupt Trump with civil judgment, Colorado attempt to remove Trump from state ballots over the 14th Amendment, and false statements Trump will “take revenge,” “demand retribution,” ensure a “bloodbath,” and “end democracy” (America’s last election if he wins.)

    Trump meanwhile has characterized this trial, and the others, as unjust, rigged, lawfare pure and simple. He has kept the voters’ eyes not on who he is (his personal life has been baked-in to the vote long ago) but on what he represents to the electorate. As such, it is hard to see this guilty conviction, however unfair, as mattering too much come November.

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    Posted in Biden, Democracy, Post-Constitution America

    Burn the Witches of Gaza

    June 3, 2024 // 6 Comments »

    My conundrum begins with the base concept that there is no such thing as hate speech according to the First Amendment. I believe something very different than the encampment protestors at Columbia. But I believe in defending their right to protest legally just as much. Makes for some uncomfortable times, but it’s the thought that counts.

    There are no laws against “hate speech.” Some people have developed an alternate understanding of free speech, with students in particular believing “offensive” speech should not be protected, particularly when the offense is directed at groups defined by race, religion, ethnicity, gender or sexual orientation. But the 1A says a speaker can call people names, and insult them by their religion. What many people think and say is hateful. It is in fact carefully thought out to inspire hate, to promote hate, to appeal to crude and base instincts. Indeed, that is the point. Free speech means just that, with any limited restrictions content-neutral. So there’s nothing in the law per se that prevents people from holding and/or shouting anti-Semitic views.

    BONUS: Much of what follows applies to Donald Trump’s own statements to the mob on January 6. His so-called inflammatory statements that morning are protected by much of the same law as the Gaza encampment people. It should make a college age ACLU donor proud to know her $25 contribution with Mom’s credit card helps the Gaza encampment people, Israel supporters, and Trump.

    But what about when that anti-Semitism extends to calls to violence, horrible stuff like signs asking for counter-protesters to become Hamas’ next victims? Brandenburg v. Ohio precludes speech from being sanctioned as incitement to violence unless (1) the speech explicitly or implicitly encouraged the use of violence or lawless action; (2) the speaker intends that their speech will result in the use of violence or lawless action, and (3) the important one: imminent use of violence or lawless action is the likely result of the speech. A hostile reaction of a crowd does not transform protected speech into incitement. Listeners’ reaction to speech is thus not a content-neutral basis for regulation, or for taking an enforcement action against a speaker.

    A second type of speech that is categorically excluded from First Amendment protection and often erroneously labeled hate speech are “fighting words.” This category of unprotected speech encompasses words that when spoken aloud instantly “inflict injury or tend to incite an immediate breach of the peace.” No advocacy can constitute fighting words unless it is “likely to provoke the average person to retaliation.” Offensive statements made generally to a crowd are not excluded from First Amendment protection; the insult or offense must be directed specifically at an individual.

    The upshot is that apart from some very narrow definitions of violence-inducing words, the obligation exists to the concept of free speech independent of the content of that speech. This is also one of the most fundamental precepts of free speech in a democracy. There need be no protections for saying things that people agree with, things that are not challenging or debatable or offensive; free speech is not really needed for the weather or sports.

    But what about anti-Semitic speech such as “From the river to the sea [wipe out the Jews]?” Isn’t this the equivalent of that bit about shouting fire in a crowded theatre?

    The Fire! line comes from the Supreme Court decision in Schenck v. United States and is often cited as justification for limiting free speech. Justice Oliver Wendell Holmes said “the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger.”

    The full decision says the First Amendment doesn’t protect false speech that meets three conditions: 1) the speech must be demonstrably false; 2) it must be likely to cause real harm, not just offense or hurt feelings, and 3) must do so immediately, a “clear and present danger.” This interpretation of the First Amendment has been adjudicated to impose a high barrier to restrictions on what can be blocked or banned, and over the years has allowed flags to be burned in front of veterans and Nazis to march among Holocaust survivors, and yeah, the “river to the sea” thing. None of this extends to trashing a building or blocking a public highway.

    Schenck was what jurists call bad law, in that it sought to use the Espionage Act against a Socialist pamphleteer, to stop free speech, not protect it (in other words, the pamphleteer was determined to be a clear and present danger in wartime.) The case was eventually overturned. The Supreme Court has set a very high bar against restricting speech based on the idea that what is being said leading to violence.

    But colleges and universities are not the government. Many are private institutions like X and Facebook that are not subject to the 1A. So shouldn’t they have the right to censor their students, the way X can censor tweets and Facebook block users?

    Academic administrators like to rely on the idea of “time, place, and manner” in their restrictions on speech. But public funding invokes the First Amendment for schools, though obviously if a school exists that accepts zero public dollars that’s another story. The legal argument extending the First Amendment to institutions accepting Federal funding is Rosenberger v. University of Virginia, where the Supreme Court held that the University could not fund all student publications except those addressing religious views because such a policy violated the institution’s constitutional obligation not to discriminate against particular viewpoints. Universities like Columbia, which accept pubic funds, are avoiding the 1A by claiming their protesting students are trespassing, or violating school Codes of Ethics that specify time, place, and manner of protests. Whether the latter would stand up in court is an open question.

    There is no legal or other justification for banning speech based on who it may offend or threaten, in fact, quite the opposite. Justice Oliver Wendell Holmes declared unpopular ideas should have their opportunity to compete in the “marketplace of ideas.” Free speech is not an end, it is a means, in a democracy. Even in the weeks before finals. It is messy as hell, and it is our essential defense against fascism, whether from the left or the right.


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    Posted in Biden, Democracy, Post-Constitution America

    Trump May Duck Obstruction Charges with SCOTUS Help

    May 30, 2024 // 9 Comments »

    The Department of Justice charged approximately 350 people under the obstruction statute for their role in J6. One of them is Donald Trump. All of them, including Trump, may see those charges dropped based on an expected Supreme Court ruling. The ruling, if favorable, would also significantly protect First Amendment rights.

    In between the start of Trump’s criminal “hush money” trial in New York, and oral arguments in his immunity case, and before his two J6 cases go forward, the Supreme Court earlier this month heard oral arguments in the case of Fischer v. United States. Fischer (brought by defendant Joseph Fischer, a former police officer who is seeking to dismiss the charge accusing him of obstructing an official proceeding, specifically the certification by Congress of Joe Biden’s election victory on J6) involves a federal law —  Title 18, Section 1512(c)(2)  — which provides anyone who “obstructs, influences, or impedes any official proceeding, or attempts to do so” commits a felony and can be imprisoned for a maximum of 20 years. The law, which was passed in the shadow of the Enron scandal and was designed to speak to document fraud and altering evidence, nonetheless is for the first time ever being repurposed against J6 defendants, claiming their protest/riot obstructed the business of Congress. This is a novel use of the law and is being challenged in the instant case. Typically illegal or disruptive protesting is a misdemeanor punishable by only a year or less in prison.

    Though not mentioned by name in the SCOTUS case, Trump enters the picture because he is charged with obstruction and conspiracy to obstruct, with the government claiming he worked in a variety of forms to overturn the 2020 election and make himself president for a second term. One aspect of this effort was Trump’s efforts to “exploit” the Capitol riot to his own ends (Tellingly, Trump is not charged with incitement or insurrection, crimes of their own with very specific legal definitions) from which the obstruction charge arises. Specifically, the indictment says “Donald J. Trump did knowingly combine, conspire, confederate, and agree with co-conspirators, known and unknown to the Grand Jury, to corruptly obstruct and impede an official proceeding, that is, the certification of the electoral vote.”

    As Justice Alito put it, “What happened on January 6 was very, very serious,” but we need to figure out the “outer reaches of the statute.” Several other justices expressed concerns about people being charged with a felony for what Alito called “minor impediments,” such as if a heckler forced a proceeding to be delayed for a few minutes or if street protesters made it more difficult for members of Congress to enter the Capitol. The concern appeared to be that people who engage in minimally disruptive First Amendment-protected political protests could be charged with a very serious felony, something that rubs raw against the 1A. Alito continued: “Yesterday protestors blocked the Golden Gate Bridge in San Francisco and disrupted traffic in San Francisco. What if something similar to that happened all around the Capitol so… all the bridges from Virginia were blocked, and members from Virginia who needed to appear at a hearing couldn’t get there or were delayed in getting there? Would that be a violation of this provision?”

    “Would a sit-in that disrupts a trial or access to a federal courthouse qualify?” Justice Gorsuch asked. “Would a heckler in today’s audience qualify, or at the State of the Union address? Would pulling a fire alarm before a vote qualify for 20 years in federal prison?” Note Rep. Jamaal Bowman (D-N.Y.) pulled a fire alarm in the Capitol without punishment just before a vote; for protests inside the Court itself, the Justice Department has never charged any serious offenses.

    Justice Thomas asked whether the government was engaging in a kind of selective prosecution. “There have been many violent protests that have interfered with proceedings,” he said. “Has the government applied this provision to other protests?” The answer is no.

    Justice Coney Barrett asked how to distinguish the attack on the Capitol from other actions that have disrupted official proceedings. “Tell me why I shouldn’t be concerned about the breadth of the government’s reading?” she asked. Barrett said she was “concerned” the law as applied to the J6 defendants might cover some conduct protected by the First Amendment. One of Fischer’s attorneys said the government’s reading of the obstruction statute will “chill” protected activities. “People are going to worry about the kinds of protest they engage in, even if they’re peaceful, because the government has this weapon.

    Changes are already underway in anticipation the Supreme Court will say J6 defendants cannot be charged with obstruction. Over the past several weeks, federal judges agreed to release three defendants who were serving prison terms because of the obstruction law, saying the defendants could wait at home as the court determined whether the law should have been used to keep them locked up. Another 60 cases, including Jacob Chansley, the QAnon shaman wearing a fur-lined headdress with horns, of those already serving time could also be affected. Still, a reversal of the obstruction of an official proceeding charge would not affect the majority of the 1,350 defendants in J6 riot cases, most of whom are charged either with violent felony offenses or with misdemeanor violations such as trespassing or disorderly conduct at the Capitol.

    Prosecutors have also adjusted; there are currently no defendants facing only the obstruction charge, meaning even if the obstruction law is removed, there would not be any cases that would dismiss entirely. Joseph Fischer, the current SCOTUS case’s namesake, for example, faces six other charges in addition to obstruction. Some lower court judges have already signaled they would increase the sentences stemming from other charges if the obstruction count was not available to them. For example, a judge could increase a defendant’s total time in prison by imposing consecutive, not concurrent, terms on misdemeanor charges.

    Though there remains a convoluted interpretation of the law under which Trump could still be charged with obstruction even if SCOTUS rules in favor of Fischer and the charges against him are dismissed, it is likely that two of the four J6-related charges against Trump would have to be dropped if the Supreme Court rules in favor of Fischer in late June.

    But never mind Trump. At larger issue here is taking away a nasty legal tool the government can use to suppress protest and thus speech. If the Court rules against Fischer, it leaves the window open to future misuses. For example, if protesters sitting in a road prevented a citizen from getting to jury duty or voting in a local election, they could potentially be charged under this law. It would make it easy for the government to suppress dissent by finding someone inconvenienced by a protest as being involved in an “official proceeding.” With no limiting principle, as the Court is trying to establish in Fischer, the obstruction could be applied abusively as a dragnet by prosecutors to untold types of otherwise legal conduct.

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    Posted in Biden, Democracy, Post-Constitution America

    Iranian Negotiating Door Slams Shut (Again)

    // 1 Comment »

    Republican or Democrat, one of the most amazing things about Washington is its ability — almost willingness — to make the same foreign policy mistakes over and over. Take Iran. The U.S. has antagonized Iran consistently for the past three decades, doing the same thing over and over hoping for different results (a standard definition of mental illness.) Yet in response to Iranian-backed militias in 2024, what does America do? Bomb again, in Yemen, Iraq, and environs.

    The bombing is despite a clear history that for every problem solved a new one emerges. Saddam was the first major Iraqi target of the modern age, having fallen from American grace following the Iran-Iraq war in which the U.S. originally sided with Iraq. Bombing Saddam lead to, over a decade or so, Al-Qaeda in Iraq followed by ISIS in Iraq followed by Iranian militias fighting ISIS alongside the U.S. in Iraq followed by Iranian ascendancy in Iraq as America retreated from its failed invasion of 2003. It can get complicated keeping track of all the players (remember the Yazidis, the casus belli of America’s return to Iraq after the 2010 withdrawal?) But if you want to keep it simple, try this: the U.S. remains at war in Iraq as a way of pushing back on Iranian influence which was enabled by U.S. actions. Got it?

    Or even simpler: unless the U.S. is willing to negotiate directly with the Iranians, acknowledging their role as a regional power, the problems of Iranian ascendency are not going away. Every day the U.S. thinks it can control Iran by bombing only grants Tehran another day to enhance its nuclear program and grow as a threat to Israel. With this militaristic history of bombing failing as obviously as it has, why has diplomacy never taken hold?

    Leaving aside the long, bad history between the two countries leading up to the takeover of the U.S. embassy in Tehran in 1979, the biggest impediment to full and complete negotiations with Iran is that both nations, America and Iran, are ruled by ideological leaders who open the diplomatic door only to find their adversary’s new leaders are trapped by their own ideology into slamming shut the door of possibilities each time it squeaks open.

    Start with the election of President Mohammad Khatami in 1997, which led to a brief period of relative moderation U.S.-Iran relations. Khatami advocated for a more open dialogue with the West. In spring 2003, Javad Zarif, then Iran’s ambassador to the United Nations, proposed talks on the nuclear problem and on Iranian-Israeli relations. Look at things from an Iranian perspective: in 2001 the United States had overrun Iranian enemy the Taliban in Afghanistan, leaving a powerful and then-still victorious American military on Iran’s eastern border. The initial succes of the American invasion in Iraq in 2003, and the talk of eventually routing that invasion force into Syria and Lebanon as a next step, meant the U.S. sat astride Iran’s western border as well. The attitude out of Washington was bellicose (“Axis of Evil” and all that.) That Iran’s overture might have been driven by fear it would suffer Iraq’s fate, mattered little. The door to serious negotiations was wide open.

    Due to hubris and perhaps just plain diplomatic clumsiness (the State Department was being dismissed in 2003 as hardly necessary, Secretary of Defense Donald Rumsfeld calling it sarcastically “the department of nice”) the Bush administration ideologues slammed shut the door on Iran. They foresaw, tragically, wrongly, a quick end of war in Iraq and chance to spank Iran properly once that was out of the way. In 2005, Khatami was swept out of office by hard-liner Mahmoud Ahmadinejad, dashing any hopes for a broader rapprochement.

    In the 2013 elections another moderate, Hassan Rouhani, was elected president and Zarif was back in as foreign minister. This time, the United States under an ideologue of its own, Barack Obama, was paying attention. In 2015, the Obama and Rouhani administrations negotiated a sloppy nuclear arms agreement (the Joint Comprehensive Plan of Action) along with the European Union, Russia, and China in exchange for sanctions relief. Zarif indicated the nuclear deal could lead to further agreements between Tehran and Washington, which may have included some positive movement on the status of Israel. The trouble was written on the wall as Obama failed to get widespread U.S. government buy-in, and worked to hold the agreement together at the end of his own administration.

    Then came Donald Trump, an ideologue for sure, who was ready to dismantle Obama’s nascent agreement with Iran. Trump also listened too closely to Israeli Prime Minister Benjamin Netanyahu, and pulled out of the nuclear agreement and slapped harsh sanctions (the “maximum pressure” campaign) on Iran as the creaky door to negotiations hit his backside on the way out. Tehran in turn announced it would no longer adhere to limits on producing and stockpiling plutonium or highly enriched uranium in a march toward becoming a nuclear threshold state. One can only speculate how close Netanyahu came to convincing Trump to join Israel in striking Iranian nuclear facilities.

    Joe Biden ran for president in 2020 on a promise to rejoin the nuclear pact, describing Trump’s Iran strategy as a “self-inflicted disaster.” He charged Trump with upping the odds of a military confrontation by “walking away from diplomacy” with Tehran. Biden’s comments came only hours after Iran’s hardline military claimed responsibility for shooting down an American drone, which it claimed violated Iranian airspace. Biden’s statement also followed an announcement from Iran’s Atomic Energy Organization that it would breach within the next 10 days the uranium stockpile limits established by Obama’s 2015 multinational nuclear deal.

    Despite all this as prologue, after Biden was elected, Zarif, back in power, said if Washington rejoined the Obama nuclear pact, Iran would return to compliance with it. The next month, Rouhani repeated the promise. But it became clear Biden’s was not ready to rejoin the deal. In his confirmation hearings, Biden’s nominee as Secretary of State Antony Blinken said that the United States was a “long way” from reviving the pact and would have to see first what Iran would agree to do in exchange. At a 2022 midterm election rally, Biden announced the nuclear deal was “dead.” The issue remains there today, fully a non-starter even as relations between Washington and Tehran move closer to direct conflict.

    There are plenty of Houthis to kill, and nearly immeasurable sites of relatively cheap drone launchers to blow up. The U.S. has had a lot of practice and is good at it to the point it is almost bullying. Iran is certainly willing to fight to the last non-Iranian militiaman. But decades of bombing have failed to change Iran’s behavior. With a sordid history of ideologues on both sides slamming shut the door to negotiations, we must still understand negotiations are the only route to resolving the current problems in the Red Sea. And in the meantime we are still left with the original question: what will be different about bombing this time?

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    Posted in Biden, Democracy, Post-Constitution America

    We Didn’t Start the Fire

    May 28, 2024 // 5 Comments »

    There has been an unprecedented effort to destroy Donald Trump rather than defeat him at the polls. Those concerned about democracy being in danger need only look at the list of efforts to destroy him which began before his first election, continued with gusto and anger during his term, and the lawfare episodes which followed Trump’s departure from office.

    All of this is unprecedented in American politics (albeit all too common in third world politics) and itself threatening. Trump almost seems to grow stronger with controversy but what “normal” candidate would want to run for president knowing they would be exposed to such efforts not just to beat them with votes but to crush them as human beings? With apologies to Billy Joel‘s “We Didn’t Start the Fire” let’s take a look back…

    Russian collusion and dossier hoax

    Pee tape accusation

    Obama’s CIA asked foreign intel agencies to spy on Trump campaign

    2016 post-election effort to turn state electors into “faithless Hamilton electors” to select Hillary

    Mueller hearing and report

    Efforts to use the Emoluments Clause against Trump because of his hotels

    Various calls from military officers and analysts for extra-legal interventions and coups

    Alfa Bank ping hoax

    “Drink bleach” hoax

    Soldiers are “Suckers” D-Day hoax

    “Bloodbath” hoax

    The wearing diaper hoax

    Claims Trump violated British law with his Scottish golf course

    Claims U.S. Air Force personnel en route to the Middle East illegally stayed at the Scottish golf course on per diem hoax

    In Helsinki and elsewhere Trump gave away intelligence info to Putin hoax

    Putin is Trump’s spy handler hoax and Trump has been an agent since the 1980s

    Celebrities’ Twitter contest about the best way to decapitate Trump

    Mark Milley telephone call to his Chinese counterpart about who is in charge of America’s military

    Antifa/BLM riots and effort to storm the White House grounds

    Trump violates Posse Comitatus hoax after BLM riot

    Impeachment I

    Impeachment II

    Cassidy Hutchinson lying about Trump lunging for the steering wheel to take control of his limo from the Secret Service on January 6

    Demands Mike Pence invoke the 25th Amendment

    Trump is mentally ill claims by various medical professionals hoax

    “Experts are desperate to warn the public”: Hundreds sign Dr. John Gartner’s Trump dementia petition

    Hunter Biden laptop “Russian disinformation” hoax supported by Joe Biden

    “51 intelligence authorities” ruse to help elect Joe Biden

    MSM blackout of Hunter Biden laptop story

    Twitter purge of conservative accounts

    FBI using Twitter and Facebook to suppress unwanted news

    J6 “insurrection” where “five police officers were killed” lie

    The murder of Ashli Babbitt

    The 2020 alleged “missing ballots”

    E. Jean Carroll lawsuit(s)

    FBI raid on Mar-a-Lago

    Letitia James prosecution “show me the man, and I’ll show you the crime” with no victims, no monetary loss

    Effort to bankrupt Trump with civil judgment

    Alvin Bragg bootstrapping off an inert federal suit over Stormy Daniels “hush money” with perjurer Michael Cohen as star witness

    Fani Willis/Nathan Wade Georgia pretrial affair

    Jack Smith’s federal 2020 election and January 6 case

    Colorado, etc., attempt to remove Trump from state ballots over 14th Amendment.

    “Supreme Court ruling darkens critics’ hopes for a judicial curb on Trump,” wrote the Washington Post.

    Slate writes “we need to stop deluding ourselves that a majority of the Supreme Court sees the same political emergency that many of us do in terms of the threat Trump poses to American democracy.”

    Fake belief Nikki Haley or a No Labels candidate will emerge to beat Trump

    Trump will “take revenge,” “demand retribution,” ensure a “bloodbath,” and “end democracy” (America’s last election if he wins)

    Bernie Sanders said in a recent video: “If Donald Trump is elected again, it is likely…that the almost 250-year experiment of American democracy is all but over.”

    Vanity Fair wrote “If you don’t take the talk about Trump’s dismantling of democracy with utter seriousness, then just f*ck around and find out.”

    Kamala Harris called Donald Trump a “threat to democracy and fundamental freedoms.”

    Claims Trump will incite political violence and insurrection if he loses

    Constant calls to pack the Supreme Court (after the Left lost the majority), to end the filibuster (when Democrats again control the Senate), to add two new states (provided they are DC and Puerto Rico) and four new senators, and to end the Electoral College if Dems lose the presidential election again.


    The take-away from all this is how much of the effort to destroy Trump would not have been possible without the active participation of the mainstream media. Even leaving aside organizations like MSNBC, which seem Goebbels-like under the direct control of the Deep State and Democratic party, the list above shows much more than “collusion” between the Democrats and the media, it shows participation. None of the “hoaxes,” from the massive effort expended on the Russia story to the almost silly tirades when Trump uses a word like “bloodbath,” would have been possible without the active participation of the media in promoting and shouting out the “story.”

    Perhaps the most compact example would be the 51 former intelligence officials claiming Hunter Biden’s laptop looked like Russian disinformation. The group put out a press release but it took a three-way punch to make it effective in the 2020 campaign. Punch one was the media dissemination without verification of the accusations. Punch two was Twitter in the particular and the rest of the media in general deep-sixing the laptop story and failing to even lift a finger in investigation. Punch three to complete the circle was Candidate Biden repeating the accusations as near-fact in one of his debates with Trump. How could he lose?

    He didn’t. And that is the real takeaway here, the need to remain ever-vigilant against the misinformation machinations of the Deep State and the Dems and the Media as we edge closer to the presidential election this November.


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    Posted in Biden, Democracy, Post-Constitution America

    Fear: The End of America is Near, Journalists Say

    May 2, 2024 // 30 Comments »

    Take a dip in the murky waters of recent Trump Apocalypse journalism — it says there’s gonna be a civil war and dictatorship. But don’t worry, it’s just the politics of fear.

    In a scary article subtitled “Donald Trump is warning that 2024 could be America’s last election,” The National Review alerts us if Trump wins America is pretty much done being a democracy. “If we don’t win on November 5, I think our country is going to cease to exist. It could be the last election we ever have. I actually mean that,” Trump said out loud, so it could not be hyperbole, busting the chops of the mass media like a smart-aleck guy from Queens might do, or throwing red meat to his unwashed supporters like a wily candidate might do. And of course Trump lost in 2020 and the democracy muddled on.

    After that in The National Review you get the standard A.I.-generated list of bad Things Trump has said: “He has claimed that he wants to be a dictator, but only on ‘day one,’ and plans to install his legal allies at all levels of government. And his Cabinet? It’s sure to be full of ideologues, immigration hard-liners, and outright fascists. Even conservative judges claim he’ll shred the legal system… It might not be a stretch to suggest that Trump could plan another January 6–type event if he loses. After all, only months prior to the Capitol insurrection, he urged the Proud Boys to ‘stand back and stand by’ on a debate stage.”

    In a recent The New Republic, one writer imagined possible election outcomes, concluding “The election cycle either ends in chaos and violence, balkanization, or a descent into a modern theocratic fascist dystopia.”

    And what politics of fear round-up of Trump Terror Titillation would be complete without his misquoted out-of-context quote “Now if I don’t get elected, it’s gonna be a bloodbath for the whole—that’s gonna be the least of it. It’s going to be a bloodbath for the country.” Somewhere after that comes a mention of how our system of bypassing the popular vote in favor of the Electoral College (in place some 230 years) is undemocratic even if it has resulted in a democracy each and every time it has been used.

    Then there are the Christian nationalists, who are supposedly increasingly calling for “dual sovereignty” and implementation of “a Scripture-based system of government whereby Christ-ordained ‘civil magistrates’ exercise authority over the American public” according to a manifesto made public. The result is a United States that is one country in name only. “Christian Nationalism” is supposedly a priority for a second Trump term. This is quite an ambitious goal for Trump, given that the only lasting social policy he is remembered for (Dobbs) came from the Supreme Court, acting in a standard democratic matter, not any Trump-sponsored legislation or dictaat.

    Speaking of democracy being used to destroy democracy, Trump Apocalyptic writers do love less-well-known Constitutional passages like the Twelfth Amendment. This starts with the Speaker of the House refusing to certify election results which show a Biden victory. Then the Twelfth Amendment kicks in to decide the election. This lets the House of Representatives—the one elected in November which might be majority or even overwhelmingly Republican — determine the outcome, with each state getting one vote. If things don’t work out for Trump this way, then J6 x 100, yadda yadda.

    And they do love invoking the Insurrection Act, something Trump actually never did in his four years. “If this results in fatalities and mass detentions,” says The National Review, “it will exacerbate the situation, leading to many people on both the left and right concluding violence is the only viable option for change, resistance, or as a response to resistance.” The New Republic believes “Right-wing elements have long been itching to use violence to put ‘those people’ in their place” so watch out when you take the dog out for a walk.

    And most of that is horror tales if Trump loses, or gerrymanders a win. What if he actually wins outright and overwhelmingly (aka “the will of the people” but oh, never mind…)?

    The New Republic leads again, stating “Trump will absolutely let his team attempt to implement Christian nationalism across the U.S. and use every means available to achieve its vision of an America with no immigrants, no trans people, no Muslims, no abortion, no birth control, Russian-style ‘Don’t Say Gay laws,’ license to discriminate based on religion, and all government education funding going to religious schools. Blue states will try to resist this and invoke the same states’ rights and ‘dual sovereignty’ arguments, but it’s unlikely they will succeed due to conservative bias on the Supreme Court and the Trump administration’s willingness to blow off court rulings it doesn’t like. If Trump goes straight to a massacre via the Insurrection Act, civil war is on the table. If Trump manages to bring blue states to heel via legal means, and resistance is insufficient to compel blue state governors to refuse to comply, then we end up with fascist, theocratic, hereditary dictatorship.”

    In short, says the Washington Post, “a Trump dictatorship is increasingly inevitable. We should stop pretending.”

    Whew. Once you step across the line into writing about Trump dictatorships and Christian nationalism as living, breathing threats, things get pretty crazy pretty fast. Why is this?

    Occam’s Razor says this is all hullaballoo, pure malarkey, with tabloid-jealous writers doing it for the most clicks and dopamine hits, trying to outdo one another trying to whip up fear of Trump. It is good for business, and very easy to do. Freed from the old-school journalism restraints of having to muster facts to support opinions, anything — including imagining a civil war — is possible.

    A second possibility is the journalists who write articles such as these are an extreme edge of a broader Democratic strategy of scaring people into not voting for Trump. Scare votes have long been a popular strategy, from the racist propaganda in post-bellum South about protecting against politicians who would integrate society, to the famous Lyndon Johnson “daisy petals” commercial calling out his opponent as a nuclear monster ready to start WWIII, to Willie Horton, and of course to 2016’s “Trump is a Russian Spy.” The current spate of articles have all the hallmarks of traditional fear politics, with a particularly heavy dose of “Framing the Opposition.” Political ads often frame opponents as dangerous or unfit for office, playing on fears of what might happen if they were to gain power. This can be seen as a desperate move, given how they contribute to a climate of distrust and polarization within society.

    To be fair, lastly it is possible that the writers actually believe what they are writing, that we are steps away from the apocalypse of democracy. But you don’t believe that, do you?

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    Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

    Posted in Biden, Democracy, Post-Constitution America

    It Comes Down to Intent (Stormy Weather)

    April 30, 2024 // 5 Comments »

    The critical element in the Trump “hush money” trial and the factor most likely to result in a reasonable doubt, is intent. What did Trump intend by paying Stormy (if indeed he did…) to keep quiet about an affair (if indeed they had one…)

    For a guilty verdict, the prosecution must prove Trump had an affair with Stormy Daniels, paid her to be quiet about that affair, and that the principal purpose of the payment was to influence the outcome of the election, that the payment was from campaign funds (itself illegal in the amounts paid and lack of disclosure) and that Trump falsified business records with the intent to characterize the payment not as hush money but as legal expenses. Believe it or not, that’s the actual charge here when all the dust is blown away, falsifying business records.

    Before we get to the meat of the case — intent — a warm-up point. There is nothing illegal about paying out “hush money” per se. It is called a settlement and lawyers negotiate them all the time for clients via NDAs, non-disclosure agreements. A person receives a sum of money to not speak about some event, usually as a way to avoid a lengthy and often embarrassing public trial. So the term “hush money” is a bit disingenuous.

    As for the affair itself, the jury will need to weigh the statements of the only two people on earth who know the truth, Trump and Stormy. If you have nothing to “hush” you have no case. The jury will also need to weigh out whether money was paid to Stormy by Trump, and there again you have only two people on earth, former Trump lawyer Michael Cohen and Trump himself, one is lying. The so-called receipts for the payments are checks signed by Cohen, Don, Jr., and the former, and convicted, Trump CFO (who ain’t sayin’ ‘nuthin’ ’bout ‘nuthin here), but not Trump. The checks are claimed to be for payments to Stormy, again by Cohen and denied by Trump. No proof of payments for the purpose of hushing someone, you have no case (Cohen said he created fake invoices for legal services to cover-up the money.)

    The money must also come from campaign funds to end up as being illegal; it cannot be Trump’s personal money. This is because campaign finance laws limit the amount of a personal donation and require disclosure for a candidate’s own money donated to the campaign. Where did the money come from? Lastly, the prosecution must convince a jury that all of this, events from up to  nine years ago, usually charged as a misdemeanor, is actually worthy of a felony conviction. The prosecution must find a way, past the hoopla, to prove these points.

    But even if the jury can be convinced of the above points, largely on personal claims by disbarred lawyer and convicted felon and perjurer Michael Cohen, the case hinges on what was Trump’s intent all along.

    Trump may claim he need not discuss intent because there was no underlaying affair to begin with. More likely, however, at some point he could state something in legalese along the lines that if some sort of affair took place and if he paid Stormy to be quiet about it, his purpose was only to spare his wife and son further embarrassment. He was simply a marriage cheater. Besides, the infamous “Access Hollywood” tape was already out there, the one where Trump bragged about grabbing women by their private parts, and so how much of an influence could one more affair have on the campaign? Trump’s lawyer has already proposed another sweeping explanation in his opening statement to the court, saying “there’s nothing wrong with trying to influence an election. It’s called democracy. They put something sinister on this idea as if it were a crime,” he continued. “You’ll learn it’s not.”

    So the problem is, and it is a big one, intent. You have to intend to violate campaign finance laws, not make a mistake or just act like a sleaze. Any illegality comes from the supposition by Michael Cohen that he can speak to Trump’s intent, that the NDA was not, say, to spare Trump’s marriage from new embarrassment, but “for the principal purpose of influencing an election” amid everyone already knowing Trump was a serial philanderer. If the whole was primarily for the purpose of hiding Stormy from voters instead of hiding Stormy from Trump’s wife and kids, then the money was essentially a campaign contribution and a new set of laws kick in. But “it should be clear,” said the New York Law Journal, “Cohen’s plea, obtained under pressure and with the ultimate aim of developing a case against the president, cannot in and of itself establish whether Trump had the requisite mental state.”

    The prosecution has already begun setting the stage for the jury as to Trump’s intent with its first witness, former National Enquirer publisher David Pecker. Pecker testified at a meeting he and Trump (and Cohen) discussed how they might “catch and kill” negative stories during the campaign. If someone seemed ready to come forth with something that might hurt Trump, Pecker could “buy” the story from that person with the intent to simply hold on to it and never actually publish anything. That, the prosecution claims in what some lawyers call “storytelling,” will show Trump already had hiding stuff on his mind and worked out a mechanism to hush up a negative story. But if so why wasn’t that mechanism — the Enquirer route of checkbook journalism — used with Stormy? The jury will need to decide. FYI, prosecutors gave Pecker and another Enquirer executive immunity from prosecution so that they remain unindicted co-conspirators.

    What you are likely to hear in the media, and from the prosecution, is that this trial is really about something much bigger than false business records. It is about Trump trying to steal the election, something they’ll claim has plenty of proof of intent behind it (see January 6.) Never mind all the technicalities of campaign finance law and all the salacious details provided by ex-con disbarred lawyers and porn stars, this is about something we all know to be true, election fraud, the desire by Trump to win at any cost. He was afraid of what effect Stormy might have. He laid out plans with the Enquirer, used with another alleged extra-marital girlfriend, Karen McDougal, to kill bad news. He directed Michael Cohen to pay off Stormy. He had records altered with an intent to commit or conceal the real crime. He created a criminal conspiracy to help manipulate the election. He is guilty of something.

    We’re left at this early point with the question that nags everything to do with Trump — so what? It has been long-established Trump’s slimy personal life matters little to voters. Trump himself has done a masterful job of setting the stage for all of his trials, labeling them in bulk election interference and an attempt to use “lawfare” to prevent him from even campaigning for the presidency. The “so what” question here is so what if Trump is found guilty? In whatever form this all shakes out, guilty or not, will it matter on the one day it matters, Election Day 2024?

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    Posted in Biden, Democracy, Post-Constitution America

    Deep State Tries Again as “Friend of the Court”

    April 23, 2024 // 11 Comments »

    With the Supreme Court set to begin arguments on Donald Trump’s immunity claims April 25, the landmark decision likely to be handed down by the end of June or sooner, the Deep State weighed in. That itself is a scary thing, but even more frightening is this: what if they are right this time?

    Fourteen retired four-star generals, admirals, and other military leaders (including former NSA head Michael Hayden, who certainly knows a thing or two about illegal orders) filed an amici brief with the Supreme Court, arguing against former President Trump’s claims of immunity in his criminal cases, particularly those dealing with J6.

    Trump argues the charges against him related to J6 should be thrown out because he was acting as president at the time. Prosecutors denounced the idea, with the generals taking a side with their brief. Amicus/Amici curiae is a Latin term translating to “friend of the court.” It refers to a person or organization that is not a party to a case but offers information or expertise to assist the court in making a decision, although they do not have the same legal standing as briefs submitted by the parties directly involved in the case. They can be, as in this case, an argument by a third party to decide the case one way or another. The generals are decidedly against Trump having immunity, as any good Deep Stater would be.

    The generals argue Trump should not be granted immunity by the Court for three reasons: the claimed immunity would undermine the national commitment to civilian control of the military, Trump’s immunity would undermine the military’s adherence to the rule of law and thus its orderly functioning and public trust, and Trump’s claimed immunity, by implicating the peaceful transition of power in particular, threatens national security.

    The arguments for the first point are largely what you’d expect them to be, spraying out everything from George Washington’s address to Youngstown Sheet and Tube, centering on the idea that a president, immune from prosecution for anything he does while in office whether related to his official duties or not (as Trump is asking) could indeed order the military to do anything. One argument you can expect to hear more of is the president could order the armed forces to murder a political opponent live on TV. The president would be untouchable and the soldiers who faced such an order would be flummoxed as the Constitution subjects the armed forces of the United States to both civilian control and the rule of law, with murder being illegal. “Such a President would be able to break faith with the members of the armed forces by placing himself above the very law they are both sworn to uphold,” the brief says. It would allow “the Commander-in-Chief to weaponize the powers of the U.S. military to criminal ends.”

    It is important to step back and understand the president is already considered immune from criminal prosecution while in office, and that he serves under the ultimate check and balance of impeachment. He currently can be prosecuted for acts done while president after he leaves office, the current situation with the two ongoing J6 prosecutions, the Jack Smith one in Washington yet to commence and the Fani Willis one in Georgia sort of lurching underway soon. Trump argues, though the generals disagree, he is immune from prosecution for the things he said on the morning on J6, words that could add up to inciting the mob to attack the Capitol (though note Trump is not charged with incitement, a specific legal term. It can get confusing.)

    Nonetheless, there is little confusion in the generals’ brief. They argue if the “President is absolutely immune from criminal prosecution [this] has the potential to severely undermine the Commander-in-Chief’s legal and moral authority to lead the military forces, as it would signal that they but not he must obey the rule of law. Under this theory, the President could… direct members of the military to execute plainly unlawful orders, placing those in the chain of command in an untenable position and irreparably harming the trust fundamental to civil-military relations.”

    The generals’ second argument is compelling. Service members have a long-standing duty to disobey unlawful orders. This requires service members, who are required to obey all lawful orders, to disregard patently unlawful orders from their superiors and prohibits service members from using such orders as a defense to criminal prosecution. Immunizing the Commander-in-Chief from criminal prosecution would put service members in the impossible position of having to choose between following their Commander-in-Chief or obeying the laws enacted by Congress. Again, see the example of the president ordering the murder of a political opponent, the argumentum ad absurdum of this case.

    The generals cite something almost as clear, the My Lai massacre in Vietnam where the officer in charge on the ground was not successful in using “but I was only following orders” as a defense. Interestingly, Trump’s Supreme Court filing also cites My Lai, drawing a different lesson: the My Lai Massacre serves as evidence the military would resist (someone blew the whistle, albeit after the killings) carrying out the President’s hypothetical order to murder a political rival. That is wrong, say the generals’ in their amici brief: “the very fact that officer in charge on the ground felt emboldened to kill civilians on the basis of ‘superior orders’—in that case, from a captain—demonstrates that our system remains vulnerable to the risk that servicemen or women may commit crimes when ordered to do so. That risk is all the graver if the person giving the orders is the president, particularly one protected by absolute immunity.”

    The generals’ make their argument conclusively, stating “Receiving an unlawful order thus places service members—already pushed to extremes by virtue of their vocation—in a nearly impossible position. On the one hand, disobeying a lawful order is punishable by court-martial and contrary to everything service members have been trained to do. On the other hand, the duty to disobey imposes on them the obligation not to rationalize obedience of an unlawful order simply out of deference to one’s superiors—including the Commander-in-Chief.”

    The third argument in the brief is not as compelling, basically a variation of “Orange Man Bad, Dictator” in that the cases at hand, dealing with J6, concern specifically the peaceful transition of power at the White House. The generals’ argue it is a bad case to set any kind of precedent, and our adversaries will be taking note of what they consider a breakdown of democracy. Constitutional crisis’ are bad for the defense business when the bad guys are watching.

    The case puts a lot on the line. In Washington alone Trump is facing four J6 felony counts accusing him of defrauding the United States. Prosecutors allege he stood at the center of a campaign/conspiracy to block the certification of votes for Joe Biden that day. Granting Trump sweeping immunity would not only end this prosecution and the one in Georgia, it would set a precedent for all future presidents. Besides, Trump already has a decent defense in saying his remarks on the morning of J6 were covered by the First Amendment, with or without immunity. In the end, none of this may matter and the real purpose of the request for immunity may be simply to delay Trump’s trial until after the November election, in which case he wins no matter what the Court says.


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    Posted in Biden, Democracy, Post-Constitution America

    NBC’s Cultural Revolution (Ronna McDaniel)

    April 11, 2024 // 17 Comments »

    For all the talk of a Civil Cold War now underway in America, Red vs. Blue, it is the wrong historical example. The professional death of Ronna McDaniel at NBC earlier this month was an event right out of Mao’s time, not Robert E. Lee’s. McDaniel was fired by the masses at NBC because she wrongthought, because she held political views associated with the right and not the leftist road NBC and its running dog networks follow. The decision comes less than a week after NBC News announced her hiring, prompting an extraordinary public protest from the former host of its flagship Sunday morning show, as well as from popular MSNBC hosts. They fired her, but a public flogging would not have been out of the question if Chuck Todd thought he might get away with it, and he might have.

    Fans of the new Netflix series “3 Body Problem” saw it in action: the Chinese Cultural Revolution. Beginning in May 1966, this was a decade-long period of political and social chaos caused by Mao Zedong’s bid to use the Chinese masses to reassert his control over the Communist party. It was almost unfathomable in its brutality, killing as many as two million people for wrongthinking, thoughts that fail the ideological purity test. Wrongthink is an Orwellian word that preceeded the Revolution by decades but described its core spot-on. The word is equally useful today.

    “3 Body Problem” opens with a fictionalization of just one death, a university professor who refused to change his beliefs about physics to match Mao-thought, as contained in his so-called Little Red Book. For its complexity, the Cultural Revolution boiled down to one thing: believe what the majority says is right or suffer, to the pain of death, at the hands of the powerful. “Mean Girls” this is not.

    McDaniel, who is the niece of Republican Senator Mitt Romney, was first hired to lead the Republican National Committee (RNC) by Trump in 2017 after she served as chair of the Michigan Republican Party. She was then hired by NBC presumably to bring a dot of balance to NBC’s news coverage after her recent Trump-led ouster at the RNC. She was stricken from the news network after only four days on the job because as head of the RNC she in the past voiced support for claims by Trump about the outcome of the 2020 presidential election. The gist of the burn at NBC was that was a lie, McDaniel thus a liar, and as an NBC analyst she could not be trusted to not lie more.

    “Hold my beer” said dozens of people who came from the Democratic National Committee and the Biden White House to work as NBC analysts, chief among them Jen Psaki, who, as the official spokesperson for the Biden White House, lied as a profession to defend Joe Biden (here’s a compendium of her lies.) She jumped from liar-for-hire to hosting a show and constantly being on MSNBC, including “Meet the Press.” NBC frequently calls on the former spooks John Brennan, James Clapper, and once-senior FBI official and associate director Frank Figliuzzi. These are trained liars of the Deep State, men who helped promote Russiagate and sought the overthrow of Trump on fake accusations. Previously Neo-Cons were given hours of airtime on NBC to defend the invasion of Iraq under false pretenses and to later defend torture as a righteous response of a democracy to terrorism. How are they different from McDaniel? Rightthink versus wrongthink. If you are going to tell a lie it had better be in line with what the masses want to believe at NBC.

    Truth? In a cultural revolution as we are undergoing now the truth is what the Party tells the masses it is. Remember how vehement Rachael Maddow was about the truth of Russiagate even after it was shown to be an elaborate hoax of the Deep State? No matter; there was no one like Ronna McDaniel around to tell her she was wrong and we now know there never will be.

    Joe Scarborough and Mika Brzezinski — hosts of Morning Joe, a morning show watched daily by President Biden — said they were being inundated with calls over the decision to hire McDaniel. They vowed never to have her on their show in any capacity. Nicolle Wallace, a former White House communications director for President George W. Bush who is now a host on MSNBC, said on her show Monday having McDaniel on the network would embolden “election deniers.” Rachel Maddow, continuing the group therapy session, likened it all to hiring “a mobster to work at a D.A.’s office.” Chuck Todd, who emerged alongside Maddow as the spokesperson for the masses in the NBC news division, worried especially about “giving Ronna NBC News’ credibility.”

    Credibility? Only 32 percent of the population reports having “a great deal” or even “a fair amount” of confidence the media reports the news in a full, fair, and accurate way. The only other time in recent history that trust has fallen to 32 percent was in 2016, with the election. A record-high number of Americans — 39 percent — say they don’t trust the media at all. That number has steadily increased since 2018. Much of the change is driven by Democrats and Independents, presumably NBC’s target audience, whose collective trust in media plummeted 18 and 13 percentage points, respectively, from their 2018 peaks. What could you expect when the people who create the news are such blatant hypocrites? NBC news should not worry too much; its reputation for honestly ranks somewhere near “American Idol” anyway. The latest partisan jousting is just one of the many reasons why so many Americans roll their eyes when asked about the media.

    This is in no way to grant Ronna McDaniel status as some magnificent journalist, someone who can be seen as speaking for a generation of Republicans. Nor is it to say she would have spoken much truth to power at NBC anyway; chances are she would have barked out what those who fed her wanted to hear, perhaps as a Washington Generals-like foil to some hero like Chuck Todd. And what happened at NBC could have just as easily taken place at CBS, CNN or NPR. As my colleague writes “greater injustices have been perpetrated in the media world than the premature conclusion to Ronna McDaniel’s punditry career at NBC News.”

    The news is not there to make anyone feel safe. It exists so we can learn from it, and for us to learn from it we have to at times be offended and uncomfortable with it, to bathe in it, to taste it bitter or sweet. When you wash your hands of an idea you also lose all the ideas which grew to challenge it. Think antibodies fighting a disease. What happens when a body forgets how to fight an illness? What happens when places like NBC forget how to challenge a safe idea with an opposing one?

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    Posted in Biden, Democracy, Post-Constitution America

    New Challenges to the First Amendment from the Biden Administration

    April 3, 2024 // 10 Comments »

    The great irony is despite all the fear mongering spewed out about Donald Trump ending democracy, it is mostly the Democrats who are taking shots at its most sacred freedoms, those of the First Amendment.

    The House recently passed a bill, HR 7521, seeking to “ban” the popular app Tik Tok from America’s smartphones. The logic works like this: Tik Tok is owned by a Chinese company. Chinese companies are under the control of the Chinese Communists. Therefore, Tik Tok is brainwashing American youth while at the same time gathering their personal data for some undefined yet assumed nefarious use. Tik Tok thus should be banned.

    No evidence has been presented for any of the assertions listed — no evidence the Chinese government exerts control over Tik Tok, whose contents are 100 percent user-created, no evidence the app has any purpose other than to make money, and no evidence the app collects data and uses it in some way, nefarious or not. It just feels scary bad, like any other Red Scare, and so the House moved to ban it. The Senate votes soon, and Joe Biden says he will sign the bill if it reaches him.

    This is not the first time the government has tried to ban Tik Tok. In 2021, President Donald Trump issued an executive order against Tik Tok that was halted in federal court when a judge found it was “arbitrary and capricious.” Another judge found that the national security threat posted by Tik Tok was “phrased in the hypothetical.” When the state of Montana tried to ban the app in 2023, a federal judge found it “oversteps state power and infringes on the constitutional rights of users,” with a “pervasive undertone of anti-Chinese sentiment.” Candidate Trump now opposes the Tik Tok ban.

    You’d think that was enough for Tik Tok. Yet note the ban is just on some Chinese company owning the app and the bill allows for an American company or ally to buy Tik Tok and go on its merry way. It’s not a ban, it’s a hijacking. And don’t think the Chinese won’t find an American app to retaliate against. Listening Apple and Android?

    But that is not where the true First Amendment challenge lies, though “banning” the app can itself be seen as restricting speech. The real challenge lies in the details of the actual bill, another Patriot Act in hiding.

    Section 2(a)(1) of the bill prohibits “foreign adversary controlled applications” (FACA) from operating in the U.S. The prohibition applies not just to the app itself but to app stores and Internet hosting providers. There’s even a provision for a penalty of $5,000 per user fine; Tik Tok has 170 million users. Effectively, the bill creates a Federal government kill switch preventing distribution of “prohibited” apps or websites at the hosting level, clear top-down central government censorship of speech and absolutely unconstitutional under the First Amendment. Unless of course the weasel excuse is used that the actual killing of the imported app is carried out by Apple and Google as proxies without being touched by the Feds, the same trick currently used to gather American citizen data, in addition to direct hoovering up of material by the NSA on a scale the Chinese could only dream of.

    What is a “foreign adversary controlled application” under Section 2(g)(3) of the new bill? Any social/content-sharing website, desktop app, mobile app, or VR app that has more than a million monthly active users creating content is a FACA when two conditions are met: First, if it is controlled by a foreign adversary” or a subsidiary of or a successor to an entity controlled by a foreign adversary. Second, if the President determines it presents a significant threat to the national security of the United States.” The term “controlled by a foreign adversary” means that the company (a) is domiciled in, headquartered in, or organized under the laws of a foreign adversary country; or (b) has a 20 percent ownership group from one of those countries; or (c) is “subject to the direction or control of a foreign person or entity” from one of those countries (Section 2(g)(1). “Adversary” is currently defined elsewhere in the U.S. Code as Russia, China, North Korea or Iran, but can be changed to someday be, say, France (remember “Freedom Fries“?)

    There in the details lies the real challenge to the First Amendment, a set of vague criteria that allow the president to ban websites and apps based on his own finding of threat. No appeals, no due process. Censorship.

    Americans have a right to speak freely, and to listen/read/watch freely and make up their own minds. The Supreme Court in Lamont v. Postmaster General already ruled in 1964 that this right even extends to foreign propaganda (the case involved Soviet propaganda materials passing through the U.S. Mail.) In addition, the irony of the U.S. government showing concern for what a foreign company might do with user data when in the U.S. such data is openly for sale, including to the government itself, cannot be dismissed. The Tik Tok ban is bad law, likely unconstitutional, and generally unconscionable.


    The Tik Tok bill is not the only current challenge to the First Amendment. As exposed by the Twitter Files and elsewhere, for years the Biden administration worked hand-in-glove with the big tech social media companies, @jack’s old Twitter in particular, to censor speech. Various agencies, including those responsible for Covid-19 policy, would contact the media companies to demand wrongthink posts be taken down. Particularly offensive were conservative posts questioning the efficiency and safety of the Covid vaccine, and those dealing with election fraud.

    The question of whether or not the government can do that — demanding specific online speech be killed — reached the Supreme Court, and oral arguments were held earlier this month in the case of Murthy v. Missouri. The Court seemed skeptical of the idea that such action by the government was unconstitutional on its face, as the states claimed. Instead, the justices’ questions seemed to lean toward how the censorship was done. The government was free to persuade social media carriers, cajole them, argue with them but as long as the government did not force them to take something down, it was likely legal. The states contend the looming power of the federal government made each request, however bland and polite, into a threat. Same as when the mafia thug in the movies says “Nice home you have here, hate to see anything happen to it if you’re late paying us.” In one interaction a government watchdog seeking to deep six some posts stated “the White House is considering its options” if the take down effort fails.

    There was room for debate. Justice Alito stated “When I see the White House and Federal officials repeatedly saying that Facebook and the Federal government should be partners… regular meetings, constant pestering… Wow, I cannot imagine Federal officials taking that approach to print media.” Alito also thought the barrage of emails from the White House and others to the social media companies may have met the legal standard for coercion. The states agreed, saying “Pressuring platforms in back rooms, shielded from public view, is not using a bully pulpit. That’s just being a bully… We don’t need coercion as a theory. The government ‘cannot induce, encourage or promote’ to get private actors to do what government cannot: censor Americans’ speech.”

    Justice Kentaji Brown Jackson came back with “Whether or not the government can do this… depends on the application of our First Amendment jurisprudence. There may be circumstances in which the government could prohibit certain speech on the internet or otherwise. My biggest concern is that your view has the First Amendment hamstringing the government in significant ways.”

    Justice Barrett seemed uncomfortable with the lower courts’ conclusion that the Biden administration could be banned not only from “coercion,” but also from any action that “significantly encourages” platforms to take down protected speech. “Encouragement would sweep in an awful lot,” she said.

    Interactions between administration officials and news outlets are part of a valuable dialogue that is not prohibited by the First Amendment, said Justices Kavanaugh and Kagan. The Justices suggested instead there is a role for vigorous efforts by the government to combat bad speech, for example discouraging posts harmful to children or conveying anti-Semitic or Islamophobic messages.

    Brown’s, et al, remarks are frightening from a constitutional point of view, basically saying when the government is ineffective in creating dominant content of its own to address public messaging (i.e., “Vaccines are safe”) it justifies proxy censorship to eliminate counter information.

    A Supreme Court decision is expected in June.

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    Posted in Biden, Democracy, Post-Constitution America

    Biden, Humanitarian Parole, and the Border

    March 27, 2024 // 3 Comments »

    Joe Biden could reduce the number of migrants coming into the United States by a million a year, no Congressional action (except cheering by Republican members) necessary.

    More than one million people have been allowed to enter the U.S. under Biden administration programs, based on humanitarian parole authority. Since 2021 Biden has used parole on a historic scale, invoking the 1952 law to welcome hundreds of thousands of foreigners fleeing conflict in Afghanistan and Ukraine, or perpetual political and economic crises in countries like Haiti and Venezuela.

    In 2023 the administration opened this path to immigrants from Ecuador, adding that country to a long list that includes Colombia, Cuba, El Salvador, Guatemala, and Honduras. In FY2023, the Border Patrol apprehended over 99,000 Ecuadorians who entered the U.S. without authorization, a 312 percent spike from FY2022 and an annual record. By sweeping people from these countries into the humanitarian parole program they are automatically made “legal,” with work permits, for one or two years. During that time they are able to apply for asylum, or wait out an immigrant visa application filed by a relative, bypassing the family reunification-based visa system, which is massively backlogged and numerically limited. Or just disappear into the Heartland.

    The Biden theory is that the humanitarian parole route draws people away from the southern border. The problem is it draws them directly into America. Biden administration officials say they’ve acted unilaterally since Congress has not expanded legal immigration pathways since 1990.

    Biden is also using the parole law to process 1,500 asylum-seekers along the U.S.-Mexico border each day who secured an appointment to apply through a phone app. The underlying program, which began in fall 2022, has admitted more than 357,000 people from Cuba, Haiti, Nicaragua, and Venezuela as of this January — 74,000 Cubans, 138,000 Haitians, 58,000 Nicaraguans, and 86,000 Venezuelans. Homeland Security secretary Alejandro Mayorkas called the program “a key element of our efforts to address the unprecedented level of migration throughout our hemisphere.”

    So what is this humanitarian parole authority Biden has repurposed into a fire hose epically driving migrant numbers?

    Humanitarian parole refers to a discretionary mechanism employed by the U.S. Citizenship and Immigration Services to allow individuals to remain in the United States on a, in theory, temporary basis for urgent humanitarian reasons or significant public benefit. It was never intended to replace regular visas or Green Cards but rather as a form of temporary relief. Prior to Biden, humanitarian parole was typically granted in cases involving medical emergencies, humanitarian reasons, or significant public benefit. Examples of situations that warranted parole include medical treatment that is not available in the individual’s home country, urgent family needs, or situations where the person can contribute significantly to the public interest in the United States, say as an artist fleeing a repressive government. Pre-Biden, it is important to note that the decision to grant humanitarian parole was mostly made on a case-by-case basis. The previous two administrations averaged about 5,000 cases per year. Past uses of mass parole include the one-time flood of migrants after the Vietnam War (340,000 people) and the Mariel Boatlift (125,000) from Cuba. Every administration, Republican and Democratic, has used parole in emergencies; none had made it the cornerstone of an ongoing mass migration program before Biden.

    Trump said during his campaign he would end this “outrageous abuse of parole” if re-elected. Until then, absent new law from Congress, it looked for awhile like only Texas could stop Joe, though the effort ended in failure.

    Earlier in March a federal judge allowed the Biden administration to continue the program against Texas’ wishes. Judge Drew Tipton — a Trump appointee who previously ruled against a Biden initiative, a proposed 100-day moratorium on most deportations — of the U.S. District Court for the Southern District of Texas sided with the administration, saying the states failed to establish they had standing on any of their claims to force Biden to end the parole program. The states which signed onto the lawsuit, including Florida, Tennessee, Arkansas, and 16 others, argued the program burdened them with additional costs for health care, education, and law enforcement. They also argued the Biden administration was simply recategorizing people who otherwise would have entered the country illegally to come to the United States quasi-legally and thus does little to address the underlying issues along the southern border. They asserted the policy flouts the limits Congress placed on legal immigration.

    Texas is almost certain to appeal the decision, and the case could end up in the Supreme Court as it can be read as addressing the limits of state power on traditionally Federal issues like immigration.
    Texas has not gone away quietly, pursuing other avenues to stop Biden’s parade. Operation Lone Star is Texas Governor Abbott’s multibillion-dollar border security initiative. It establishes a Texas law enforcement presence on the Rio Grande and empowers state and local law enforcement officers to jail migrants on trespassing charges. A new section of border wall was built. The Texas legislature supported the operation by increasing penalties for smuggling and authorizing local police to take on immigration enforcement.
    Another measure is Texas Senate Bill 4, which makes it a state crime for migrants to cross the U.S.-Mexico border into Texas without legal documentation. It also authorizes Texas to deport undocumented illegals. A judge put the law on hold in February, saying it violates the constitutional requirement that the Federal government, not the states, regulate immigration and the border. The U.S. Court of Appeals for the 5th Circuit blocked the judge’s decision and said the law could take effect while the litigation proceeded. The Supreme Court then temporarily reimposed the pause, and it could rule soon on whether the law will remain on hold until the appeal is decided.
    The city of Eagle Pass became another focal point of state efforts, seeing Texas National Guardsmen unspool razor wire and deploy river buoys to stop migrants. In January, the Guard took over a municipal park, blocking border agents from the riverfront. Authorities from other Republican states sent their own Guardsmen to help. Plans are also in the works to create an 80-acre operating base. Texas sued the Biden administration to prevent Federal border agents from removing or cutting the wire barriers. A district judge sided with Texas, finding that the barriers limit illegal crossings, which impose costs on the state. Ultimately, however, the Supreme Court sided with the Biden administration, saying border agents may remove the barriers as needed until their legality is fully resolved in lower courts.

    Texas’ most nationally visible and certainly most controversial measure to do something about the flow of migrants has been to put them on buses and planes and internally deport them to sanctuary cities such as New York. Since April 2022, Texas has bused more than 100,000 migrants to at least six cities. Spreading the migrant crisis northward has been a genius move by Texas, turning a regional humanitarian crisis into a national one sure to drive votes in November. Before Biden, immigration had never polled as a number one concern for Americans.

    So when Angry Joe Biden says with the sincerity of a wedding vow there is nothing he can do about the southern border without Congress acting he is lying. The border crisis is caused solely by Biden’s decision to employ humanitarian parole on a large scale, a decision which can be rescinded anytime. There are also interim measures like razor wire to dampen the flow. Biden could solve the problem today. If he is still not sure how, he could always ask Texas.


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    Posted in Biden, Democracy, Post-Constitution America

    Open Letter to Democrats About Facing Reality

    March 20, 2024 // 10 Comments »

    Speaking as a friend now, Democrats, it is time to face reality. Your candidate is going to have to beat Donald Trump at the polls in November fair and square. You impeached our guy twice without lasting affect. None of the banana republic tricks and lawfare have worked. There was a real Republican primary which Trump won majorly. The guy is not made of Teflon or anything special like that; your efforts are just lame and ineffectual. Time to slap some cold water on your faces and face the music. It is Biden vs. Trump. The voters will decide.

    The battle to destroy Trump rather than beat him and accept his victory started w-a-y back in his first term. There was the initial rush to create some sort of rogue electors and deny the 2016 election (sound familiar?) Then there was the Emoluments Clause, which was going to take down Trump for owning hotels that had foreign guests. Lest we forget the uber-play, Russiagate, a wholly-false effort to link Trump to Russian intelligence using made-up witnesses and a fake dossier. That one could have escaped the lab, as we learn now the Trump campaign was subject to a full-court press by the Five Eyes intelligence services, who if they could not find dope on Trump, were going to create it with false flag operatives. Along the way there were various impeachments that depended on Democratic control of the House to rig the game (both failing in the Senate.) Each of these failures to weaken Trump or drive him from office was met with Democratic tears, that somehow he again escaped a carefully laid snare.

    After Trump left office the real games began, centered on the state of New York which decided it would speak for the other 49 in trying to drive Trump out of business, into bankruptcy, and otherwise prevent him from becoming president again. Things began with the Jean Carroll defamation case, in which the last remnants of the #MeToo movement were repurposed to have a court agree that Trump committed a sexual assault decades ago, so far back that the victim could not remember the year it occurred, never mind the date, with no eye witnesses and no physical evidence presented. Nonetheless, an $83 million civil defamation judgment arising out of the alleged attack was rendered against Trump.

    The next shot ended up with a judgement five times that size, over claims that for decades under the eyes of New York regulators and tax inspectors Trump exaggerated his net worth and the worth of his properties to get better loan and insurance terms. Never mind that the state proved no harm was done, and that the creditors claimed no harm was done and indeed they profited from the loans, a conviction was possible so a conviction was made. Poison pills were embedded in that decision, making it impossible for Trump to seek an appeal without providing a multi-million dollar bond first. The interest alone on the fine runs $100,000 a day. New York might as well have revived debtor’s prison.

    No matter the final amounts likely reduced on appeal in both cases, neither will prevent Trump from running for president and polls show no affect on his popularity. They thus failed as much beyond harassment.

    New York has one last round to expend, a Wonka-like criminal trial claiming Trump “falsified business records” in his paying adult star Stormy Daniels to remain silent on their minutes-long affair. This one is so weak Michael Cohen, convicted felon and certified liar, is the star witness. This one is so weak even the New York DA Alvin Bragg may agree to put it off until after the November election. A local jury could find Trump guilty of something, but the most exciting outcome of the trial will be to see who SNL gets to play Stormy.

    Outside of New York, a quick one was next, an attempt to remove Trump from the ballot in multiple states based on a fantasy reading of the 14th Amendment, Section 3, and an arbitrary judgement by the Democratic Secretary of State in Blue Colorado and a traffic court judge in Illinois that Trump committed “insurrection” on January 6. Never mind the impeachment for insurrection found him not guilty, and that the case against him pending for his actions on January 6 (below) does not charge insurrection. In a unanimous decison (so much for court packing) the Supreme Court made short work of all that and Trump will remain on the ballot in all 50 states so that the people may vote him up or down. See a pattern here yet Democrats?

    In Georgia, everyone is waiting for a judge to remove prosecutor Fani Willis from the case on the basis of misconduct because of her affair with one of the hired gun co-prosecutors she bought to go after Trump. If Willis is removed, the entire case is likely to collapse. While that is playing out in lascivious slow motion, the underlying case itself  has been hopelessly delayed, and even before the recent mess, Willis herself predicted it would take until early 2025 to decide. Byron York wrote “to call the case troubled would be a great understatement.”

    That leaves the classified documents case and Jack Smith’s something something Orange Man gotta be Bad Man January 6 case.

    The classified documents case faces an uphill battle, as the defense is sure to raise the question of how classified documents at the homes of Mike Pence and Joe Biden himself did not bring on prosecutions while Trump is in a multi-year struggle and had his home dramatically raided by the FBI. It is a complicated case, involving presidential privilege and the rabbit hole of what is classified and how a document is unclassified. These complexities work to Trump’s advantage, most likely postponing the trial until well after November 5 when it really does not matter much anymore one way or another.

    That pretty much is the story for the mother of them all, the January 6 case. There is a slim chance the Supreme Court will decide in favor (a ruling is expected in June) of Trump having presidential immunity for his actions on that day, and a greater chance the Court’s process will drag on such that the trial will not be ready to hear until smack in the middle of the actual election season. The Justice Department has its own internal rule barring prosecutors from “selecting the timing of any action… for the purpose of affecting any election,” suggesting it too will pend until after November. Again, if Trump wins the election all the wind leaves the sails of this case, and if Trump loses to Biden, no one will care about January 6 anymore anyway.

    So Democratic friends, where does that leave you?

    Nothing on the legal horizon will prevent Trump from being the Republican nominee. Nothing even in worst case scenarios will leave him ineligible to serve as president. Polls consistently show these legal issues do little to reduce his popularity and in some cases appear to enhance it. Polls show Trump can win from inside a jail cell. You are wasting enormous amounts of time and effort on a strategy that is not likely to work and holds the possibility of actually working against you and helping Trump with the only thing that really matters in any of this, November 5.

    Americans appear to be turned off watching “people in positions of great power and responsibility, in the midst of a campaign, would use the justice system to ‘curb’ one of the two major presidential candidates. They might find it outrageous that those people, a coalition of elected Democrats, Biden administration appointees, Democratic Party activists, and career lawfare specialists, are in fact desperately pushing the system to work faster to win verdicts by Election Day.”

    Your strategy is backfiring. No American election has featured this much meddling by the judicial system, and this much naked partisanship by the Justice Department and its proxy the state of New York. It does not sit well with the American sense of fair play. You blew it. You threw it all against the wall and nothing stuck.

    Meanwhile, the Republican primary with its Democratic Great Hopes like Nikki Haley, failed to move the dial on Trump. Sitting in first place, he refused to be drawn in to being a punching bag during televised debates with his opponents, and instead one-by-one put them down, solidifying his position as the titular nominee as early as Super Tuesday. No one from the right is going to save you, Dems.

    You’re just going to have to win or lose this one the old fashioned way.

    Coming to the same conclusion from a very different angle is the New York Times, which editorializes Trump must be found guilty — of something — to convince Americans as the last line of defense to vote as if democracy is at death’s door. Slate writes “it’s clear that if anyone is going to save American democracy, it is going to be the voters… It deludes us into thinking that someone else is going to rush in while we watch and cheer from the stands… We need to stop deluding ourselves that a majority of the Supreme Court sees the same political emergency that many of us do in terms of the threat Trump poses to American democracy.”

    Yeah, well, never mind that last bit of editorializing, it’s just the MSM at work. And by the way, nobody outside the Democratic inner circle and Rachel Maddow believes democracy is going to end in November. The bottom line is you Democrats still have a chance to make this race about something other than Orange Man Guilty and the Two Minutes of Hate. You start from a position of handicap, with a candidate as weak as Joe Biden, but as then-Secretary of Defense Donald Rumsfeld said, you go to war with the army you have, not the one you want. Let the election happen; give democracy a chance.

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    Posted in Biden, Democracy, Post-Constitution America

    Social Media vs. Conservative Thought; Who is a Publisher?

    March 14, 2024 // 12 Comments »

    The Supreme Court heard oral arguments in late February on the fate of conservative thought in mainstream social media. It doesn’t look good for our side.

    The Court expressed skepticism about Florida and Texas laws (Moody v. NetChoice, NetChoice v. Paxton) enacted in response to social media platforms censoring conservative views after the January 6 Capitol riot. The state laws restrict social media companies’ choices to cancel user-generated content and require individualized explanations for editorial choices. Media trade groups challenged the laws, with the 11th Circuit blocking Florida’s enforcement while the U.S. Court of Appeals for the 5th Circuit upheld the Texas law. The Texas law is not currently in effect, however, because in 2022 the Supreme Court barred the state from implementing it with the challenge ongoing.

    During the oral arguments, the Justices suggested the laws may violate the First Amendment by infringing on companies’ editorial decisions.

    The deeper questions are whether or not social media are publishers or conveyers (common carriers), and whether or not they are bound by the First Amendment not to censor thought. The first issue tries to draw out the question of whether say Facebook (Google, et al, we’ll use “Facebook” as a proxy) are publishers in the same sense The American Conservative magazine and web site are. A publisher by definition has a First Amendment right to select which authors to include/exclude and what topics to write about. It is literally what a publisher does. A conveyance is closer to the phone company; they provide the means of communication fully independent of what is being communicated. The phone company, for example, could care less whether you are talking to mom about Aunt Sally’s apple pie recipe or organizing to burn the flag to protest an over-emphasis on mom and apple pie.

    More issues to resolve: the First Amendment prevents government from suppressing speech and has never been applied to private companies however large and dominant in the marketplace, and Section 230 of the Communications Decency Act, which says Facebook and others are not publishers (technically, the Act shields tech companies from liability for content published by others, i.e., Facebook is not liable for crazy postings.)

    Nonetheless, Florida and Texas passed laws that prohibited social media from editorially eliminating (conservative) thought. For example, the Florida law bars social media platforms from banning candidates for political office, as well as from limiting the exposure of those candidates’ posts. The Texas law prohibits companies from removing content based on users’ viewpoints. The laws also would have forced the platforms to explain each decision to delete, shadow ban or otherwise block a specific example of thought. The social media giants claim such regulation violates their First Amendment rights. They claim the Florida and Texas laws are unconstitutional if they apply at all, independent of who is or is not a “publisher.” The states maintain their laws do not “implicate the First Amendment at all, because they simply require social media platforms to host speech [a conveyance], which is not itself speech but instead conduct that states can regulate to protect the public. The business model for these platforms, the states say, hinges on having billions of other people post their speech on the platforms – something very different from, say, a newspaper that creates its own content and publishes it.”

    Justice Elena Kagan was one of several justices to question the constitutionality of the Florida and Texas laws, asking “Isn’t this a classic First Amendment violation?” [of Facebook’s rights] when the state is preventing the platforms from making their own editorial judgments. Justice Brett Kavanaugh also appeared unconvinced. He noted that the First Amendment protected against the suppression of speech “by the government” (same for Chief Justice John Roberts) not private companies and that the Supreme Court had a history of cases “which emphasize editorial control [such as Facebook’s] as being fundamentally protected by the First Amendment.” Justice Amy Coney Barrett said “it all turns on” whether the social media platforms are exercising “editorial control,” acting as a publisher, when they remove or deprioritize content. Justices also voiced concern the Florida law was quite broad, potentially applying not only to large social media platforms but also to other sites like Gmail, Uber, and Etsy. Texas law on the other hand specifically excludes standard web sites and tools such as Gmail.

    The justices pressed for a discussion of the interaction between the Texas law and Section 230 of the Communications Decency Act. Justice Neil Gorsuch stated there is a tension between the idea that a tech company can’t be held liable for its users’ speech and the idea that moderating that content is the tech company’s speech. Is it speech for purposes of the First Amendment, he asked, but not for purposes of Section 230? “Just as Florida may not tell the New York Times what opinion pieces to publish or Fox News what interviews to air, it may not tell Facebook or YouTube what content to disseminate,” the tech companies emphasize. Is content moderation just a euphemism for censorship? Justice Samuel Alito pressed tech companies to define the term “content moderation.” “If the government’s doing it, then content moderation might be a euphemism for censorship,” said a company representative. “If a private party is doing it, content moderation is a euphemism for editorial discretion.”

    The Biden administration filed a “friend of the court” brief against Florida and Texas supporting the tech groups.

    A decision by the Supreme Court is expected this summer. The Court is likely to prevent Florida and Texas from implementing laws restricting social media from removing conservative thought or controversial posts, even as they express concern about the power platforms wield over public discourse. That does not end the debate, however. The interplay between the First Amendment and Facebook is the most significant challenge to free speech in our lifetimes. Pretending a corporation with the reach to influence elections is just another place that sells stuff is to pretend the role of debate in a free society is outdated.

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    Posted in Biden, Democracy, Post-Constitution America

    Racial Discrimination (For a Good Cause!) is OK at America’s Best High School

    March 6, 2024 // 9 Comments »

    Racial discrimination (if for a good cause you understand!) is OK at one of America’s best high schools. Other schools can be expected to follow suit.

    The Supreme Court declined certiorari (it will not hear the case) in Coalition for TJ v. Fairfax County School Board, where a group of parents and students at the magnet Thomas Jefferson High School for Science and Technology  (known to all as T.J.) in Virginia, sued to revoke a new admissions policy they claimed discriminated against Asians and whites. The Court’s denial left in place a ruling by the U.S. Court of Appeals for the Fourth Circuit affirming the policy. The declination is in contrast to the Court’s earlier rejection of affirmative action,  Students for Fair Admissions, Inc. v. Harvard, and of race as a primary admissions factor.

    So what’s been going on at T.J.? Asian and white parents have been fighting over how many black students should be allowed in. Until summer of 2020, the only way into prestigious T.J. for residents was to pass a rigorous series of entrance exams. Following the death of George Floyd, T.J. officials became concerned about their low number of black students and changed admissions standards. The tests were gone, replaced by a holistic review that included “experience factors, eligibility for free or reduced price meals, students who are economically disadvantaged, English language learners, special education students, or students who are currently attending underrepresented middle schools.”

    The results were as intended: Without the entrance tests, the black student population grew to 7 percent from 1 percent of the class, while the number of Asian students fell to 54 percent from 73 percent. The number of white students also fell, but no one seemed to care that they accounted for only 22 percent of admissions, despite being 65 percent of the county population. A group of mostly Asian parents objected to the new plan and started the Coalition for T.J. Instead of seeing the weighting of experience factors as a way to level the playing field for underrepresented groups, they saw racism against Asian students. The experience factors were just a work-around for straight up race-based decisions, a violation of the Equal Protection Clause of the 14th Amendment.

    The problem is T.J. lies in a racially and economically diverse place. There are a lot of middle and lower class whites, a fair number of middle class Asians and a poor black minority. The school seems to think that if their matriculated population looks any different, it has to be discrimination. So out with the standardized tests and in with experience factors that could be tweaked to achieve the desired racial mix. Stakes were high as T.J. is a feeder school into the Ivies. So parents fought back. The Coalition for T.J. sued the school system to reverse the admission process changes, which they allege were meant to diminish the number of Asian students. That qualifies as discrimination based on race.

    In May 2023, after action in District Court, the Court of Appeals for the Fourth Circuit ruled in favor of the new admissions process, finding T.J. had not discriminated against Asian  students in its admissions policies. Too bad for the Asians, there’s only so many seats available at T.J. The court found T.J.’s new admission policy was race neutral and was not a proxy for race-based decisions. T.J. was able to make racially-motivated decisions without appearing legally to make racially-motivated decisions.

    One factor T.J. would rely on was an applicant’s public middle school zip code, a good indicator of race in a divided Fairfax county. Zip code was to become one proxy for race, a work-around to Students for Fair Admissions, Inc. v. Harvard which supposedly outlawed race alone as a primary admissions factor. Schools like T.J. may use race as an admissions criterion as long as it is not the only basis for a decision, with the implied so long as the goal is diversity (supposedly good on its face) and not whitewashing. It is this policy the Supreme Court this month refused to review.

    Justice Samuel Alito, joined by Justice Clarence Thomas, dissented from the most recent non-decison. Alito wrote “what the Fourth Circuit majority held, in essence, is that intentional racial discrimination is constitutional so long as it is not too severe. This reasoning is indefensible, and it cries out for correction… the ‘core purpose’ of the Equal Protection Clause is ‘doing away with all governmentally imposed discrimination based on race.’”

    The District Court faithfully employed this framework. In addition to noting that the record contains direct evidence of racial intent, the court noted the stark change effected by the new policy, the unusual decision-making process that led to the change, and the fact that the change bore ‘more heavily on’ Asian Americans than members of other groups. The Fourth Circuit panel majority, by contrast, completely distorted the meaning of disparate impact. Even though the new policy bore ‘more heavily’ on Asian- American applicants (because it diminished their chances of admission while improving the chances of every other racial group), the panel majority held that there was no disparate impact because they were still overrepresented in the T.J. student body… Accordingly, the new admissions policy bore more heavily on Asian-American applicants.”

    “The holding,” wrote Alito, “effectively licenses official actors to discriminate against any racial group with impunity as long as that group continues to perform at a higher rate than other groups.”

    The dean of UC Berkeley School of Law and the general counsel for the University of Michigan have openly advocated for schools to emulate T.J.’s new admissions model. “Just as T.J. offers a road map for other selective schools to skirt the Equal Protection Clause,” warned Alito, “so too does the Fourth Circuit’s reasoning offer a road map for other federal courts to provide cover. The Fourth Circuit’s reasoning is a virus that may spread if not promptly eliminated.”
    It is unclear why the conservative Supreme Court refused to take up the question of T.J.’s racially-motivated admissions policy, especially after effectively shutting down “affirmative action” per se in Students for Fair Admissions, Inc. v. Harvard. One Harvard Law professor wrote it was “naïve” to believe that the courts would allow race-neutral strategies designed to promote diversity to survive. Two things, however, are clear: T.J. will continue to discriminate against Asian (and white) students in its admissions process, and racial proxies, such as zip code, will be favored by schools and universities seeking a way around Students for Fair Admissions, Inc. v. Harvard. One step forward, two steps back for an education system based on merit, not skin color.

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    Posted in Biden, Democracy, Post-Constitution America

    I Don’t Want to Vote for Michelle Obama

    February 29, 2024 // 15 Comments »

    I don’t want to vote for Michelle Obama.

    Joe Biden is, as a candidate, a dead man walking. Forget about doctors; anyone who is caring for an aging parent with cognitive decline can see all the signs and knows what is coming next. Joe can’t remember words or names, or dates, and walks stiffly with his arms locked. He falls often. He gets angry and cusses. It is all there. We all know what is being hidden, just like mom dribbles her food or rages someone is after her money. It is not a pleasant hing to watch, this infantilization of a person you once looked up to, but the decline is obvious and the decline is a one-way street. It  hurts, it really does, whether it is mom or Joe Biden, to watch it all knowing there is nothing that can be done.

    The issue is, however sympathetic one is toward mom, none of that applies to Joe Biden the president as opposed to the elderly man. Biden is charged with running the United States on all of our behalf, a job like no other. Special counsel Robert Hur’s nearly 400-page report is full of damning evidence of Biden’s carelessness with vital national-security secrets. His defense of Biden is the man is just too old and forgetful to be held responsible for his actions. It is one thing to explain away mom’s behavior at dinner, another when addressing national security. There is room at family gatherings for “a sympathetic, well-meaning, elderly man with a poor memory” but not in the White House. If Joe is unfit to stand trial for his casual misuse of classified documents then he is unfit to be president.

    The public seems to be catching on. Nearly every poll shows Biden behind, often by several points. His approval rating suffers in the high 30‘s. He is losing to Trump; heck, even Nikki Haley beats Biden one-on-one in some polls. “President Biden’s poll numbers seem set in quicksand,” wrote one commentator. A recent ABC News poll found 86 percent of Americans think Biden is too old to serve another term. We might feel bad for Joe, but we’d all feel better if he was retired to a beach chair in Delaware eating ice cream instead of standing poised above the nuclear button (and you worried about Trump.)

    Problem is, bound by tradition, Joe Biden is “entitled” to run for a second term, which he is in theory doing. No primaries, no public discussion, just an assumption that Joe is allowed two cracks at the ball. Is tradition powerful enough to hand the White House over to a senile old man for four more years? Or is Joe Biden’s legacy among Democrats to be the guy who put Trump back into power? Consider Barack Obama’s infamous assessment: “Don’t underestimate Joe’s ability to f*ck things up.”

    The obvious alternative is Biden steps aside on some pretext and Vice President Kamala Harris steps up to be the Democratic candidate. Harris, who found her way into office as the DEI sweepstakes winner after humiliating Biden to his face in the 2020 debates, has none of Joe’s public appeal and on her bad days little of his cognitive abilities. Poll after poll shows her losing, her lack of experience among other things a hindrance to her ascent to the Oval Office.

    But what about if Harris got that experience, via the 25th Amendment? It is doubtful that ploy is even possible. The 25th lays out presidential succession when the Chief Executive is “incapacitated.” It requires a mini-coup of sorts, as the process involves the VP herself to initiate things, alongside the Cabinet. They would need to declare the president is “unable to discharge the powers and duties of his office,” and notify Congress the vice president intends to take over. If Vice President Kamala Harris could get eight Cabinet officers to go along with a letter to Congress, her status as the “Acting President” would likely be short-lived anyway. Biden would only have to declare “no inability exists” and then resume his office.

    Harris would then have to send another declaration within four days to the president pro tempore of the Senate and the Speaker of the House, rejecting Biden’s claims. Congress would have 21 days to vote on the removal, which would require two-thirds majorities in both houses. If Congress did not vote within 21 days, the president would resume power. As with the many demands that the 25th be invoked during the first Trump administration, the amendment designed to deal with presidential death or true temporary disability such as surgery, just cannot be squeezed and tickled into a mutiny by the Vice President to save her party defeat in November. As Constitutional law scholar scholar Jonathan Turley wrote, invoking the 25th Amendment “would require more than just memory lapses and ‘get off my lawn’ press conferences… the sole question is whether he can carry out the duties of his office. The standard is not whether he can carry out those duties well.” The concern over Biden, and Harris, is real, but the 25th Amendment is not the solution.

    That leaves the nuclear option: Michelle Obama, the September Surprise.

    Imagine a mediocre spring dragging into a lackluster summer. Ukraine drags on Biden. Israel drags on Biden. The economy drags on Biden. The Democratic National convention is without spirit and the calendar yields to autumn. Trump leads in most every poll and while the Never Trumpers still take their share of skin it looks more like Democrats will stay home from the polls and hand over the White House. If only there was someone not named Harris who could step up as the Great Hope. Imagine, says RealClearPolitics, “should Biden be incentivized to suddenly declare a new health issue that leads him to announce a week or two after the convention that he will continue his term but will not be running, suddenly we have one of those crises that should not be wasted. Rising above it all and quelling the haggling, Michelle – with her 91 percent popularity among Democrats and 68 percent nationally when she left the White House, and with the Obama fundraising and political network and experience – can accede when pressed, for the good of the country, to graciously accept her grateful party’s nomination.” Who else could it be? Gavin Newsom? Hillary?

    (Michelle) Obama has the popularity and name/face recognition to step in at the last moment for a tired, placeholder Joe (September is “the last minute” given the 50 sets of laws governing how much time is needed to add a candidate to the ballot and still make mailing deadlines for absentee votes.) Her own lack of experience is tempered by Barack and indeed a quiet selling point among Dems will be that this is indeed a third term for some sort of Obama administration. With Obama’s popularity and bullet-proofing against accusations of racism, no one will worry at all about sweeping Kamala Harris aside, perhaps with the promise of a nice university job to show no hard feelings. Celebrity endorsements would pour in headlined by Oprah and Taylor Swift and someone near immune to Trump’s personal insult style of campaigning would take the rostrum against him. It would be a close election.

    “If race and gender are your basis for selecting someone for a job, and the identity of your party is tied to that temple of identity politics, then they will risk looking hypocritical if they sideline her [Harris] after they sideline Biden. And I do think Michelle Obama offers them a convenient path out of that problem, somebody who checks the boxes that they need to have checked per their own ideology, while also selecting an alternative to Biden that they may view as more palatable in a general election… it’s looking increasingly like it’s not going to be Biden as the nominee. And I think that it should not be shocking to see someone like Michelle Obama take the role of the nomination,” former GOP presidential hopeful Vivek Ramaswamy said.

    Obama for her part said she’s “terrified” about the potential outcome of the 2024 election, listing November’s presidential contest as among the fears that keep her awake at night. How’s that for motivation?

    The Democratic National Committee rules that apply are actually simple, saying “The Democratic National Committee shall have general responsibility for the affairs of the Democratic Party between National Conventions… This responsibility shall include filling vacancies in the nominations for the office of President and Vice President.” The chairman confers with Democratic Congressional Leadership and the Democratic Governors Association and takes a decision to all 483 DNC members to vote on.

    RCP reminds it has been done before. In 1972, Democrats realized weeks after their convention the man they had nominated for vice president, Senator Thomas Eagleton, had undergone shock therapy a decade earlier. Eagleton withdrew from the ticket and left it to the DNC to choose a replacement. They got Kennedy in-law Sargent Shriver to agree to what became a “suicide mission.”

    So the real question is: would you vote for Michelle Obama? A lot depends on the answer.


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    Posted in Biden, Democracy, Post-Constitution America

    Why Journalism is Going Extinct

    February 18, 2024 // 15 Comments »

    Is journalism going extinct? asks The Atlantic in an article of roughly the same name. The numbers are deadly: the grimmest news was from the Los Angeles Times, the biggest newspaper outside of the east coast. The paper announced it was cutting 115 people, more than 20 percent of its newsroom. In June of last year the Times previously dropped 74 people from its newsroom. Some 2,900 newspapers closed or merged since 2005. Sports Illustrated is in trouble. The Washington Post, NBC News, ABC News, CNN, NPR, ViceVox, and BuzzFeed, among others, have shed hundreds of journalists over the past year, including the author of the Atlantic article himself. Job losses among print, digital, and broadcast-news organizations grew by nearly 50 percent during 2023.

    The reason for all this professional carnage according to the article? Something something the Internet something something digital advertising revenues blah blah social media.

    One proposed solution calls for “direct and muscular government intervention” and legislation forcing Facebook and others to pay for “news” they feature off sources such as the New York Times. Yet, as journalist Glenn Greenwald asked rhetorically, “Will there ever come a moment when liberal journalists who work for corporate outlets, and who are being completely consumed by layoffs and financial failures and audience indifference, ask whether there’s anything they’ve done to contribute to the profession’s failure?”

    The answer of course is no, no one is going to ask but Glenn. Somewhere along the way (we’ll tag it as the beginning of the first Trump campaign of the modern era) journalism lost all pretext of objectivity and decided to devote itself fully toward advocacy. It is clear now the public wants accurate reporting, not advocacy, but never you mind, the media elites on each coast know better what you need. As long as the MSM traffics in falsehoods people will disappear from their audiences.

    Let’s look at one almost silly example: did Donald Trump says people should drink bleach to kill off Covid?

    No, Donald Trump did not suggest that people should drink bleach to kill off Covid. However, during a White House briefing in April 2020, Trump did make comments about the potential use of disinfectants and ultraviolet light to treat the virus. His remarks were widely criticized because they seemed to suggest the possibility of injecting or ingesting disinfectants, which would be extremely harmful. The media, however, would not be stopped, making the bleach thing into a meme, handing it off to Late Night, then picking it up again throughout the 2020 presidential campaign.

    Twelve months after the supposed statement, to keep things alive, Politico wrote “One year ago today, President Donald Trump took to the White House briefing room and encouraged his top health officials to study the injection of bleach into the human body as a means of fighting Covid. It was a watershed moment, soon to become iconic in the annals of presidential briefings. It arguably changed the course of political history.” “For me, it was the craziest and most surreal moment I had ever witnessed in a presidential press conference,” said ABC’s chief Washington correspondent.

    A year after the “fact” it is bad enough the media could not accurately report what was said but how about some four years later, twice in recent New York Times articles, on January 24 and on January 29, 2024 (“oblivious or worse, peddling bleach as a quack cure.”)

    The thing is Trump never said people should drink or inject bleach; knowing what he said is as easy as listening to what he said. Here it is in its entirety: “So, supposing we hit the body with a tremendous — whether it’s ultraviolet or just very powerful light — and I think you said that that hasn’t been checked, but you’re going to test it. And then I said, supposing you brought the light inside the body, which you can do either through the skin or in some other way, and I think you said you’re going to test that, too. It sounds interesting. And then I see the disinfectant, where it knocks it out in a minute. One minute. And is there a way we can do something like that, by injection inside or almost a cleaning. Because you see it gets in the lungs, and it does a tremendous number on the lungs. So it would be interesting to check that.” It was obvious Trump was talking via example, hypothetically in that hyperbolic style of his. It takes a selfish media mind to roll all that into an admonishment to the suffering American people to drink a poisonous substance but that’s what happened. Even four years later.

    There are so many other example which persist in the media as untruths, exaggerations, or something evil done by other presidents but uniquely ascribed to Trump. Think that he wrenched children from their parents at the border into concentration camps, that he denounced fallen soldiers as suckers, and that he incited a bloody insurrection to overturn an election, and still peddles the Big Lie to the point where he is supposedly Constitutionally ineligible to run for president.

    Journalism is at a crossroads at best (it may have already crossed into the abyss.) The old models of reader -supported or advertising-supported media no longer are sturdy and seem still to apply only to a few giants like the New York Times. Americans’ trust in the mass media’s reporting matches its lowest point in Gallup’s trend line, largely because of Democrats’ decreased trust (the Republicans were lost an election or two ago, see Russiagate, though independents still lead the two parties in lost trust.) Just 7 percent of Americans have “a great deal” of trust and confidence in the media, and 27 percent have “a fair amount.”

    Meanwhile, 28 percent of U.S. adults say they do not have very much confidence and 39 percent have none at all in newspapers, TV, and radio. Social media is still the least trustworthy sector, while simultaneously being one of the most read/seen. The declines for the MSM have been steady since peaking in 1977 at about 70 percent trust levels. It has gotten worse since Trump but you can’t blame it all on him. It’s the media’s own fault.

    The loss of trust is because of a perception the MSM is biased. Some 78 percent of conservatives think the mass media is biased, as compared with 44 percent of liberals and 50 percent of moderates. Only about 36 percent view mass media reporting as “just about right”. A September 2014 Gallup poll found that a plurality of Americans believe the media is “too liberal.”

    Half of Americans in a recent survey indicated they believe national news organizations intend to mislead, misinform or persuade the public to adopt a particular point of view through their reporting. The survey goes beyond others that have shown a low level of trust in the media to the startling point where many believe there is an intent to deceive. Asked whether they agreed with the statement that national news organizations do not intend to mislead, 50 percent said they disagreed. Only 25 percent agreed.

    The pattern is pretty clear: as long as the MSM is a significant source of misinformation never mind out-and-out lies, the people’s trust in it will continue to fall. We’ve reached a breaking point where many people believe the media intends to deceive. That distrust is entirely a self-own by the media, and finds itself expressed in the most direct terms. People literally are not buying what the MSM is selling.

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    Posted in Biden, Democracy, Post-Constitution America

    Joe Biden Parody Songs

    February 13, 2024 // 10 Comments »

    Did you know there was a whole genre out there of Joe Biden parody tunes? Most are quite professional, and riff off popular songs to mock the president. Some focus on Joe himself, falling here, sniffing a little girl’s hair there, while others prey on poor Hunter Biden, forced to make sleazy deals with Ukraine and China just to earn a living. Let’s take a look.

    One of the best is “Walk Like Joe Biden”, an A.I. tour de force that makes it seems like the Bangles are recreating their 1980s hit song “Walk Like an Egyptian” only with new lyrics mocking old Joe (do yourself a favor and follow the links with a right click, so they open in a new window and you can get back here for the rest of the list.) The video unfolds with a montage of Joe slipping ad falling in various locales, and Joe looking befuddled at numerous podiums. Then there are the lyrics — “the American president is doomed, the little old man can hardly move” and a shout out that Joe’s chances of being re-elected are “dangling “just like Hunter’s cigarette.” The song warns “if you want to know where it stops it ends with dementia and the cops.” The meta-gag of course are instructions on how to walk like Joe, back stiff, arms locked down, feet shuffling, as events spiral past. You could watch any Biden blooper reel for much of the same effect, but this has music that sticks in your head. Five stars!

    Crossing musical styles is “C’mon Man,” a sing-song pseudo rap A.I. extravaganza. The kicker here is each stupid thing Biden raps is an actual Biden quote (“You’re a lying dog-faced pony soldier”) all the misspent words and jangled phrases, plus the boasts about Cornpop and Joe’s many careers as a truck driver and Olive Garden server. The music part is just not as strong as “Walk Like an Egyptian” but it is good enough. Four stars.

    When the Coasters first recorded “Yakety Yak” in 1958 they never had this in mind. The musical quality picks up with the familiar tune, and the “Yakety Yak” visuals run through the now-familiar shots of Biden falling down Air Force One’s stairs and Biden falling down on a platform and Biden falling down… you get it. The singer has the nom de guerre of Parody Whitney, and has produced several Biden song parodies. One good one is “An Old Man’s Time” sung appropriately to the New Year’s tune “Auld Lang Syne” with some out-of-place drum machine in the background. Talking about Joe’s penchant for serial groping, the song smiles and says “at least he’s too slow to give chase.”

    Next up is the holiday favorite “Frosty the Snow Man,” with its rhyming Biden-esque intro line “…was a geriatric soul, with befuddled eyes and a curious nose.” By the second verse the “Snow Man” has become “the slow man” and the song is off running through the now-familiar Biden memes. Not inappropriately the visuals contrast scenes from a befuddled “Elf” movie with a befuddled Biden, unfortunately not a movie but all-too-real life. Finally there’s “I’m Too Sketchy for this (White) House” sung to the classic Right Said Fred tune “I’m Too Sexy for My Shirt.” Four Stars for all.

    Sticking with the classics is a wicked “Wizard of Oz” parody featuring Biden as the Scarecrow (“no brains”) and Nancy Pelosi as the Wicked Witch who is melted away by song’s end. Along the way Scarecrow meets up with an earnest AOC as Dorothy (clearly the best use of CGI since the technology was invented) and, wait for it, Donald Trump as the Great and Powerful Oz on his fiery throne. Joe as the Scarecrow lip syncing to the original tune “If I Only Had a Brain” is worth the price of admission. Another four stars for this one, folks.

    Funnier lyrics but lower production values hold back another worthy take on “Wizard of Oz” this one again with Biden as the Scarecrow. You know the song, “If I Only Had a Brain” but try it now with these words: “I could concentrate for hours, my presidential powers, to compensate Ukraine” and to handle Hunter, “To avoid repercussions I could pin it on the Russians, if I only had a brain.” Three stars.

    If you are old enough or cool enough to remember the 1970s, you must remember the band Foghat, known for their head banging stadium concerts. The guitar rocker “Slow Ride” becomes “Slow Biden” with a righteous drum line to carry you through. In addition to the great music, this one scores with some Biden clips rarely seen (“If you’re having trouble choosing between me and Trump you ain’t black”) and plenty of more familiar sniffing, groping, and stumbling visuals. Two and a half stars, man.

    If it is Hunter you’re after there is no better place to start then “Crack in the Cradle: The Joe and Hunter Biden Story” sung to the tune of Harry Chapin’s immortal “Cat’s in the Cradle.” As Hunter croons “you know I’m gonna be like you, Dad,” you may even tear up a smidgen with the understanding the apple does not fall very far from the tree.  A stand-out line is the chorus: “And there’s crack in his cradle and a spoon in his bib, Little Hunter Biden had whores in his crib.” Kinda says it all. Four stars despite low production values and some NSFW words for the clever lyrics. Similar comments on another Hunter Biden parody song, based on “Old Man” by Neil Young — “Old man, take a look at my life, I’m a lot like you…” Also, almost inevitable, is a take off of Eric Clapton’s “Cocaine” starring Hunter Biden and that mystery bag of marching powder found in the White House, and another version. Then there’s “Hunter Bought A Gun,”a “Janie’s Got A Gun” by Aerosmith parody. The Bidens give you an awful lot to work with.

    To be fair, there are three Trump parody songs for every one Biden parody, so for balance try “I Fought the Law (and the Law Won)” for its genius-level editing of Trump clips to give the impression the Orange Man is singing. The video gives you the song straight and makes its jokes via the visuals, of Trump dancing, the raid on Mar-a-Lago, and more. The uber joke, with the song’s title mirroring Trump’s legal woes, scores again and again. Similar comments for the one-joke (but it’s a good one joke) parody of Trump appearing to sing “I Will Survive.” Five huge stars.

    Check out “The Donald Called Down to Georgia,” a parody of all that post-election kerfuffle now in the courts, sung of course to the tune of “The Devil Went Down to Georgia.” Try out these lyrics: “The Donald called down to Georgia he was looking for some votes to steal, he was in a bind ’cause he was way behind, and he was tryin’ to make a deal.” Some NSFW lyrics here and there, and a hunk of decent fiddle playing carry this one. Three stars.

    Honorable mention to a brilliantly understated version of the Talking Heads’ “Once in a Lifetime” with Trump’s head superimposed over real singer David Bryne doing that dance. The lines from the song about “how did I get here?” ring especially poignant but they left out the classic line of Trump/Bryne asking “Is this my beautiful wife?” Same as it ever was. And don’t miss Donald Trump sings “Leaving On A Jet Plane” by John Denver with the sad goodbye lyrics shown over images of boxes of classified documents being hauled out of the White House. If that amuses you, don’t miss “(Wasted Away Again in) Mar-a-Lagoville” with some rougher editing around Trump himself singing the Jimmy Buffet classic — “some people claim that it’s Putin to blame, but no, it still ain’t my fault.”


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    Posted in Biden, Democracy, Post-Constitution America

    Harvard is Historically Anti-Semitic

    February 12, 2024 // 1 Comment »

    Not every critic of Israel is anti-Semitic, but the clown Harvard chose to co-chair its new task force on anti-Semitism certainly is. The only question post-Claudia Gay is whether the University is fully incompetent on matters like this, or historically anti-Semitic.
    The new co-chair of the task force on anti-Semitism (a sister task force was set up at the same time to combat Islamophobia) is Harvard professor of Jewish history Derek Penslar. Penslar said of anti-Semitism at Harvard “Outsiders took a very real problem and proceeded to exaggerate its scope” in apparent reference to deposed Harvard president Claudia Gay’s tacit acceptance of calls for genocide and other acts of violence as allowed under Harvard’s student conduct code.
    Anti-Semitic? Penslar last year signed a letter accusing Israel of apartheid and of seeking to “ethnically cleanse all territories under Israeli rule of their Palestinian population.” He extolled the virtues of seeing Israel through the lens of “settler colonialism,” defined as “a system of oppression based on genocide and colonialism, that aims to displace a population of a nation (oftentimes indigenous people) and replace it with a new settler population.” Before the Hamas attack on October 7, Penslar condemned the Israeli government, saying it was determined to “ethnically cleanse all territories under Israeli rule of their Palestinian population.” In a book published last year Penslar wrote, “Veins of hatred run through Jewish civilization.”

    The danger is as one writer damningly put it “From his perch at Harvard, a professor like Penslar can manipulate the discipline of Jewish history even beyond the confines of the Ivy League, simply by telling the non-Jewish academic world what it wants to hear, such as that ‘veins of hatred run through Jewish civilization.'”

    It is hard to see Penslar’s task force discovering Harvard is anti-Semitic for believing what the task force is likely to define as normal and acceptable, same as Claudia Gay’s own conclusion that calls for genocide are only bad in “some contexts.” It seems the fox has been put in charge of the hen house. Jonathan Greenblatt, of the Anti-Defamation League, posted of Penslar’s appointment: “Lessons in how not to combat antisemitism, Harvard edition.”

    The problem is modern anti-Semitism did not begin at Harvard with Claudia Gay’s ridiculous remarks. Jeremy Burton, of the Jewish Community Relations Council of Greater Boston, said the focus on Gay by donors, outsiders, DEI critics, and Jewish activists is a “false context” for addressing anti-Semitism. “She was president for about a month before October 7, if you count her actual time in office on campus. The problems at Harvard have been building for years, if not decades.” Burton cited reports of Israeli faculty and visiting students being harassed, Jewish students in certain departments not being welcomed if they are “insufficiently anti-Zionist,” and professors investigated for hostility toward Jews and Israeli students.

    Anti-Semitic? Harvard is home to a fellowship and a chair named after a man convicted of crimes against humanity in Nuremberg, Alfried Krupp. Krupp enslaved an estimated 100,000 Jews, including children, to work at his factory in Auschwitz. A Nuremberg prosecutor summed up the inhumanity saying “When they could no longer work, the SS took them away to be gassed.” Krupp’s foundation gave Harvard an initial two million dollars (approximately $12 million today, adjusted for inflation) to whitewash his legacy. It worked; the web pages for Harvard’s Krupp fellowship and the Krupp professorship say nothing about being named for a convicted war criminal.

    Krupp had his sentence commuted by U.S. High Commissioner for Germany John McCloy, a Harvard Law graduate who freed over two dozen convicted Nazis. McCloy also played a pivotal role in blocking America from bombing Auschwitz. He championed Japanese-American internment. Imagine the foundations of men tied to black slavery continuing to play a role in modern campus life with nary a whisper of protest; you can’t, it’s been fixed — “I believe we bear a moral responsibility to do what we can to address the persistent corrosive effects of those historical practices on individuals [slavery], on Harvard and on our society,” Lawrence Bacow, the then university president, wrote. The slavery study he spoke of was heralded as “a long overdue reckoning by an elite institution with its dark past.” Just not for Jews.

    Harvard marked its history with the Jews in different ways. The first Jew to be hired as an instructor was Judah Monis. He was the only Jew to receive a college degree in America before 1800, and was given a job by Harvard to teach Hebrew, but only on the condition he convert to Christianity. Not only were they seen by nativists as socialists, Jews were also seen by some Americans as being members of a genetically inferior race. They were crude. They were unwelcome.

    Anti-Semitism has been a historical issue within the Ivy League. In the early to mid-20th century, some Ivy League universities, including Harvard, implemented admission quotas limiting the number of Jewish students. This discriminatory practice persisted until the mid-20th century.

    As author Jerome Karabel explains in The Chosen: The Hidden History of Admission and Exclusion at Harvard, Yale, and Princeton, from founding until early in the twentieth century, the Ivies mostly admitted all comers who could pass a simple entrance examination. Men who were not of the proper background would generally self-select out. “These universities that had basically been finishing schools for Protestant boys who had come from elite boarding schools all of a sudden became engines of social mobility for aspiring dreamers from Jewish immigrant families,” said Mark Oppenheimer, of American Jewish University, and host of a podcast called Gate Crashers about the history of Jews in the Ivy League. More and more sons of Jewish immigrants applied for admission as part of the waves flowing into the U.S. from Eastern Europe. Columbia soon found that 40 percent of its entering class was Jewish. Harvard saw about 30 percent. A popular college song of the day went “Oh, Harvard’s run by millionaires, And Yale is run by booze, Cornell is run by farmers’ sons, Columbia’s run by Jews.”

    These schools responded to the “Jewish Problem” by devising ways to block applicants. Starting around 1910, admissions offices were established to screen for Jews, and admittance caps were instituted to block them. Schools began requesting letters of recommendation to gauge the “character and leadership” (but not the too pushy kind) of students, code-words for Protestant background, as Catholic immigrants were also not favored. Admission offices started to take notice of geographic diversity, athletic ability, alumni ties, and legacies, and the use of an interview to exclude Jews in the specific and sons of immigrants in general. Jewish students were largely poor and lived at home, with many of them working night jobs, so Columbia started requiring students to live in dormitories on campus. Eventually, Harvard and the others imposed straight-up quotas on Jews. Applicants were asked for their religion and that of their ancestors, and whether the family name had been changed. With these methods, up to the early 1960s, most Ivies kept Jews to 10 or 12 percent of each freshman class.

    “Antisemitism at Harvard is extremely disappointing and a huge problem,” Sam Lessin, running for a seat on Harvard’s Board of Overseers, said. “It needs to be solved but it’s also the canary in the coal mine in terms of a free speech problem.”

    The critical thing is to understand the actions of former Harvard president Claudia Gay, or the decision to chose Derek Penslar as co-chair of a committee on anti-Semitism, are made in context, both modern context and for Harvard, a historical one.

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    Posted in Biden, Democracy, Post-Constitution America

    Why Trump Will Win

    January 31, 2024 // 21 Comments »

    Gloom consumes America. Some 73 percent of respondents say the United States is on the wrong track, the highest portion since 1989, when that polling question was first asked. In similar polls, there’s been a prolonged downward trend in Americans’ satisfaction with the direction of the country, from a peak of 71 percent in 1999 to just 22 percent today. Biden’s 39 percent approval is the lowest of any president running for a second term a year out from the election. Inflation hit 8.9 percent. The cost of rent and food rose two or three times as much as incomes.

    So who believes Joe Biden and his running dogs in the liberal media when they say things are actually OK? What tiny 28 percent of America are they talking to? A whole intellectual industry developed to support Joe, making excuses why the dumb Americans in the heartland don’t see how well Bidenomics has left things for them. The industry has come up with three explanations. See if they make sense.

    It’s the Media, Stupid. This is part of a bigger problem, presupposing most of the American interior is made of dummies who believe everything they hear on places like Fox, part of an outrage industry. Never mind kitchen table economics, it’s all in your head, idiot.

    Referral Syndrome. This hypothesis comes from the Wall Street Journal, which speculates Americans see so many mass shootings, so much immigration chaos, so many overdose deaths, and proxy wars they simply feel bad about everything (which, economy aside, does not bode well for the incumbent.) So when pollsters ask their views on the economy, they get a negative response, because people just feel overwhelmingly negative.

    Fatalism. Pretending the economy is just dandy wouldn’t be complete with some candy from Paul Krugman. The New York Times’ resident soothsayer claims all is well if only you could see things from the perspective of a rich, white, Nobel prize-winning New Yorker who writes gibberish for a living. Krugman also postulates Trump supporters who believe Biden stole the 2020 election are so apocalyptic that they skew the whole nation’s outlook.

    While the inflation rate may be declining somewhat, the cost of food, rent, and transportation is still higher than pre-COVID levels. Affordable housing kills in most areas. The problem for Joe is these are not problems of perception, they are disasters surrounding hard-core home economics. We’re left with the conclusion maybe the economy really is treating the bulk of non-coastal Americans poorly, the ones who could not sell burgers or clean hotel rooms via Zoom during the pandemic and the ones for whom high mortgage interest rates mean the difference between a home of their own and barely scraping by to pay the (rising) rent. It is these people who will vote Trump, or stay home, but are unlikely to vote for the Biden record on the economy. It is not perception, it is reality. People know when they can afford to feed the kids and pay the rent and when they cannot.

    In this environment, for the first time since President Grover Cleveland in 1892, voters face the choice of basically two incumbents, two candidates running on their recent performance in the White House. One was president during a time when wages rose faster than inflation, when the stock market was standardly strong, when home loan rates were accessible, and one wasn’t. But it is more than dollars and sense which will see Trump win in a fair election. It is his understanding of the America that he rode to victory in 2016, and came close to using to win in 2020.

    Think of Hillbilly Elegy if you want to take the shortcut. Or as another pundit put it, “Trump rode a wave of pessimism to the White House — pessimism his detractors did not share because he was speaking about, and to, an America they either didn’t see or understood only as a caricature. But just as with this year, when liberal elites insist that things are going well while overwhelming majorities of Americans say they are not, Trump’s unflattering view captured the mood of the country.” Trump’s thesis may be truer today than it was the first time he ran on it — polls show most young people never expect to earn what their parents do now, and deaths of despair continue to rise. People tend to notice when they are doing better in an economy, and when they are not.

    Immigration under Trump was simple, and matched a large number of Americans’ thoughts: we may have enough.  As Trump said, “A nation without borders is not a nation at all. We must have a wall. The rule of law matters!” Yet under Biden a pattern of curtailment, thought once labeled racism is now edging toward policy in sanctuary cities: we may have enough. Biden in a way should be thanked for drawing such a stark contrast between his immigration policy and Trump’s, and what the coastal elite minority hold true and what the majority of inner Americans likely believe and will express by voting for Trump.

    They understand that wall hyperbole aside, enforcing one’s borders is a requirement of nationhood. Check out the shelters and sidewalks of Manhattan and Chicago, where it is obvious Biden’s immigration policy is a failure. Trump’s message was crudely delivered but astonishingly accurate, at least to those willing to see through the former to the latter. Call him a bigot, or a racist, or a fascist, but he was right about controlling the border. In fact, every other country in the world does so for itself.

    In the broader picture, there are a lot of people who believe immigrants threaten jobs and security. They believe we should bring our troops home from places like Iraq and let other nations such as Ukraine fend for themselves. They believe Hunter and Joe Biden sold influence to Ukraine and China and they believe a deep state exists. They want education but don’t want college to be free to those who won’t repay their loans. They believe welfare encourages people to stay home, and social security won’t be there for them. They want to own guns. And though they are the base, they not alone. Trump’s backing from white, college-educated Republicans doubled to 60 percent over the course of last year.

    And outside the MSM no one is buying the “end of democracy” argument. The simplest counter argument is that if Trump does not believe in the system, why is he following its rules and campaigning? Wouldn’t a wanna-be dictator, you know, act more dictatorial? Same for J6. Wouldn’t a proper insurrection, as opposed to a protest march that morphed into a tantrum of sorts, have some path toward success? Yet the J6 “insurrectionists” simply walked back out of the Capitol building on their own, and their supposed leader, Trump, did the same with the White House two weeks later. If that was a potential ending of democracy event, it was a pretty lame one.

    If Trump wanted to be a dictator he had four fine years to implement that and he did not and anyone willing to think about it knows that. Rednecks amuck in the Capitol for an hour or two is not the same as tanks on the Ellipse and anyone willing to think about it knows that. If anything the use of lawfare to jail or drive an opponent off the ballot seems as undemocratic as anything else. Like supporting the blue line on J6 and decrying it over George Floyd, hypocrisy is an ugly thing to build an election strategy around.

    Trump’s voters look for America and see Brazil. Their detractors blame the Electoral College, or talk radio, or redneck ignorance, or Putin. Trump’s win in 2016 and likely win in 2024 inexplicable? Try again.


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    Posted in Biden, Democracy, Post-Constitution America

    Biden’s Foreign Policy; the Biden Doctrine

    January 22, 2024 // 4 Comments »

    Joe Biden ordered airstrikes on Iraq, against Iranian-backed militants, in retaliation for recent attacks by those militants that severely injured three American soldiers. Joe didn’t consult with Congress or anyone else before ordering the strikes, and no declaration of war exists of course. Yet no one believes the militias, following their spanking, will disappear or stop harming Americans.

    That sums up the Biden Foreign Policy, call it a doctrine if you’d like: a series of geopolitically unsuccessful, inconsequential, mostly reactive unilateral actions, with no end game. Underlying it all is the sense that no one is particularly frightened, respectful or wary of American power anymore. Let’s see how this worked on a global scale over the last three bloody years.

    The disastrous evacuation of Kabul in August 2021 should have warned all of us we were dealing with foreign policy amateurs. The rush for the last planes was an expected unexpected event. Yet the Biden administration did not quietly start the evacuation in February with high-value personnel, nor did it negotiate ahead of time for third country landing rights. Mistakes made as long ago as Vietnam evacuating locals who worked with us were clear, yet Biden did not kick start processing SIV visas for translators and others until literally the last flights were scheduled out. The entire evacuation appeared as an unplanned free fall, just “land some planes and see if that works.” No endgame really, simply a unilateral decision to cap the evacuation off at a certain point in time and declare it over no matter who was or was not saved.

    Ukraine is some yellowed vision of cold war. The Biden plan was based on a Wonka-like act of imagination, that U.S. arms wielded by amateur fighters backed up by intelligence, space-based targeting, and special forces infiltrated on the ground would hastily defeat a determined opponent (See Afghanistan, failure of the same strategy, 2001-2003.) When the miracle cure strategy failed, there was no Plan B except to continue to pour arms in to a war that had no clear end game, that was not winnable, only sustainable. Meanwhile, Biden restrictions on domestic mining mean the United States is the largest purchaser of Russian enriched uranium. If the Russians are scared of American power they hide that well.

    The results have not been better elsewhere. The 2022 Russian invasion of Ukraine preceeded what one pundit described as “the 2023 brazen Chinese spy balloon’s uncontested trajectory over the United States, the recent Hamas invasion of Israel, the serial Iranian-fueled terrorist attacks on U.S. installations in Iraq and Syria, and the terrorist Houthis’ veritable absorption of the Red Sea. America’s enemies had become opportunistic, not deterred.” Biden took the bait at each open-ended opportunity, and now Joe is dangerously close to letting Gaza and Yemen spiral into a global conflict.

    And so another “coalition” fight, this time in Ukraine with NATO, ended up a U.S. primary struggle. It is NATO mostly walking away from the meat of the Ukraine struggle, and the baby NATO coalition elsewhere of France, Italy, and others that was supposed to control the Red Sea breaking down. It is a thin gruel of happy talk about caring for civilians backed up by unlimited arms to Israel, handled so poorly diplomatically that the U.S. has inherited pariah status globally. The modern version of American power was demonstrated when Egypt snubbed Joe Biden’s visit over the mess in Gaza. The question of Palestine, always simmering, is now another major issue to divide Red and Blue and further polarize society. In addition to receiving $6 billion in frozen oil funds from Biden as a ransom for five American hostages, Iran controls the playbook, attacking with impunity via its proxies across Iraq, Syria, and southern Lebanon; Iran’s partners carried out more than 100 attacks on U.S. forces in Iraq, Syria and the Red Sea.  They decide if and when the 1:1 conflict with Israel goes regional, and the U.S. will be again forced to react. The Houthis, also Iran-backed, have dragged the U.S. into a broad promise to keep the Red Sea open to shipping, as the world rolls its eyes as Pax Americana once again looks like a punchline. Can anyone say we are still indispensable?

    Another Biden foreign policy disaster has come home, literally, in the immigration crisis. For reasons too vague to enunciate, the Biden administration did away with any semblance of immigration law and flung open the southern border to anyone interested in wandering in. Already more than eight million illegal entrants have come across, with another quarter-million entering each month. As in Ukraine and elsewhere, there is no endgame. When will the border close? How much will caring for the millions cost (New York City has processed more than 160,000 migrants; some 70,000 remain in the city’s care. In Denver, caring for the new migrants has consumed 10 percent of the city’s budget)? The United States has now exceeded, both in real numbers and in percentages, all past numbers of non-native born American residents. What impact on our greater society will such an influx have, especially given how it is targeted at a handful of cities? Will the Russians ever surrender? What about the immigrants?

    Three years ago, there was no war in Ukraine and certainly no U.S. military involvement in the Crimea and Donbas. Israel and Hamas existed in their tinder-like stasis condition, no brutal massacre of 1,600 Jews (30 of whom were Americans) and no invasion of Gaza. Campus protestors limited their protestations that they were not anti-Semitic in their hatred of Israel. Iran and the U.S. cooperated on fighting ISIS in Iraq, uneasy partners for certain but not shooting cousins as now. The Houthi struggle was confined within Yemen’s borders. On the positive side, efforts were being made to watch diplomacy bloom with North Korea, which instead is now test firing missiles aplomb once again. Biden has made no progress on China either to limit their opportunistic stance or reduce their hold over America economically. Biden has largely ignored most of Africa and South America as well as the world’s most populous democracy (and nuclear power) India. It is impossible to call it progress and all too easy to call it sadly the Biden Doctrine.


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    Posted in Biden, Democracy, Post-Constitution America

    Somebody is in Trouble Over Afghanistan

    January 3, 2024 // 8 Comments »

    Boy oh boy, if anyone looks seriously into the end game in Afghanistan is somebody gonna be in trouble. See, according to the Special Inspector General for Afghan Reconstruction (SIGAR) the collapse of the Afghan army and government was mostly our own fault. No dessert for you!

    You remember the war in Afghanistan, don’t you? Anyone? Bueller? See it was America’s longest war, stretching from 2001 until 2021, long enough that soldiers who deployed near the end had not even been born when it all started. Now that’s a war! The thing is, the war accomplished nothing in its 20 years. The situation on the ground — Taliban in charge, open territory for any terrorist needing an AirBnB — is pretty much status quo September 2001 except it is now 2024.

    And now it turns out that’s mostly our fault. SIGAR released its reportCollapse of the Afghan National Defense and Security Forces: An Assessment of the Factors That Led to Its Demise. It posits two major factors that lead to the demise: unclear U.S. war aims, and corruption and mismanagement on the part of the Afghan government created, advised, and funded by the U.S. (so that’s sorta on us, too.) General James Mattis, who served as Mad Dog,  head of Central Command from 2010 to 2013, and as Secretary of Defense from 2017 to 2018, told SIGAR, “The lack of political clarity on ends, ways, and means meant we were always wondering if we were still going to be here next year. Were we going to be funded next year? We weren’t sure whether to attack, retreat or go sideways.”

    SIGAR found that the single most important factor in the Afghan National Defense and Security Forces’ (ANDSF) collapse in August 2021 was the decision by two U.S. presidents to withdraw U.S. military and contractors from Afghanistan, while Afghan forces remained unable to sustain themselves. One former U.S. commander in Afghanistan told SIGAR, “We built that army to run on contractor support. Without it, it can’t function. When the contractors pulled out, it was like we pulled all the sticks out of the jenga pile and expected it to stay up.” The sad-great thing about those quotes is that they could have been applied at most any point in the 20 year war. Lack of political clarity? It was a couple of years into the war itself before anyone knew the reason for the war (it turned out to be “terrorism.”) An unstainable Afghan military? Maybe someone could point out where in say year 16 the army was sustainable. Boy, heads are gonna roll over that one! All we need to do is find out who was responsible for creating a sustainable army and political clarity and roast ’em.

    The other factor which contributed to the demise of the Afghan army was the last-minute wholesale restructuring of Afghanistan’s security institutions. In 2021, amid rapidly deteriorating security, President Ghani reshuffled most of his security officials, often replacing them with fellow ethnic Pashtuns. These leadership changes were part of a broader pattern of politicization and ethnicization (in favor of Pashtuns) of the security sector in the final years of the Ghani administration.

    One analyst told SIGAR, “Districts collapsed not because of the army, but because of that restructuring that happened and the fact that none of [the replacement police chiefs] had connections” at the district level. He claimed it was the police that did most of the fighting in the final 18 months, not the army. By undermining the morale and political legitimacy of the police, this restructuring directly contributed to the collapse in August 2021. Ethnic competition between Pashtuns and non-Pashtuns was likely the single biggest source of dysfunction within the ANDSF. But some former Afghan officials described other types of friction. One former MOD official described competition between the younger and older generation of officers, between the jihadis and the professional officers, and between ethnicities. All these issues distracted from the fight, he said. Now, see, someone on the American side should have been watching for that!

    This strategic level mismanagement had a direct effect in the field. “Overnight, 98 percent of U.S. air strikes had ceased… the Doha agreement’s psychological implication was so great that the average Afghan soldier felt this idea of abandonment… U.S. soldiers were confused about what to engage and what to not. On an hourly basis, the U.S. military had to coordinate with the Doha office of Ambassador Khalilzad and others from the State Department to get clarification on what they could do,” said one former Afghan Army corps commander. “They [U.S. partners] said it was not right, but they have to follow orders. They would see the Taliban attacking our checkpoints. They would have videos of the Taliban doing it. But they would say we are not able to engage, because we have limitations. There was also so much concern about civilians, which gave the Taliban an advantage,” explained a former Afghan Army General.

    According to an senior Afghan official, it was not until President Biden’s April 2021, announcement of the final troop and contractor withdrawal date that Afghan President Ghani’s inner circle said they realized that the ANDSF had no supply and logistics capability. Although the Afghan government had operated in this way for nearly 20 years, their realization came only four months before its collapse.

    Then there was the lack of coordination between the U.S. and the Afghan governments as the Americans negotiating in Doha cut their own deals with the Taliban to enable a quick exit. One former Afghan government official told SIGAR that following the U.S.-Taliban agreement, President Ghani began to suspect that the United States wanted to remove him from power.  That official and a former Afghan general believed Ghani feared a military coup.  According to the general, Ghani became a “paranoid president… afraid of his own countrymen” and of U.S.-trained Afghan officers. According to a former Afghan general, in the week before Kabul fell, President Ghani replaced the new generation of young U.S.-trained Afghan officers with an old guard of Communist generals in almost all of the army corps. Ghani, that general said, was “changing commanders constantly [to] bring back some of the old-school Communist generals who [he] saw as loyal to him, instead of these American-trained young officers who he [mostly] feared.”

    Afghan officials, largely removed from the negotiations, struggled most of all to understand what the United States had agreed to with the Taliban. According to Afghan government officials, the U.S. military never clearly communicated the specifics of its policy changes to the Ghani administration. According to a former Afghan general, in a broad sense, the U.S. military took on the role of a referee and watched the Afghan government and Taliban fight, something the general referred to as “a sick game.” According to that general, Afghan troops had not only lost U.S. support for offensive operations, they no longer knew if or when U.S. forces would come to their defense. U.S. inaction fueled mistrust among the ANDSF toward the United States and their own government. The Taliban’s operations and tactics, however, suggested that they may have had a better understanding of new levels of support the United States was willing to provide to the ANDSF following the signing of the U.S.-Taliban agreement. For example, under the U.S.-Taliban agreement’s rules, U.S. aircraft could not target the Taliban groups that were waiting more than 500 meters away—the groups “beyond the contact” that would engage in the second, third, or fourth wave to defeat the last ANDSF units. A senior Afghan official said this was a loophole that the Taliban used in their targeting to their advantage.

    SIGAR’s sad conclusion to the report could have been written at any point, including in 1968. “The U.S. approach to reconstructing the ANDSF lacked the political will to dedicate the time and resources necessary to reconstruct an entire security sector in a war-torn and impoverished country. As a result, the U.S. created an ANDSF that could not operate independently, milestones for ANDSF capability development were unrealistic, and the eventual collapse of the ANDSF was predictable. After 20 years of training and development, the ANDSF never became a cohesive, substantive force capable of operating on its own. The U.S. and Afghan governments share in the blame. Neither side appeared to have the political commitment to doing what it would take to address the challenges, including devoting the time and resources necessary to develop a professional ANDSF, a multi-generational process. In essence, U.S. and Afghan efforts to cultivate an effective and sustainable security assistance sector were likely to fail from the beginning.”

    “Likely to fail from the beginning” is a helluva epitaph for U.S. policy in Afghanistan. If only SIGAR could find the guys responsible, we might avoid another round in Ukraine, where our policy depends on another U.S. patsy leader whose army is now totally dependent on U.S. funding, supplies, and advisement in a war that cannot be won, only sustained at great expense.

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    Posted in Biden, Democracy, Post-Constitution America

    Trump’s Plan for the Deep State (Project 2025 and Schedule F)

    December 15, 2023 // 6 Comments »

    They just won’t stop. The same day we wrote about media exaggeration of Trump’s second term plans to “seize power,” the New York Times comes out with an end-of-days Trump Apocalypse story — “Trump Has a Master Plan for Destroying the ‘Deep State.’” Their version of term 2.0 reads like an AI-generated text of Mein Kampf. But what might Trump really do his second term? Don’t worry, it’s all good unless you like the Deep State.

    To start, Trump will not repeat a mistake from term 1.0, and will quickly fill his political appointee positions with allies. This sounds like a shocker until a) you realize this is what every new president does and b) Trump was roundly criticized in term 1.0 for not filling the ranks fast enough and thus somehow endangering America. Very likely never expecting to win, and not being a lifetime pol, Trump took office without a bench team, without a folder of thousands of resumes from party loyalists and think tank exiles looking for work. In Biden’s case, he finished the task fast by basically picking up most of the under-employed Obama administration hacks and those still grouchy because their promised Hillary Administration jobs never materialized.

    Trump this time seems more prepared. Every president has some 4,000 appointed positions to fill. Every president fills these with loyalists, party hacks, or in the case of jobs like ambassadorships, wealthy donors as payback. In the case of term 2.0, in addition to the usual suspects, the Heritage Foundation has been compiling and vetting some 20,000 resumes. The chosen should come through that process enthusiastic to carry out the peoples’ will having elected Trump, and are unlikely to form the core of a Deep State “resistance” as during term 1.0. You can submit your resume online. To ensure all these appointees are ready to go to work on Day One, Heritage is also offering an online course to train them up for the task. You can also apply to enroll online. The thousands of jobs which need to be filled are listed in the Plum book, alongside the expected salary, everything from Secretary of State to Member of the Morris K. Udall Scholarship and Excellence in National Environmental Policy Foundation. This initiative and most of the others comes from the Heritage Foundation’s2025 Presidential Transition Project 2025.

    Also in planning is the implementation of changes to Schedule F, which shields stay-in-place-forever Civil Servants from political influence. Unfortunately what was intended in good faith to create a merit system inside a government where civil servants’ allegiance was owed to the public and not the White House, ended up as a bubble of invincibility around many who do their work slowly and without interest. Though the Executive Order was written during the chaotic end of term 1.0, high on a Trump policy list for term 2.0 would be implementing these changes to Schedule F. The action would convert as many as 50,000 civil servant positions (still leaving about two million Federal civilian positions untouched) into political appointees, allowing deadwood to be cut away and jobs filled with people in line with the administration’s goals. Action, rather than nonaction, is the goal. If actually seen to fruition, this would be the most profound change to the civil service system since its creation in 1883. Impact might be greatest in institutions like the Department of Justice, which the liberal media fears will be weaponized by Trump to go after Biden and others in the same way the Mueller investigation, two impeachments, and multiple indictments have dogged Trump since leaving office.

    Aside from personnel changes, it is Trump’s policy plans that scare the liberal media the most, having worked themselves into a froth in term 1.0 by mislabeling everything from immigrant holding centers (“concentration camps”) to mob violence (“insurrection to overthrow the government of the United States at the People’s House” and all that.) Project 2025 has a long policy section, dealing with the issues department-by-department. Here’s a look at what they have in mind for the Department of State as an example. State under Obama/Hillary had morphed into the Department of Nice, working full time for women’s and LGBT rights, climate change and just about everything but making America great. It was a center of “the resistance,” grinding out dissent cables on matters outside its own purview, such as domestic immigration policy and war plans for Syria.

    According to Plan 2025, Trump should remake the Department into a tool of his foreign policy instead of the adversary it was during term 1.0 (see the scuttling of rapprochement with North Korea.) High on the list is to “focus on core diplomatic activities, and stop promoting policies birthed in the American culture wars. The United States should focus on core security, economic, and human rights engagement… and reject the promotion of divisive policies that hurt the deepening of shared goals.”

    More broadly, “there is a tug-of-war between Presidents and bureaucracies— and that resistance is much starker under conservative Presidents, due largely to the fact that large swaths of the State Department’s workforce are left-wing and predisposed to disagree with a conservative President’s policy agenda and vision. It should not and cannot be this way. A major source, if not the major source, of the State Department’s ineffectiveness lies in its institutional belief that it is an independent institution that knows what is best for the United States, sets its own foreign policy, and does not need direction from an elected President.”

    Other State-centric policy goals will be the freeze all in-process negotiations for review, conduct a comprehensive cost-benefit analysis of U.S. participation in all international organizations, and refocus policy on China, Venezuela, Iran, Russia, and North Korea. This will be done in conjunction with internal housekeeping, specifically to “develop a reorganization strategy. Despite periodic attempts by previous Administrations (including the Trump Administration) to make more than cosmetic changes to the State Department, its structure has remained largely unchanged since the 20th century. The State Department will better serve future Administrations, regardless of party, if it were to be meaningfully streamlined. The next Administration should develop a complete hypothetical reorganization of the department—one which would tighten accountability to political leadership, reduce overhead, eliminate redundancy, waste fewer taxpayer resources, and recommend additional personnel-related changes for improvement of function. Such reorganization could be creative, but also carefully review specific structure-related problems that have been documented over the years.” In other words, heads will roll in a staid, uncreative bureaucracy already on record as opposing most of Trump’s foreign policy goals and with an agenda of its own.

    The final set of clues as to what a Trump administration 2.0 policy might look like rests in Heritage’s 180-day Transition Playbook, which includes a comprehensive, concrete transition plan for each federal agency. The Playbook will provide the next President a road map for doing that. You can read it all in eye-numbing detail (they’re not kidding, even the Consumer Financial Protection Bureau gets its own road map to Trumpism.)

    It is possible Trump and his advisors won’t pay a whit of attention to Project 2025 and its recommendations, and may discard most of the 20,000 resumes Heritage hopes to pass on during the transition period following the 2024 election. Still, if you are looking for clues as to what might follow in Trump 2.0, getting the policy wonk-level view from documents such as Project 2025 may be as good a place to start as any. But read it dispassionately; it is a serious to-do list for transitioning a liberal government structure to one flavor of a conservative one. There should be no fear democracy will disappear from these shores in the process.

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    Posted in Biden, Democracy, Post-Constitution America

    Trump and the First Amendment, Both on Trial, Again

    December 9, 2023 // 4 Comments »

    No former president has challenged the limits of freedom of expression like Donald Trump. At times rude and always overbearing, Trump has tested the boundaries of what can be called political speech. Here’s the latest.

    The most significant challenge to the First Amendment came during Trump’s penalty phase trial for fraud, based on his over-valuing his properties in New York to obtain favorable loan rates. Trump muscle-tussled there with the presiding judge, Arthur Engoron and, oddly, his law clerk seated beside him on the bench. Already upset over what he felt was the clerk’s overextended involvement in the trial (to include whispering in the judge’s ear) Trump seized on a vanilla selfie photo of the clerk with Democratic Senator Charles Schumer to taunt her with the phrase “Schumer’s girlfriend” and insinuate as a Democrat the clerk was inherently biased against Trump.  In the way things work in 2023, these fifth grade-level slurs plus a few Trump complaints online about Engoron himself being biased morphed into “threats” somehow. Engoron went as far as to suggest Trump was sending attack messages to his MAGA army (“targeting”) and that lives were in danger.

    In retaliation Judge Engoron slapped a gag order on Trump, later extended to his attorneys as well. The order prohibited Trump from commenting on the trial, out loud, in the press, or on social media, and specifically said the law clerk was off-limits. Trump paid little attention to the order and was fined twice, for a total of $15,000, for violating it. Trump called Engoron an “extremely hostile” judge. His lawyers said there was evidence of “tangible and overwhelming” bias. Trump’s lawyers then filed a lawsuit against Engoron challenging his gag order as a violation of the First Amendment.

    Lawyers for Engoron argued he and his staff received hundreds of anti-Semitic calls and letters. They blamed Trump’s comments about Engoron and the clerk for amplifying his supporters’ anger toward them and said the clerk is “playing Whack-A-Mole now trying to block her phone number.” “It’s not that Mr. Trump has directly issued threats to the staff and Judge Engoron, it’s that what he’s said has led his constituents” to make threats, the lawyers argued, comparing the potential effect to the January 6 riot and a violent attack on Nancy Pelosi’s husband. “That is not political speech. That is threatening behavior and it should be stopped,” Engoron’s lawyers argued.

    The appeals forum which heard the case disagreed, particularly about the part saying what Trump was engaged in was not political speech. Judge David Friedman of the state’s intermediate appeals court issued a temporary stay suspending the Engoron gag order and allowing the former president to speak freely about court staff while the longer appeals process plays out. Friedman questioned “Engoron’s authority to police what Trump says outside the courtroom. He also disputed the trial judge’s contention that restricting the 2024 Republican front-runner’s speech was necessary or the right remedy to protect his staff’s safety.”

    Another gag attempt was also struck down last month, after the judge overseeing Trump’s Washington J6 case briefly paused a gag order she had imposed on him. Trump reacted to this three times in three days, calling Special Counsel Jack Smith “deranged.” Twice he weighed in about the deposition testimony of his former chief of staff, Mark Meadows, who could end up a witness at the trial. These moves prompted Smith’s team to ask the judge, Tanya Chutkan, to reinstate the gag order. She put the order back in place, though it has been frozen again as a federal appeals court considers whether Judge Chutkan properly imposed it in the first place. That temporary suspension left Trump free of all of the gag orders placed on him.

    Long term, a federal appeals court panel appeared poised to significantly narrow the gag order imposed against Donald Trump by the J6 judge Chutkan. The three-judge D.C. Circuit Court of Appeals panel raised concerns the order — which bars Trump from criticizing witnesses, prosecutors, and courthouse staff — created murky restrictions stifling the former president’s right to push back against his detractors, particularly in the heat of the campaign.

    What at first seems novel — it happened mostly on social media!– and soooooooooo Trump — the insults, the elementary school-quality teasing — was in fact at the core of what the First Amendment is all about. Political speech is among the most protected forms of speech, more so political speech critiquing the government. In fact not novel at all, Trump was engaged in the most basic form of expression designed to be protected by the First Amendment.

    Judge Engoron, standing in for King George here, played the role of evil government perfectly. He chose to use the power of government, the gag order, etc., to stop Trump (who claims the trial is political persecution in the first place) from criticizing the government, in the guise of his court, and then doubled-down by extending the order to Trump’s lawyers, and then triple-downed the whole mess saying the gag applied 24/7 to those named, all way beyond the limited point of a gag order (proper use is almost always to shield important information from a jury to not prejudice a case.) A gag order should enhance democracy by protecting the right to a trial by jury, not run rough shod over it silencing the political speech of someone on trial.

    The hardest thing sometimes to accept about the First Amendment is it often protects speech you don’t like made by people you don’t like, in this case Trump, who is presumed crude and guilty by some half of the electorate. This idea is captured in the quote”I disapprove of what you say, but I will defend to the death your right to say it,” often attributed to Voltaire, and apparently missing from both Judge Engoron’s and most undergraduates’ education. Those who bleat support for Israel/support for Palestine has no place on campus fall squarely into the same narrow box as Engoron, wanting to block speech which personally threatens them but does not rise to the level of threat established by the Supreme Court, or offends them, somehow believing the First Amendment does not protect “hate speech.” While speech might be offensive — or even feel threatening — to some people, to others “it is an expression of a political opinion, an unfiltered reaction to a recent event, or an attempt to rally support for a cause. The freedom to share provocative ideas and spark robust debate about political issues is essential to democracy, social justice, and progress.”

    That’s exactly what Trump is doing, criticizing his trials and their participants in real time via press conferences and especially social media, all protected by the 1A. Victory Trump, victory First Amendment.




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    Posted in Biden, Democracy, Post-Constitution America

    Apocalypse Trump

    November 28, 2023 // 17 Comments »

    One of the fads in the liberal media is for Trump horror stories, Apocalypse Trump, should he be re-elected as president. Like political porn, there may be no real point to all this other than to titillate, although there could also be an underlying strategy try and con the proles into not voting Trump in 2024. Either way, it’s worth reading the horror tales just to laugh at what the writers’ imagine a second Trump term might be like.

    The Los Angeles Times gets you the inside baseball the action with an article headlined “Trump promises vengeance and power grabs if he wins in 2024. Here’s the plan.” Save yourself the trouble of looking; there are no named sources to almost all of these descriptions of Trump 2.0, though they are presented as certainties. The Times begins with Inauguration Day, stating as fact “anticipating widespread protests against his second term, Trump and allies reportedly are drafting plans to invoke the Insurrection Act in his first hours back in the White House — thereby confirming the expected protesters’ likely point: Trump is a danger to liberty and constitutional governance.” The author doesn’t seem to remember how the Insurrection Act, last used in 1992 to quell riots in L.A., did not end liberty and/or the Constitution. But it wasn’t Trump you see, so OK!

    And that’s just one of many MAGA plans in the works, as the Washington Post reported, all aimed at making good on what the writer feels is Trump’s central promise of the 2024 campaign: retribution. According to the Post, Trump allies are “mapping out specific plans for using the federal government to punish critics and opponents,” even naming individuals to be investigated and prosecuted. Ironic prose given Trump  is neck deep into five legal battles, two with the Federal government, since he left office, and that the FBI was used even while he was in office to spy on him in an effort to prove he was a Russian spy.

    It is also ironic Trump has all these plans to use the judicial system against his enemies. First of course because declaring himself something of a dictator you’d think Trump could bypass all that innocent until guilty stuff that bogs down trials and just kick in doors. More important, why would Dictator Trump bother with “justice” at all? After all, writes the Los Angeles Times, “His obnoxious outbursts this week in his New York civil trial over financial skulduggery [sic] were just the latest evidence of his disdain for the law and the judicial system. And we haven’t even gotten to his three criminal trials for seeking to overturn Biden’s election and making off with government documents. No one — not witnesses, prosecutors or judges — is immune from his attacks and the death threats that follow.” Jen Psaki separately warned MSNBC viewers if Trump regains office he would “unravel the rule of law as we know it.” Jamelle Bouie of the Times warns “it looks an awful lot like a set of plans meant to give the former president the power and unchecked authority of a strongman.”

    Ah, death threats. One cornerstone of Apocalypse Trump is he controls a zombie army of MAGA believers that he can direct against adversaries — “targeting” in the words of one judge. Another reason to question his “planned” use of the court system. Why not just release the hounds? After all, why not make good on his claim under the Constitution’s Article II, “I have the right to do whatever I want as president,” made when everyone was saying Trump was a Russkie spy. Nonetheless, the system it is. Trump has vowed to appoint a special prosecutor to “go after” President Biden and his family. The Washington Post reports Trump told advisers he wants the Justice Department to investigate his former chief of staff, John Kelly, and former attorney general Bill Barr, as well as his ex-attorney Ty Cobb, and former Joint Chiefs of Staff chairman General Mark Milley. Trump also talked of prosecuting officials at the FBI/Justice Department.

    Here’s how it will work, using justice to commit unjust acts. The Post, to the rescue to the confused, says “To facilitate Trump’s ability to direct Justice Department actions, his associates have been drafting plans to dispense with 50 years of policy and practice intended to shield criminal prosecutions from political considerations.” The Post quotes “It would resemble a banana republic if people came into office and started going after their opponents willy-nilly,” said Saikrishna Prakash, a constitutional law professor at the University of Virginia who studies executive power. “It’s hardly something we should aspire to.”

    If irony was water we’d all have drowned by now.

    It wouldn’t be a party unless The New York Times weighed in. They succinctly state “Donald J. Trump and his allies are planning a sweeping expansion of presidential power over the machinery of government if voters return him to the White House in 2025, reshaping the structure of the executive branch to concentrate far greater authority directly in his hands. Mr. Trump intends to bring independent agencies under direct presidential control.” He’ll do this by “stripping employment protections from tens of thousands of career civil servants, making it easier to replace them if they are deemed obstacles to his agenda. And he plans to scour the intelligence agencies, the State Department and the defense bureaucracies to remove officials he has vilified as ‘the sick political class that hates our country.’” The New Republic wrote an article headlined “Inside Trump’s Fascist Plan to Control All Federal Agencies if He Wins.” Tom Nichols wrote in the Atlantic there are “plans for a dictatorship that should appall every American.”

    And let’s not forget everyone’s favorite Apocalypse Trump subject, immigration. There, according to the New York Times, Trump is conjuring up “sweeping raids, giant camps and mass deportations,” claiming “If he regains power, Donald Trump wants not only to revive some of the immigration policies criticized as draconian during his presidency, but expand and toughen them.” Trump supposedly plans to ban people from Muslim-majority nations and reimpose a Covid-era policy of refusing asylum claims based on his feeling migrants carry other infectious diseases like tuberculosis. He plans to deputize local police officers and the National Guard voluntarily contributed by Republican-run states to carry out sweeping raids. And to get around any refusal by Congress to appropriate funds, Trump would redirect money in the military budget.

    Are you not entertained? That may be the only purpose of the Apocalypse Trump genre, garnering clicks. It stands then to reason that to keep the snowball rolling the claims toward the Apocalypse, the tall tales, need to become increasingly dramatic, topping yesterday’s dopamine hit. Do a quick Google search using the phrase “Trump will seize control” to see the latest, as well as some greatest hits. These types of stories were popular during Trump 1.0, putting words into his mouth and distorting those that came out, assigning nefarious intent to even the simplest Executive Order. A favorite fretted over Trump seizing control of the FEMA emergency broadcast system and the whole Internet to disseminate propaganda and control his minions. NBC News helpfully uncovered the fact “Trump can’t use FEMA’s wireless alerts to send personal messages” a question which apparently had not come up previously in the 80-odd-years the original Cold War system has been in place.

    A second driver of all this “journalism” is a desperate attempt to convince on-the-fence voters to not vote for Trump. After all, the Los Angeles Times made their intent for this advocacy pretty clear: “Too many voters are disengaged, grumpy that their choice seems to be coming down to Trump vs. Biden. As if those choices were comparably distasteful when, in fact, one is vanilla and the other is nitroglycerin.” The idea here is to use the tools of the media to scare the proles into not voting for Trump for fear of bringing on the end of Constitutional government in the United States. You’d think people would be tired by now with these “sky is falling” pronouncements but apparently you’d be wrong given the sheer bulk of them, and the crazier-than-last-time feel most have.

    The possible effectiveness of this strategy assumes most Trump voters, for gosh sakes 50 percent of the entire country, are too dumb to see what is right in front of them, fascism itself. But since Trump has not been kind enough to write out a Mein Kampf-like manifesto of all the dastardliest deeds he intends to do, America’s liberal media is doing it for him. No mind Trump is the only recent president not to start or join a new war; he is a war monger. No mind Trump tried to restart relations with North Korea via old-fashioned diplomacy; we are on the verge of nuclear disaster. No matter the state of the economy or decisions on Covid which resonate well in hindsight, he is clownishly wrong. No mind Trump has participated according to the law in every legal action against him, he does not believe in the rule of law. Oh, and former Trump lawyer Michael Cohen is so scared about what will happen in Term 2.0 he is planning to leave the country, so there is an upside.


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    Posted in Biden, Democracy, Post-Constitution America