Month: December 2022

(In Living Color)

One Show a Night

When I  was a kid, I was only allowed to watch one hour of television a night, plus the news.  It’s funny.  Here I was, the kid of a television station manager, and I was restricted on how much TV I could see.  But that was my parent’s “rule”.  There was homework to do, and books to read, and conversations to be part of.  So the one hour was “special”.  

One of the shows I did watch was, as the announcer said; “…THE FBI (in living color), a Quinn Martin Production, starring Ephrem Zimbalist Jr.”  The show told the story of FBI Special Agent Lewis Erskine, who travelled the country to keep law and order.  It was on the air from 1965 to 1974, long after my “one hour rule” was no longer enforced.   It closely upheld the “standards” of the real FBI, and the infamous Director J Edgar Hoover took a strong interest in the show.  The FBI wasn’t portrayed as a “namby-pamby”  liberal-loving organization.  The FBI enforced the law, no matter what.  They stood against crime and terrorism and violent protests against the government. 

J Edgar Hoover

That pretty much mirrored Hoover’s FBI, the one that  investigated Martin Luther King as a Communist, and infiltrated many of the student protest movements.  In fact, during the Vietnam Era, a young comedian, George Carlin did a bit about the FBI’s habit of tapping private phone lines.  Carlin joked, that we should answer our phone, “F#*K Hoover, may I help you,” to let the FBI know how we felt.

The FBI infiltrated the student protest movement, the civil rights movement, the anti-nuclear weapons movement, and the climate change movement.  To be fair, they also risked lives to infiltrate the Ku Klux Klan, but it certainly didn’t feel like there was a balance between left and right.  Hoover upheld conservative values, and attacked liberal alternatives.

Law and Order

Ephrem Zimbalist Junior received an honorary membership in the Retired FBI Agent Association in 1985, eleven years after the show ended.  Even as late as 2009, FBI Director Robert Mueller presented him with a plaque for his positive portrayal of their organization.

Peter Strzok, the former FBI Counter-Intelligence Agent who was ousted during the Trump-Russia investigation said it best.  The FBI is dedicated to law and order, and because of that, it is a highly conservative organization.   As Strzok put it, no one talks about politics in the FBI, but they all know where they stand.  The FBI stopped gangsters, then mobsters, then Communists, then protestors.  After 9-11, the mission changed to stop terrorism.  The FBI “liberally” used the enhanced powers in the “Patriot Act” to monitor communications, from emails to cell phones.  Robert Mueller, the Director who started on September 10^th, made the FBI the “point of the spear” of America’s response to terrorism.

Crossfire Hurricane

His successor was James Comey, the Deputy Attorney General under George W Bush.  Comey ordered the investigation of Hillary Clinton, Operation “Mid-Year Exam”.  When Comey decided that the Obama Justice Department wouldn’t handle it correctly, he broke precedent by personally announcing that the FBI would not recommend Clinton be charged with a crime.  

Then Clinton’s emails come up again on the computer of Anthony Weiner. He was the former Congressman.under investigation for sending pornography to a child. The emails turned up just weeks before the 2016 election, and Comey struggled.  It was Justice Department policy NOT to interfere in an election.  Reopening the investigation two weeks before election day would definitely “interfere”.  Comey wrote that he felt “obligated” to make the investigation public.  But there is an alternative story, perhaps more persuasive. 

Trump campaign advisor Rudy Giuliani had strong ties in the New York FBI office.  The Weiner investigation and the Clinton connection was already leaked to Giuliani, by agents working on the case.  Comey really had the choice of trying to control the information himself, or have it leak out of his New York office.  So he announced that he was re-opening the Clinton Investigation, Mid=Year Exam. That action that changed the outcome of the 2016 Presidential election.

At the same time, Comey was well aware that there was a continuing counter-intelligence investigation into the Trump campaign contacts with Russian Intelligence assets. The code name was “Crossfire Hurricane”.  But he chose to hold that so close to the vest, that nothing was heard before the election.  Like it or not, Comey “outed” the Clinton investigation, but kept the Trump investigation secret.

FBI Kind

This is the agency that some Republicans today claim leads a “liberal attack” on the conservative movement, and on Donald Trump.  With perhaps the exception of ICE and the Secret Service in the Department of Homeland Security, the FBI (in living color) has proven again and again that it stands not only for American values, but for American conservative values.  It really should be no surprise that the FBI knew a whole lot about the Black Lives Matter movement, but seemed to be completely clueless about the groups organizing for the January 6^th Insurrection.  The protestors on the Mall that day were the FBI’s “kind of people”.  At least they were, until they broke the law.

On Tuesday, January 3^rd 2023, Republicans by a slim five-vote margin will take control of the House of Representatives.  We can expect to soon hear a lot about Hunter Biden’s laptop and the “liberal rot” of the top of the FBI.  Many FBI agents will feel betrayed by the Republicans they undoubtedly supported.   But to Republicans in Congress that’s OK.  They need a scapegoat for the deep rot of the Trump Administration.  They found one:  The FBI (in living color).  Jim Jordan’s phone message may well now say:  “F#*K Wray, may I help you?”

New York Democrats

Congressman-Elect George Santos of New York has an “integrity” problem.  Don’t take my word for it.  Even “off the hook” former Democratic Congressman (and Presidential candidate) Tulsi Gabbard said it, in her Fox News interview of him.  Santos is a Republican, one elected in the surprising New York state results of 2022.  New York is a bastion of “Democratness”.  The struggles in the state legislature are usually between two different factions of Democrats, with the Republicans having little say.  The battles between Democrats Mayor DeBlasio and Governor Cuomo were legendary.

So it was a real shock that four normally Democratic Congressional seats went to Republicans, including one held by the Chairman of the Democratic Congressional Campaign Committee, Sean Patrick Maloney.  Santos flipped New York’s Third District on the North Shore of Long Island.  Understanding New York Democrats, it’s no surprise that the losers are blaming newly elected Governor Kathy Hochul for not campaigning hard enough in the area.

False Resume

Santos campaigned as an openly gay, former Wall Street investor, who would bring a “moderate” Republican stand to Washington.  His parents were from Brazil, and Santos himself graduated from Baruch University in New York, and worked for fabled investing firm Goldman-Sachs.  And, he was Jewish.

It now seems that none of those things are true.  He never worked on Wall Street, Goldman-Sachs doesn’t even have record of him.  He never graduated from Baruch University.  Now he claims his parents weren’t from Brazil.  And, he acknowledges that he was raised in the Catholic Church.

His latest line:  “I’m not Jewish, but I’m Jew—ish”.

“Ish-ness”

So I get that a little bit.  My father was a non-practicing Jew, my mother, estranged from the Roman Catholic Church,  turned to American Episcopal.  I was raised an Episcopalian, schooled in the traditional (near Catholic) mysteries of the “high church”.  At the holidays we celebrated Christmas and Easter, not Hanukah and Passover.  But there was always some interaction with the Jewish side of the family.  I learned to intone the Hebrew blessing of the wine and bread before Seder supper, just as I learned the Lord’s Prayer.

I guess you could say that while I was a Christian (now fallen), I was still connected to “ethnic Judaism”.  And in Cincinnati, a small town in many ways, I was connected to the “Jewish” part of the Democratic Party, because Dad’s distant cousin was one of the Party County Co-Chairman.  In one of my first “real” political jobs, as scheduler for a Catholic United States Congressman,  I was surprised to find I was considered one of the “Jews” in the office.  At the time, I didn’t “feel” Jewish, if anything I related more to the Congressman’s Irish connections.  

Throughout my career as a public school teacher and coach, I realized that many would automatically assume I was Jewish.  It was just the way it was, and though I never claimed to be Jewish, it was still in the background for people who really didn’t know me.  So, in a sense, I guess I was “Jew—ish” too.

Malpractice

But it’s hard to imagine you could lie about your work career, your education, your parents’ ethnicity, and your religion; and still get elected to Congress.  There is an old campaign axiom:  know your own candidate, and know your opponent.  It’s called opposition research.

In any campaign any professional campaign operative is going to check every claim by the opponent.  Not only do they examine the views and positions on issues, but, like any prospective employer, they CHECK REFERENCES and claims. If they fail to do that, they are committing campaign malpractice.  So why didn’t Democratic candidate Robert Zimmerman do his “due diligence”?  Why did it take the New York Times to expose Santos as a fraud, and only after the election results were already counted?

Cringe-worthy

Because, even in this era “beyond truth”, we still don’t expect people to out-right lie about the basic facts of their lives. We might take a couple of exaggerations, but not complete fabrications.  But if truth no longer matters, then why shouldn’t candidates just make-up whatever works. Santos wasn’t the only one.  Look at Herschel Walker, who assumed they’d never find the children he  denied even fathering. 

Tulsi Gabbard wasn’t the only former politician decrying Santos’ lack of integrity.  Former Congressman and convicted pervert Anthony Weiner also was shocked.  He interviewed Santos twice on radio (yep, Weiner’s got a radio show) and “exposed” some of the lies.  But Weiner really found that the “Jew—ish” comment was “cringe-worthy”.  

I guess he should know.

Quora

I belong to an online “discussion board” called Quora.  It’s a place where you can discuss any subject, from the Civil War to Track and Field training. Ask a question, and get a whole series of answers.  Some of the “answerers” are really experts in their field (and some are full-blown idiots).  If you’re “into” advanced aircraft, you might end up in a conversation with someone who flew the SR-71 Blackbird (my favorite). Or, if you’re looking for defenders of the Southern Cause in the Civil War you can find them. They are still here, declaiming the “War of Northern Aggression”, and defending Lee at Gettysburg- it was all Longstreet’s fault.

Of course, there is topic after topic about politics.   For my “progressive” friends, you can find companionship, or find that the QAnon crazies are still out there.  If you want to find “alternative” views to the US support of Ukraine, Quora has that too.  It’s an international board, and Russians make sure they get their point out.  If you believe them, the Ukrainians are at fault for their civilian power grid destroyed.  Oh, and yes Russia is “winning” the war.

Into the Fray

I actually answer some, usually sticking to educational questions about the structure of the American government.  The Electoral College, the Filibuster, and the Federal versus State balance are constant areas of inquiry.  Sometimes it’s clear that someone from outside the US is asking. And sometimes it’s clear that a US high school student is trying to find someone to do their homework.  I don’t usually chime in on the most political stuff (surprise), just because there are plenty of others waiting to swoop into all sides of that.

But I was reading a topic board called “No More Trump”.  It’s a “Trump bashing” group, but there’s always someone jumping into to defend the disgraced, twice impeached ex-President.  And it leads to a couple of questions.  How, after January 6^th, the Committee report, the various Court decisions, and the Mara Lago security violations; are articulate, clearly intelligent people still defending him?

Angle-Side-Side

I didn’t pay much attention in tenth grade Geometry class.  Our teacher, successful basketball coach Mr. Rex Parker, trudged through the understandably tough task of teaching fifteen and sixteen year old’s mathematical logic.  My mind held greater fascination to the fact he constantly licked his finger, ran it through the chalk tray at the bottom of the board, then licked the chalk dust off.  I guess he didn’t have acid-reflux, his entire digestive tract must be covered in white dust.   At least, that’s what I was thinking instead of learning theorems, postulates, and equations.

But I did manage to get one concept.  There are certain “givens” to solving a problem that take you to an answer.  For example, given a four sided object with equal sides, if two angles are ninety-degree, then all the angles are ninety-degree.  It’s a square. (here endeth my feeble attempt to teach geometry- hope I was right).  It’s the concept of what’s given that determines the answer.  

All of that, to get to this point – whatever you accept as a “given” will determine what shape you will see. There are incredibly intelligent, insightful people on “both sides” of the great American political crisis.  The difference isn’t necessarily their logical thought progression, it’s what they accept as the “givens” in their political thought.   For example, if you accept as given that the main sources of news are intentionally not telling the truth, and that “woke” Americans are intentionally denying the white-Anglo-Saxon-Christian foundation of  US government; then what conclusions do you reach – in a logical progression?

Givens

Since the media is completely useless, you will need to find “alternative” facts.  To do that, you will have to look at those online sources that have the “truth”, at least, the “truth” that matches your “givens”.  And once you are armed with those “truths”, you can logically move ahead to whatever conclusions make “sense”.  It’s no good arguing that those folks are unintelligent –  they are making a choice about their “givens” that wall off logical argument against their conclusions.

Because if you argue that “the news says”, well that’s a news that is “a priori” false.  And if you argue that the United States is, in some part, founded on the financial success of enslavement, the original sin of America, then you are “woke”; an “a priori” falsehood.  That’s the frustration in arguing about all of this.  America no longer has a single set of “givens”.  And even the most intelligent, even the geniuses (yep, I’m referring to Elon Musk) can make a decision to accept givens that set their logical conclusions on a whole different path.

Holiday Math

Sure, there’s something very “American” about thinking “outside the box”.  But what, just a few short years ago, was a holiday season where folks could exchange views on all sorts of subjects, now is a carefully choregraphed “discussion” of professional sports (GOALLLLLLLL!!!- wait, not soccer) and the accomplishments of tenth month old’s.  And, of course, what’s happening with the weather.  But, beware, talking about the blizzard and sub-zero windchills can easily slip into climate change, where the “givens” are wildly scattered.

How ‘bout them Bengals?  Leave the Browns out – might end up arguing about the sexual behavior responsibilities of the NFL and multi-million dollar quarterbacks. Want a political discussion?  Better find a corner to have a  “hushed conversation , after carefully “feeling out” the given “givens” of the participants.  America, even a Hannukah, Christmas and Kwanza America, can’t discuss anymore.  

We are divided by geometric rules of thought.

Trustworthy Scout

I turned eighteen September of 1974; a new college freshman at Denison University.  But I was politically “aware” long before my enrollment in the Political Science Department up “on the hill” in Granville.  I grew up in an aware household (maybe what we’d now call “woke”). In 1968 Dad ran a television station in Dayton, one sister was in college at Miami University, the other in high school in suburban Kettering.  And Mom was always politically involved. The Civil Rights movement was powerful in racially-divided Dayton, and the Vietnam War was close to home.  Both sisters had friends bound for the War, and both actively opposed US involvement.

I learned, and listened, and tried to understand how our government could be committing such a tragic mistake.  In 1968 I was an eleven year-old Boy Scout, with all of the patriotism Scouting imbued.  It took a while for me to make sense of how the Johnson administration, directly descended from John Kennedy, could be so wrong. One of my remaining heroes from Kennedy’s era was his brother, Bobby, the Senator from New York.  Bobby was against the Vietnam War (though late coming to the view).  He represented “transition” for me – the way I could oppose the Johnson War, and still be a “Trustworthy, Loyal” Scout.

Political Immersion

There are memories that are seared in your mind – car wrecks, natural disasters, major surgeries.  One memory of my eleventh year was waking up in my room to the radio alarm clock.  It clicked onto the 7:00 am news – Bobby Kennedy was shot. He was attacked in Los Angeles after his primary win cleared the way to the Democratic nomination.  I remember: lying in bed, my face in the pillow; another disaster after the death of Martin Luther King, another chink in the armor of America’s invulnerability, another hero lost.

The next few days were ceremonies, speeches and the long train procession.  In the end Johnson’s man earned the nomination, and lost the Presidency by a whisker in November.  I remember the announcement at Van Buren Junior High on Wednesday morning after the election, the raucous cheers throughout the school that Nixon was the next President of the United States.  I felt like one of the very few with my head down on my desk.  In Kettering, I was.

Over the next six years I became fascinated with politics.  I studied a lot, I worked on political campaigns, I was an “activist” within the system.  And the two years of the “Watergate Era” I was immersed in the hearings, and the Court proceedings, and the day-to-day lies.  Vietnam got all tangled with Nixon’s politics and his ruthless determination to keep the White House.   From Junior High in Kettering through High School in Wyoming near Cincinnati, I knew all about it.  I suffered through Nixon’s second victory, then demanded accountability for his breaking the law.

A few weeks before I left for Denison, Nixon resigned.  I won’t lie; I hoisted a glass of champagne, even as a seventeen year-old.  My friends joined me in celebration.

Pardon the “King”

Then, only a few weeks later, Nixon was pardoned for “any and all offenses committed” during his Presidency.  The newly ascended Gerald Ford proclaimed, “…Our long national nightmare is over”.  I was angry, storming at my 1962 black and white “portable” TV.  Justice denied.   But over the decades after, I “mellowed” in my view.  Maybe Ford was right, maybe the nation needed to move on from the Watergate debacle.  Maybe the vision of a former President of the United States at the defense table was more than Americans should bear.  

In 2001, the Kennedy Library Foundation, run by the family, gave Gerald Ford their “Profile in Courage” award.  They lauded Ford for his political courage. He pardoned Nixon, an action that might well have cost him reelection in 1976.  (The Award was also given to John L Lewis in the same year.) In 2001 that might have made sense.  But now, in 2022, it’s clear that precedent shouldn’t apply.

Roger Stone

It is no coincidence that Trump’s oldest political advisor is Roger Stone, just a young political operative when he got caught up in the Watergate prosecutions.  Stone believed that whatever Nixon did, it was OK.  The ends – keeping Nixon in office – were worth any means, illegal or not.  Or as Nixon himself said a few years after resigning office, “If the President does it, that means that it’s not illegal”.  Ford (unintentionally) allowed Stone, and others like him, to believe that Nixon leaving office was all “political”, with nothing to do with “right or wrong” or the sanctity of the law. 

And so they brought that attitude to Donald Trump, who already had no problem skirting the law.  It began as soon as Trump came down the golden escalator, and it continued throughout his Presidency.  It should be no surprise that a man with that view was impeached twice, and now faces at least four criminal investigations.

And it wasn’t just Trump and Stone.  It was Manafort, another Nixon acolyte, and Steve Bannon whose whole political raison d’etre is his ends justify any means.  And there was Seven Miller who brought his own natural hatred from his upbringing to the table, and all of the others drawn to the no-holds-barred Trump positions.  Their precedent – winners are never accountable.  And if the win is the Presidency, then the protection is forever – look at Nixon. 

Vulnerability

America made the mistake once.  We gave a former President invulnerability.  And the price we paid, that we are paying, is that forty-two years later an elected President had no reason to believe he could ever be held accountable.

Trump is a long national nightmare, much longer than the two short years of Watergate.  We are now starting the  seventh year as almost every newscast starts with “Trump”.  I would like nothing better than to be done with him.  But this is not the time to say, “There’s nothing to see here, move along, move along”.  We have suffered through the nightmare, now we must see to it that our future, the next election or the next generation, has to learn the same damn lesson again.

Donald Trump must be tried – for election fraud, for insurrection, for flaunting our national secrets.  The clear case must be laid before the jury and the American people; so that we all see what he did, and what was wrong.  Hopefully he will be found guilty to “seal the deal”; but either way, he needs to be “in the dock”.  Otherwise the lesson taught puts our Nation in mortal danger.  Our democracy is vulnerable. If there is no accountability then the Bannon’s and Stone’s of the world are right. They almost succeeded on January 6th. And the next time their operatives might end our Constitution.

Golden Door

There are thousands of migrants, from Cuba, Nicaragua, Venezuela, and other countries; waiting in Mexico directly outside the United States.  They are waiting to cross to make their claim for asylum.  They are not US citizens, but they do have “rights”. One of those rights, confirmed both in US law and international treaties, is to enter to claim asylum.  Whether US Immigration Courts accept those claims or not isn’t really the issue.  The issue is that they have the right to be:  “…(T)he homeless, tempest-tost to me.  I lift my lamp beside the golden door” (New Colossus).  They have the ”right” to enter the “golden door”.

Child Separation

President Trump’s administration allowed migrants to cross outside of the “legal” crossing points and then arrested them.  They implemented the infamous “child-separation” program. Children crossing with their parents were taken away, based on the “theory” that anyone crossing the border illegally was committing a crime and therefore “unfit” to keep their children.  Crossing the border is legally a misdemeanor offense, but it was treated like a “major” felony.

Kids were taken away, and parents imprisoned.  It took far too long, but public outrage at the child separation program became deafening. Trump was forced to end it.  As many as 2000 children were separated when the program was stopped.  Today, years later, 150 kids remain unable to reunite with their loved ones (The Hill).

After the child-separation program ended, the Trump Administration looked for a different way to keep migrants across the border.  They took on the Sisyphean task of sealing the border physically to force migrants to only come through legal entry points.  They built walls and fences.  But as the phrase goes, all it takes to get over a sixteen foot wall is a seventeen foot ladder.  And the migrants kept coming.

Title 42

But, since 2020 those migrants who wish to enter legally are blocked.  What would be a violation of law and treaty, is allowed under  “Title 42”.  That’s not an immigration law, or something new passed by Congress.  It’s a public health regulation, placed in effect during the pandemic.  It closed the borders to prevent the spread of Covid.  And while much of the United States, and particularly the anti-vaccine set, are far “over” Covid, many are still in favor of keeping the migrants out.  Even though “out” tens of thousands wait across a narrow band of normally fordable water called the Rio Grande River, which makes up much of the US Southern border. (Current Covid death rates in the US, remain at almost 400 per day).

And for those who crossed illegally, instead of being processed, they were simply put on buses and sent back across the border. Title 42 allows the suspension of their due process rights .

The Biden Administration isn’t totally blameless.  When Trump imposed “Title 42”, thousands of migrants were stacked up in the border cities across from the US.  And while they waited, many more thousands found their way to those same border towns.   The inevitable result is that the pressure on the border towns is enormous.  Conditions are deteriorating, violence and crime is increasing, and the US has done little to prepare for the “surge” guaranteed when normal border crossings resume.  The Administration did try to end Title 42 restrictions, but Republican Governors battled in the Courts to keep the rule in place.  Meanwhile the pressure on the border just grows greater.

What Do We Stand For?

The rule was supposed to be lifted yesterday, but Chief Justice John Roberts issued a stay keeping Title 42 rule in place.  On the South side of the border, migrants are growing increasingly restless, with rumors of the change in rules stirring everyone up.  Should the Supreme Court allow the President to end the health restrictions, no one knows how many thousands will surge through both legal and illegal entry points.  And while that surge is completely foreseeable, little has been done to prepare. The cork will be out of the bottle, and no way to clean up the mess.

Even today, migrants who do cross are sleeping on the streets of El Paso and other border towns, because there is nowhere for them to go.  Private agencies are completely full, and existing public facilities are packed as well.  Just now, FEMA and other Federal agencies are moving in to prepare for the onslaught. Better late than never, but late non-the-less.

And once they arrive, and housing is arranged to keep families together, there is still the question: we are a nation conceived in immigration, built by immigrants, and searching for an increase in the labor force. Will we allow the “homeless and tempest-tost” inside the Golden Door, or will we send them back to the teeming streets of Ciudad Juarez, Tijuana and Matamoros?

Will we simply “refill” the bottle?

Gut Decisions

“I know it when I see it”.  That quote is from Supreme Court Justice and former Cincinnati City Council member Potter Stewart. He was talking about pornography.  The Supreme Court itself ruled if individual films were pornographic, and therefore not an exercise of First Amendment free speech.  The Justices gathered once a month in the basement movie theatre of the Court Building, to watch films and make individual judgments.  It was also a popular day among the almost all male young staffers of the Court. 

Stewart was unable to reach a strict “definition” of pornography, but he could make a “gut decision” about it.  Ultimately, the Court got out of the “critic” business in 1973 with the Miller decision.  That established a three step process to determine if a film should be banned because it had “…no redeeming social value”.   That finally ended the monthly shows.

There is a technical definition of “Insurrection”, but like pornography, we know it when we see it.  We saw it on January 6^th, 2021, when the followers of Donald Trump attempted to seize the Capitol Building and change the outcome of the 2020 Presidential Election.  We saw it when the ex-President himself pressured state and local election officials to alter election results in his favor.  And we saw it in the elaborate scam of fake Electoral College votes.

Legal Insurrection

 “Insurrection” is now dramatically important in our law.  Not only is insurrection criminal, subject to long prison terms and fines, but it carries a ban on holding further office in the United States.  

“Insurrection” has already been bandied about.  In North Carolina, opponents of Congressman Madison Cawthorn brought a serious legal charge against his candidacy, based on his participation in Insurrection.  They not only cited the US Code (Federal Law), but also the Fourteenth Amendment of the Constitution, Section 3.  That states that anyone who first took an oath to support the Constitution, and then acted against it in insurrection, is banned from office.

The North Carolina Courts determined that while Cawthorn might have committed Insurrection in the “know it when I see it” sense, he never was convicted of it.  Cawthorn’s name was allowed on the ballot, but he failed to win the primary.  The same argument was made against Marjorie Taylor Green in Georgia, with the same legal outcome.  She won re-election and now stands as a powerful member of the Republican House of Representatives.

Charging the ex-President

The January 6^th Committee issued their final report yesterday.  They recommended that the Justice Department charge ex-President Donald Trump on (at least) four counts.  The Committee recommended charges:

•  obstruction of an official proceeding of the United States government,
•  conspiring to defraud the U.S., 
•  making false statements to the federal government, and 
•  inciting or engaging in an insurrection. (Forbes).

The “top charge” is Insurrection.  We knew it when we saw it.  And the January 6^th Committee has gone a long way to demonstrate that Trump committed the crime.  The Committee acted like a Congressional “grand jury”, examining the evidence and recommending charges.

Good Guys

But in one sense, Democrats (and the Republicans on the Committee) are hamstrung.  While Trump/Republicans could ignore subpoenas, violate norms, and skirt the laws; Democrats have placed themselves on the side of – wait for it – Law and Order.  By taking that side, they are constantly restrained by the fairness of the Law itself, that “awful” legal term, due process.  (We will see how Democrats continue to be the “good guys” of law and order when the Republican “revenge committees” start up in January.  Will Democrats ignore Jim Jordan’s subpoenas as Jim Jordan ignored theirs?)

Merrick Garland was appointed Attorney General to change the Department of Justice.   Trump used the Department as a political cudgel against his enemies.  Trump’s Attorney General Bill Barr misinterpreted the results of the Mueller investigation, and stood as a block to other inquiries into his Presidency.  President Biden specifically appointed Chief Appellate Judge Merrick Garland to the head the Department and make Justice as apolitical as possible.

Justice 

Garland is already investigating Trump.  There are two “known” Federal investigations; one directly involving January 6^th, and the other Trump’s removal of secured documents.  Justice has their own grand juries, looking at the same evidence that the January 6^th committee found or developed.  Those juries, Garland’s handpicked leader of the investigation Jack Smith, and Garland himself will determine what charges (if any) will be brought against Trump.  They will be sure to make due process, fairness, the highest priority.  That’s what “law and order” is supposed to be all about.

Many suggested that the January 6^th Committee was developed like a serial television show.  They created a series of presentations, each with compelling video evidence, and each ending with a “cliffhanger” for the next “show”.  Like any good, “Sorkin-like” series, the last show must have a satisfying end.  It couldn’t be just a re-hash of the series.  And so this Committee that acted as “America’s Grand Jury” offered its final bombshell.  They called for the trial of the ex-President of the United States on the highest charge possible.  If convicted, he would be banned from office for life.

Trump, like any American citizen, deserves due process.  But I hope that Merrick Garland realizes that the American people, who suffered the Insurrection and the threat to their Democracy, deserve the same.

Techie

Thanks, twice impeached, ex-President of the United States Donald Trump.  I’m kind of an old school guy.  I’ve done my best to try to keep up with the technological changes in our world.  I’m typing this essay on a two year-old MacBook Pro, and there’s an IPhone 13 sitting on the table beside me.  I’ve figured out how to “cut the cable” with my TV’s (though that isn’t saving the money it used to) and I can “stream”, “tweet” and “Facetime”.  And while I only text with one finger – I am desperately show – I still hold my own there too.

But one tech aspect I really never got was “NFT’s”.  In fact, for a long time I thought the letters “NFT” were some kind of new professional sports league – NFL, NBA, MLB and the rest.  And when some of the “younger” folks I know talked about investing in Bitcoin, it all seemed like some kind of scam, like buying “lakefront property in Florida” or the Brooklyn Bridge.

This only got reinforced with the arrest of Sam Bankman-Fried in the Bahamas last week.  He was the “golden boy” of crypto-currency (is that currency found in a pyramid along with the crypt of some Pharoah?), someone who looked like the guy who lived at the end of the hall in my college dorm: really smart, except for the drugs he was inhaling.  “SBF” (more initials) was a multi-billionaire genius; and a genius grifter.

Crypto

But, to be honest, I never really understood what all of this was about until Trump made it “stupid-simple” to understand. 

NFT – non-fungible transactions, sounds like something that went bad in the refrigerator.  But it’s not.  It investing your money, real money, cash kind of money, into something that doesn’t exist.  You trade your cash for “tokens”, which are really just data-points on some giant spreadsheet.  And just like the spreadsheets on this MacBook Pro, sometimes those data points get corrupted, or the formula becomes too complex, and they just “go away”.  And so does your money.

All of this just sounded like financial gobble-de-gook, until the twice-impeached ex-President jumped into the “NFT” game.  And that made it all clear to me.

For $99 you can buy a Trump “trading card”, just like the Pokémon cards the kid next store is so excited about.  And, like those Pokémon cards, the Trump trading card has a “value” all its own, not determined by the $99 you paid for it, but for what it can bring on the market.   And if no one wants Donald Trump as a cowboy, or race car driver, or astronaut; then you $99 investment is worth – nothing.  The “trading card” is a “crypto” currency, a hidden form of Trump produced “money”.  My wife Jenn has it right – it’s Monopoly money gone real, without having to buy the game.

Two Chickens 

In history class we talked a lot about the development of trade.  It all started with barter:  two chickens for a bushel of grain.  But those same two chickens could be used to pay for a day of labor, or a ride on a wagon to town.  The chickens had “real” value, they could lay eggs, or serve as tomorrow night’s dinner. 

But it was a pain to carry around a lot of chickens, so “symbolic” currency (fungible currency) was developed to make things easier.  Here’s a coin, made of some metal we find valuable.  This coin is worth two chickens at the chicken market.  So instead of hauling chickens around, we had bits of metal that represented the ability to purchase chickens, or the equivalent bushel of grain, day of labor, or ride to town.  And so money began.

But money had drawbacks too.  As it was easier to carry, but it was easier to lose, or steal.  And since money was symbolic, even as a valuable metal, it could gain or lose value.  What if the “two chicken” coin was all of a sudden only worth one chicken because of a chicken shortage?  So we developed other forms of currency, even more symbolic than the coins.  I have an “old school” book of checks in my desk drawer.  I can “create money” simply by writing a sum onto the check, and getting someone to accept my check for a more “fungible” form of currency.  And we have laws that punish us if we create money that we really don’t have.

Tokens

So Trump’s cards are like taking a check that doesn’t have a value written on it.  It might be a great investment, but it also might be a complete loss.  But one thing’s for sure:  Donald Trump got his $99 in real cash for a single card.  He got his “fungible” from these Non-Fungible Transactions.  And once he’s sold it, he is no longer responsible for its value, unlike my “bad” check.

There’s an ad on TV right now from the Liberty Mint.  You can buy a silver half-dollar, minted privately by Liberty, for $12.52.  It’s supposed to sound like a great deal – a “pure silver coin” for only $12.52 (supplies are limited).  But what are they really asking you to do?  They want you to pay $12.52 for a coin with the face value of – fifty cents.  Just like Trump cards, they want you to invest in something that is a “token” with limited face value.  Maybe someday it will be worth the $12.52 (or $99) you paid for it – or maybe not.  

But they got their fungible cash.  And now you own a Brooklyn Bridge.

Twitter

I was a latecomer to Twitter.  While I created a Twitter “handle” nine years ago (in fact, two; @martydahlman and @demintrumpworld) I really didn’t “participate” in Twitter.  I posted essays to @martydahlman, and I occasionally cruised through an evening’s newsfeed.  It was only in the last couple of years that I started seriously looking through my Twitter feed, especially since the January 6^th Insurrection.  

So I didn’t pay a lot of attention when Elon Musk, the Tesla owning, space exploring, richest man in the world, took over.  I heard all of the “bad news”; that Musk would wreck Twitter.  But up until yesterday, it didn’t really change what I saw.  But now one of the authors on my Twitter feed, Aaron Ruper, is banned.  After all of this time, Musk finally impacted me.

I’m a little sad.  I feel like I missed the heyday of Twitter,  and came in at the end when things are getting bitter.  And I don’t know what to do – open a “Mastodon” account, or go to “Post.News”; or what.  Twitter was addicting.  You could watch the experts on TV, folks like Neil Katyal, former acting Solicitor General of the United States, or Laurence Tribe, Harvard Law Professor.  And then you could get what they really thought on Twitter, the story behind the more formal MSNBC or CNN presentation.  You got the “inside scoop” – and now it looks like that’s gone.

Left and Right United

I’ve heard a lot of whining about Twitter, first from the right and now from the left.  One of the most annoying “whines” is that somehow Twitter did, or is, or would, violate users First Amendment rights.  It’s annoying because it’s wrong.  Twitter can do anything, muzzle members, suspend accounts, or allow some folks to say a thing and others not.  But none of that has a damn thing to do with the First Amendment to the Constitution of the United States.

“AHHHH – but what about Freedom of Speech!!  That’s guaranteed to every American, in the Constitution, in the First Amendment.  You can’t take that away!!”

Here’s what the First Amendment actually says:

“Congress shall make no law…abridging the freedom of speech, or of the press” – First Amendment to the US Constitution.

It states that Congress, and by extension, the government of the United States, cannot make a law taking away the ability to freely express your views, in speech or in the press.  And that “extension” is further stretched to include state and local governments by the 14^th Amendment, through the due process and equal protection clause.

So if the US, or Ohio, or Pataskala (my little town’s) government wrote a law that tried to prevent me from expressing my opinion here in “Our America”, that would violate the First Amendment.   If the local police came and told me that “Biden for President” signs (or those damn F**k Biden flags down the street) aren’t allowed here in Pataskala, that would be a violation too.  

Online Main Street

But Twitter is not the government, and Elon Musk, as rich as he is, isn’t either.  Twitter is a private company, a social media platform provided as a money-making “service” that we can choose to use or not.  And if we don’t like the rules – then we should take our “business” somewhere else.  Because Twitter (and Facebook, Instagram, Mastodon, and even Truth Social) are just stores on an online Main Street.  We can go in, we can buy their product, or we can walk on by.  The laws that apply to the government, don’t necessarily apply to them.

What about Tik-Tok?  Just yesterday a bill was introduced in the US Congress to actually ban the Tik-Tok app in the United States.  Isn’t that violating Tik-Tok’s First Amendment rights?  The short answer is yes – but.  Yes, if Tik-Tok is a private company then it has First Amendment freedom of speech rights.  The Supreme Court ruled those were protected in Citizen’s United, the case about corporations giving campaign donations to politicians.  

Take His Ball

But if Tik-Tok is really just an exciting lure, a “stalking horse” to gather information for the Chinese government, it raises a whole different issue.  Other governments aren’t guaranteed First Amendment rights.  So if Tik Tok is just an extension of Chinese Intelligence, it can be banned, much to the dismay of every social media user under twenty-five.  

I don’t like the way Elon Musk is running Twitter.  And I’m not so sure that I like the way Zuckerberg runs Facebook.  I may have to go onto virtual Main Street and find other platforms to use.  Then I can say whatever I want about those two billionaires.  But if I say it on their platforms, say it on the Twitter that Musk paid $40 billion for; why should I be surprised that he takes “his ball” and goes home?  

He paid for it. Twitter’s his, not mine.  

Horseshoes

Democrats may be pleased with the election results of 2022, but there is one incontrovertible failure.  The Dems failed to maintain a majority in the House.  They lost by a little, instead of the expected a lot, but they still lost.  What’s the old line:  “Almost only matter in horseshoes and hand grenades.”  Elections are neither horseshoes nor hand grenades,  and Republicans gained nine seats for a 222 total.  Democrats lost those nine seats, and have 213 seats.  It takes 218 to have a majority, so, by five seats, it’s a Republican House.

What does that mean?  The majority gets to “organize” the House.  Not only do they have a majority of the “whole” House, but they give themselves a majority on every Committee of the House as well.  In every decision making position, Republicans are appointed.  They control all of the Chairmanships, and determine almost all of the legislation that gets a vote of the entire chamber.  It’s not just that Democrats can’t win a straight Party vote; they can’t even get their legislation to the “floor” to be debated and lose.  

The majority Party controls the “calendar”, legislation that comes from Committees, and what gets to the whole body.  And all of that “control” is controlled by the leader of the majority Party, the Speaker of the House.  

Kevin’s Dream

For the past decade, Republican Kevin McCarthy dreamed of being Speaker.  He was so close back in 2014, when Ohioan John Boehner was driven from the gavel by the right-wing Freedom Caucus.  Boehner was unable to juggle the far-right with the more moderate right Republican members, and left to smoke his cigarettes, drink his wine, and become a spokesperson for legal marijuana.  

And with Boehner leaving, McCarthy thought his time had come.  Sure there was a more moderate Congressman from Wisconsin, Paul Ryan, former Vice Presidential candidate in 2012.  But McCarthy had more “friends” on the right.  He was closer to the Freedom Caucus members than Ryan, and hoped to parlay that into his “dream” job.

But then he opened his mouth, and the  truth poured out.  McCarthy publicly explained that the reason for the multiple committees and $7 million investigation of Benghazi was to discredit Hillary Clinton.  And he said it on Fox, on the Sean Hannity show, to the American people.

What you’re going to see is a conservative speaker, that takes a conservative Congress, that puts a strategy to fight and win. And let me give you one example. Everybody thought Hillary Clinton was unbeatable, right?

But we put together a Benghazi special committee. A select committee. What are her numbers today? Her numbers are dropping. Why? Because she’s untrustable. But no one would have known that any of that had happened had we not fought to make that happen.

With that, his shot at the Speakership was over.  He withdrew his candidacy, and Paul Ryan became Speaker until 2018, when Democrats won back the majority.

Less Than 1%

McCarthy then became the Republican Minority Leader, the “Speaker in Waiting” for four years.  And now, with his narrow majority, he is not “…going to throw away his shot”.  But he does have a significant problem.

Republicans won the majority by winning very narrow victories in New York State.  For example, Sean Patrick Maloney, the Democratic Congressman and head of the Congressional Campaign Committee, lost the 17^thDistrict by less than 1% of the total vote.  And there were three other marginal Districts that Democrats lost by 1% or less.  These are not “Freedom Caucus”, right-wing Districts, these are moderate Districts where independent voters determine the outcome.

So McCarthy ought to look at those results, and try to bring his Republican membership towards moderation to maintain the majority for more than just one two-year term.  But he cannot.

Deal with MTG

McCarthy made his deal with the far-right of the Freedom Caucus Republicans, the members of Congress who have made their mark as “crazies”.  McCarthy only needs 112 votes in the Republican caucus to be nominated for Speaker, but he can only lose five Republican votes when his nomination is voted on by the entire House.  Any five Republicans can refuse McCarthy and drop his vote total below 218. And then he’s stuck.

So he’s cut a deal with Marjory Taylor Green, the crazy woman from Georgia, to support him on the right. The deal includes empowering Green with a Committee Chairmanship, and refusing to allow Democrats Eric Swalwell and Adam Schiff to serve on the House Intelligence Committee.  McCarthy figures it this way:  deal with the right, and the right-moderate wing of the Republicans will have nowhere else to go.

But he is vulnerable, not just for the upcoming votes for Speaker, but every day he serves in the job.  Any five Republicans can decide it’s time for him to go, and he’ll be faced with the same choice John Boehner confronted.  He can be Speaker, but he won’t be able to govern.  Boehner cried, walked away, and joined the “dope” coalition.  

McCarthy may want to do the same. 

What’s Left

Abraham Lincoln was a “life-long” member of the Whig Political Party.  In 1848, he campaigned for his party’s Presidential candidate, General Zachary Taylor.  The Democrat running against Taylor was General Lewis Cass, and Lincoln derided his candidacy.

“A fellow once advertised that he had made a discovery by which he could make a new man out of an old one, and have enough of the stuff left to make a little yellow dog. Just such a discovery has Gen. Jackson’s popularity been to you [Democrats]. You not only twice made President of him out of it, but you have had enough of the stuff left to make Presidents of several comparatively small men since; and it is your chief reliance now to make still another.”

This may not have been the first time Democrats were derided as “yellow dogs”, but it certainly wasn’t the last.  The phrase came to mean anyone who voted a straight Democratic ticket, regardless of who was running for office.  They became known as “Yellow Dog Democrats”.  They’d choose a Yellow Dog rather than voting for a Republican.

The Whig Party broke apart in 1854 over slavery.  Many of the Northern Whigs joined the new anti-slavery party, the Republican Party, including Lincoln.

Georgia’s Choice

Raphael Warnock won re-election to the US Senate in the Georgia runoff last week.  What looked like a “squeaker” all evening turned out to be a relatively comfortable win, as Warnock defeated his Republican opponent Herschel Walker by almost 100,000 votes, a bit more than Warnock’s margin over Kelly Loefler in 2020.  After four state-wide campaigns in two years and almost $400 million, Senator Warnock will finally get to serve a full six-year term.

Warnock is the pastor of the famous Ebenezer Baptist Church in Atlanta.  As a Senator, he proved instrumental in passing several pieces of legislation, and was surprisingly bi-partisan.  As he tells it, he’s the 18^th most bipartisan out of the one hundred Senators.  

His Republican opponent Herschel Walker was a tremendous athlete.  His exploits on the football field in the early 1980’s for the University of Georgia are legendary.  Walker then went onto a professional career, playing first in the USFL, then in the NFL for over a decade.  After he retired from football, he took on mixed martial arts, and even earned a place on the US Olympic Bob-Sled team in the 1992.

Walker was an outstanding athlete, but a questionable candidate.  He’d left Georgia decades ago to live in Texas, and only returned thirteen months before this election . Walker also has a history of mental illness and domestic violence.  When the campaign first began, his staff did an “opposition research” of their own candidate.  In a week, it was over five hundred pages long.  They were NOT allowed to talk to Walker’s former girlfriends.   It turned out that he had several illegitimate children, some he acknowledged, and some were “discovered” during the course of the campaign.

And Walker had a difficult time articulating his views about the issues of the day.  It made it easy for Democrats to ridicule him in ads on television and social media.

Party over Candidate

But the Georgia election was more about who supported which political party, rather than the individual candidates.  The nation agreed:  more money was spent in Georgia in the past two years than by any nationwide Presidential campaign up through 2012.  There were not enough “Yellow Dog” Republicans to pull Walker over the top, even in a state where the Republican Governor won by almost 200,000 votes.  Walker was that bad of a candidate – which raises the question:  what were the over 1.7 million voters (out of 3.8 million) thinking when they marked “Walker” for their Senator?

Ohio is much the same way.  In the 2022 election, the Democrat Tim Ryan was the “model” candidate in the nation.  The Republican candidate, JD Vance was nowhere near as “bad” Walker, but was noted as one of the laziest Republican candidates in the country.  Yet Vance still won, by over 150,000 votes (out of almost 4 million).  The “quality” of the candidate didn’t matter here in Ohio, Republicans voted for their “Yellow Dog”.

Ohio’s Failing

What’s the difference between Georgia and Ohio?  Certainly a lazy Vance was better than Walker talking about werewolves and vampires.  But there is a more important consideration.  The Democrats of Georgia, led by Stacy Abrams, have a voter turnout that is second to none.  The Democratic Party of Georgia still can’t break the Republican grip on state offices, but they are closing the gap, in spite of the Republican legislature’s attempts to suppress Democratic voters.  (Need proof of that – the Republicans tried to stop Saturday voting on the weekend after Thanksgiving, citing a Georgia law that bans voting the day after a holiday.  The holiday wasn’t Thursday’s Thanksgiving. It was Friday’s Robert E. Lee’s birthday). 

Here in Ohio, the Democratic Party is, “…(O)ut-gunned, out-manned, out-numbered and out-planned,” (thanks “Hamilton”, I saw the Cleveland production last week – still awesome!!!). We are lacking infrastructure, financing, and most important, candidates.  Tim Ryan was great, and Sherrod Brown is the exception that proves the point.  But in general, we haven’t run a serious ticket for statewide office in a decade  (A well-funded Nan Whaley might have made a difference). 

Where is our Ohio’s “Stacy Abrams”?  Who will lead the Democrats, almost two million of us, out of the wilderness of gerrymandered impotence?   Ohio Dems will all vote for a Yellow Dog over a Republican, but we’ve got to get beyond the kennel to win.  

A Trade

It was like a scene from the Cold War.  A business jet from the US pulled onto one side of the tarmac.  A similar jet from Russia landed and pulled up several yards away.  The doors open, at the same time, and two huddled groups emerge from the planes and approach each other.  One person from each group steps to the other, and the groups head back to their planes.  The US and Russia exchanged prisoners on the runway in Abu Dhabi.

Thursday the United States of America freed a Russian arms dealer, Viktor Bout.  He is a friend of Russian leader Vladimir Putin, and was serving his eleventh year of a twenty-five year prison sentence at the US Federal prison in Marion, Illinois.  He was traded for Brittney Griner, the Women’s National Basketball Association superstar, born in Texas and two-time American Olympic Gold Medalist.  Griner was arrested in Moscow Airport last February, accused of bringing in marijuana oil vape cartridges, legal in the US but not in Russia.

Griner was sentenced to nine years in a Russian Penal Colony, and was just beginning to serve her sentence.  

Celebrate

It’s a moment of some celebration.  An American, unjustly held and dramatically over sentenced, is out of a Russian Penal Colony and back safely in Texas.  It’s also a moment of concern.  “The Merchant of Death”, Viktor Bout, is free to resume his life of arms sales to the highest bidder, even to both sides of the same conflict, to gain more profit.

And Paul Whelan, an American (and British, Irish and Canadian – he has passports for all four countries),  a former US Marine and businessman, is still in Russian prison; four years into a fifteen year sentence for espionage.   The American negotiators hoped that they could create an “equivalence” between Bout and Whelan, a “my Bishop for your Bishop” kind of trade, then add Griner in.  But the Russians regarded Whelan is far more than the equivalence of Bout.  So Griner was the best the US team could do.

There are a few things to point out about all of this.  

The Dance

First, it takes two to tango.  The US might think their deal for Griner and Whalen was great, but unless the Russian’s had the will to get Bout back, they were just dancing by themselves.  Regardless of Bout’s “Merchant of Death” label and his close ties to Vladimir Putin; he obviously wasn’t of great enough value to spring for the “two for one” deal.  The Russians went to a great deal of trouble to charge Whelan with espionage, of being a spy.  They want a spy back for him.

According to sources, the United States doesn’t have a Russian spy to trade.  There are Americans who spied for Russia in the US, but they aren’t likely trade fodder.  There is someone the Russians want:  Vadim Krasikov, a Colonel in Russian Intelligence convicted of murder in Germany.  But the US doesn’t have him:  the Germans do, and aren’t interested in trading for him for an American.

Reaction

So the deal was Griner for Bout, a superstar basketball player who may have had vape cartridges (or may have been set up), for a heinous arms dealer responsible for many deaths.  The American right-wing was brutal in their criticism.  The deal, they said, showed Biden’s weakness; willing to trade away a bishop to get what they consider a pawn.  Brittany Griner is gay, a Black woman, who kneeled during the National Anthem in protest of the murder of George Floyd at  WNBA games. So she made an easy target for the right-wing media.

The Biden administration was deeply sympathetic to the Whalen family’s disappointment, and vowed to continue to work to find a way to bring him home.  But Secretary of State Antony Blinken also made it clear: there was never a deal that would include Whalen, even in a one for one for Bout.  Whalen was never “on the table”.  

It takes two to tango.  And the Russians aren’t dancing for Whalen.

First Year

I didn’t get far in law school.  After three years of teaching at Watkins Memorial High School, I returned to my “life plan” and entered the University of Cincinnati.  But as the first semester of law school ended, I made a life-changing discovery.   I really wanted to teach and coach.  That was a “calling” that I didn’t anticipate when I made my life plan back in my freshman year at Denison University. 

 But there I was, watching a high school cross country team training in Burnet Woods right by campus. I lost my entire train of thought about contract law.  So when a job offer from my old Principal Pete Nix came right in the middle of final exams, I said yes.  I finished the semester, and prepared to embark on thirty-three more years in public education.  Other than disappointing my father and Judge Art Spiegel, I have no regrets.

I did learn a lot in that semester at UC.  One thing was that a lot of my law school classmates judged a person on their apparel.  I was going to law school by day, and running a Cincinnati City Council campaign by night.  As the campaign manager, I was often in a suit and tie.  I saw no reason, after studying from four in the morning, to go to a class of over two hundred dressed up. So I spent a lot of my day in old Watkins Track sweats. 

Note Cards 

In my law school days there was something called  “the dreaded note cards”.  The professor had a stack of note cards with our names on it.  If your name came up, you were on the spot for interrogation. It wasn’t just for one question. You might spend  the entire hour on your feet, as the professor tested your knowledge about the case, the precedents, and the dreaded “what ifs”.  You never knew when your card would come up. But once you were “up”, you could relax a little. Unless the professor dropped the stack; then there was instant panic in the class.  

So it was in contract class in mid-October.  I’d been out late at a campaign rally, and up at four am with the books scattered across my apartment. But I was ready.  My classmates looked at the “dude in sweats”, and expected a sub-par performance.  But when the professor intoned “Mr. Dahlman, what’s your take on Fiege v Beam,” I stood up prepared for my turn in the barrel.  I handled the case, the precedents, and a full twenty minutes of “what ifs”.  And I taught the class a lesson about judging from appearances.

The law is based on precedent, and the operative word in law school is “what if”.  What if we change this fact in a case – does that change the outcome?  What case in the past would apply to this set of facts?  Is there one set of facts that would change the entire outcome and legal precedent?

Cause of Action

Monday, the United States Supreme Court heard a Colorado case, 303 Creative v Elenis.  

303 Creative is a web design company run by Lorie Smith.  Colorado has a state law that requires businesses to not discriminate based on race, religion, or gender status.  Ms. Smith wanted to post a message on her web site, saying that she will not design wedding webpages for same sex couples. She believes marriage is only between a man and a woman.

Before we go forward, there is a huge break in precedent already.  The Supreme Court almost never takes a case without a “cause of action”.  That is, there has to be a real case, with real clients and real damages, to get in front of the Supreme Court, at least, that’s the precedent.  In fact, many cases fail to get to the Supreme Court, because the plaintiff cannot show damages.  A precedent:  in 2020, Texas sued Georgia, Arizona, and Pennsylvania saying that those states didn’t follow their own election laws. The Court denied Texas’s claim because they couldn’t show how the other states actions damaged Texas.  The Lone Star State didn’t have a cause of action to bring suit.

No Message, No Case

Lorie Smith was never asked to build a website for a gay couple.  Her whole case was based on the fact that when she asked the state of Colorado whether she could put the message on her website the state said no, that would be against the law.  She never put the message up.  Colorado never launched a legal proceeding against her.  She sued based on the fact that she could be taken to Court by Colorado, not that she actually was.

So precedent would have the Court deny a hearing (deny certiorari) based on standing.  Nothing actually happened, and no one was damaged.  But the Court did not. They took the case.

Lorie Smith could have made a First Amendment case based on “religion”, saying that to require her to make a gay couple website would violate her religious beliefs.  That would match the precedent established in the Masterpiece Cakeshop case in 2018. In that case, the Court ruled that a baker could not be required to make a wedding cake for a gay marriage if it violated his own religious beliefs.  That ruling was narrowed to ONLY apply to that baker, not other bakers or wedding photographers or planners, or caterers or even website builders.  But the precedent could be expanded by future rulings. 

Free Speech

But Lorie Smith’s attorneys did not make religious arguments.  Instead, they based their case on the “Free Speech” clause of the First Amendment,. The claimed that Ms. Smith has the “free speech” right to post her message for gay couples.  

No one doubts the right of someone to be against gay marriages.  The question is can someone engaged in public commerce deny their business to folks that they are against.  

There is a logic in Smith’s argument.  It’s her “art”, her effort that creates the website, just like it was the baker’s “art” that created the cake.  It’s not like she’s renting them tables, or providing the deviled eggs.  If she is forced to take on a gay couple’s website, then she is required to use her creative talents to make  them “look good”, something that she doesn’t believe.  

And let’s get past the fact that she was never asked, and in fact, there is no damage done in this case.  The Supreme Court has accepted a “hypothetical” case.  But it also opened the door to a whole series of other hypotheticals, of “what ifs”.

What if she didn’t agree with biracial couples or Jewish couples, or Roman Catholic couples.  Should she have the “right” to not serve them?  What if, as came up in the Court, she was a photographer at the Mall, taking pictures of kids talking to Santa Claus.  What if she didn’t think black children should speak to a white Santa Claus, or vice versa.  Should she have the right to deny them?  And what if she opened a restaurant, and her “art” was the food.  Does she have the right to refuse service to gays, or to Jews, or to Blacks?

Jim Crow Redux

Listening to the Justices question the opposing counsel, much like the “notecard” professor back in Law School, it was clear that the conservative justices are very willing to rule in Smith’s favor, expanding the right to “not serve” based on “free speech” as well as “religious freedom”.  And what door does that open?

In 1896 the Supreme Court ruled for Jim Crow Laws that allowed separation based on race.  The legal “dictum” of that case was as long as the services offered were “equal”, they could be “separated” by race.  The Plessy v Ferguson ruling stood until 1954, when Brown v Board of Education finally overruled it, beginning the end of the Jim Crow era.

But Jim Crow was based on the assertion by bus companies, restaurants, hotels, stores and other public enterprises that they had “the free speech right” to choose which race they wanted to serve.  It doesn’t take a lot of “what ifs” to go from Lorie Smith’s website, to the local restaurant, to the Holiday Hotel down the street – or from gay couples to racial segregation.

This original essay was originally published in July. The US Supreme Court will hear the case on Wednesday, December 7th, and it’s worth looking at again. IF the Supreme Court agrees with this radical theory, it could change the outcome of elections for years to come.

Back to Class

There is a bomb set to blow up the entire election of 2024. It could make the Presidential votes of the citizens of the United States unimportant. The gerrymandered state legislatures could decide the election, without referring to the popular vote count. And it would all be “legal”. The fuse is already lit.

To understand that panicked warning, there’s a lot of explaining to do. So I need to take you back to class, to that early morning American Government (or POD) class, coffee cup in hand, with a chalk board and books instead of Smart Boards and computers.

The “School House Rock” version of our government is pretty simple.  There are three branches: the legislative, the executive, and the judicial.  The legislative writes the laws and the executive takes those laws and enforces them.  The Judiciary makes sure that those laws “fit” with other laws and the US Constitution, in a process called judicial review.  

If I was your teacher, you might remember a candle in a dark classroom, as President John Adams signed the documents creating the “midnight judges”.  That action started the sequence of events ending in the Supreme Court case Marbury v Madison. In that decision, the Supreme Court took the ability to determine whether Congressional actions are Constitutional, judicial review.

But it doesn’t “have” to be that way.

Gerrymandering on Steroids

The process of drawing legislative districts so that one party is specifically advantaged is “Gerrymandering”.  It was named after Elbridge Gerry, the Governor of Massachusetts in 1812. He signed a bill creating a district that looked like a salamander to guarantee a Democratic/Republican victory (that’s the Party that evolved into today’s Democrats).  The newspapers called it “Gerrymandering”, and it has been an American political tradition ever since.

Gerrymandering went on steroids with the development of advanced computing. It’s no longer a matter of this section trends to one party or the other. Computer modeling creates absolutely specific maps to maximize advantage, down to the street level or even specific addresses. Want to dilute the other party’s power? Make sure that their supporters are divided into multiple districts. Want to strengthen your own power? Draw districts to guarantee your base is “in charge”. Need to see an example – check out the map of Ohio’s Fourth Congressional District in 2020, represented by Jim Jordan.

After the 1965 Voting Rights Act was passed by Congress, the US Supreme Court ruled that while districts could be Gerrymandered for political gain, they couldn’t be drawn to prevent racial minority candidates from winning elections. That was 1995 in Miller v Johnson. So the rule was pretty simple: when Ohio Republicans drew the Fourth District, it held up to Court scrutiny because it wasn’t “racially” based. But when it was demonstrated that North Carolina specifically divided black communities to weaken their voting power, it was unconstitutional, at least until 2019.

Saved in Court

In that year the Supreme Court majority, led by Chief Justice Roberts, stated that Federal Courts would no longer rule about Gerrymandering. He “kicked that” to State Court jurisdiction for judicial review. They would have final say over the actions of the state legislatures in drawing maps, and in making other election decisions.

After the 2020 election, both the state and federal courts confirmed the popular vote. The desperate Trump campaign went to them first. In more than sixty cases, “Stop the Steal” was debunked and dismissed. Even judges appointed by President Trump, including on the US Supreme Court, dismissed Trump’s claims against the valid election results. After Trump lost there, he went to the other tactics we heard about in the January 6th Committee hearings. One was to place extreme pressure on election officials to change results. Another was to convince state legislatures to ignore the popular vote and replace Biden electors with Trump’s. That all lead to the Insurrection of January 6^th.

The Eastman Plan

In that final push to overturn the election, lawyer John Eastman (of the “Green Bay Sweep” fame) put forward a radical theory of the American Constitution, called the “Independent State Legislature” (ISL).  It stated that the US Constitution gave state legislatures the exclusive power to determine how federal elections are conducted.  He based this concept on Article I, Section 4:

The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators.

Eastman theorized that the language was specific, and that the state courts or constitutions had no place in ruling on how the legislatures exercised that power. The argument is simple: if a state legislature, say Georgia, said that Donald Trump won, regardless of what the popular vote in the state was, then neither the Georgia state courts nor the Georgia state constitution could be used to overturn that decision.

(If you think a state legislature can’t ignore the state Supreme Court or the state Constitution – remember the DeRolph school funding decision in Ohio? The Court ruled the funding process unconstitutional- but the legislature refused to change it. That was twenty-five years ago, and the process still hasn’t changed).

School House Rock

Back to “School House Rock” for just a second. Eastman states that the Courts have no power of judicial review over elections, because the US Constitution doesn’t give them the specific power in Article I, Section 4 to review federal election decisions. So the three co-equal branches, aren’t; and the legislature is unchecked when it comes to those decisions.

The “ISL” theory flies in the face of traditional American government, and the precedent established by Marbury v Madison at the very beginnings of our Federal system.  It requires a restricted view of the US Constitution, only viewing the actual text in that specific section without looking at the rest of the document, or the history that followed it.  In any other time in our history, going all the way back to the Marshall Supreme Court in 1801, it would have been laughed out of the courtroom.

The Bomb

But we aren’t in any other time.  Today’s US Supreme Court is in the hands of “textualists” who are sympathetic to the “black and white” arguments that lawyers better than Eastman are making.  On Wednesday they will hear Moore v Harper, arguing that the North Carolina Courts have no place in deciding the legality of Gerrymandered districts in North Carolina.  They have no place, because, according to ISL, the legislature has the exclusive power to determine election decisions.

The decision will be published sometime in 2023.  It’s about Gerrymandering, but the ramifications would apply to election laws in every state.  And, as we now know, the current Supreme Court majority isn’t afraid of overturning precedent, or taking radical historic stands.  

What if those sixty courts didn’t have a chance to rule on “Stop the Steal”?  What if those few election officials who stood up against changing the results, didn’t have court backing?  The Trump/Republican Party tried to pack state legislatures and election offices with “Stop the Steal” believers in the 2022 elections.  Some of them will be the legislators “in charge” in 2024.  They will decide if the election results are “wrong”, and send their own slate of electors for President, this time with legislative approval, to be counted in the House of Representatives.

Moore v Harper is the fuse.  If the Court rules for ISL, the bomb will go off in 2024.  By then, it will be far too late to avoid the blast.

“If this be treason, make the most of it!” – Patrick Henry

Treason

Treason is a simple concept that most Americans understand.  It’s “to go against your country”.  That sounds simple enough.  We think of Americans who took the enemy’s side in war from Benedict Arnold to Tokyo Rose.  Some might even think of the Ethel and Julius Rosenberg, who helped give the plans for an atomic bomb to the Soviet Union at the end of World War II.

And we all know the maximum penalty for treason, death.  It’s been that way literally from the beginning of written history, though for centuries there were even greater penalties.  “Corruption of Blood” is when a traitor’s family is held responsible for the treason. That is specifically banned in the US Constitution.  And, of course, for those who remember the end of the movie Braveheart, the English had an exquisite way of exacting the death penalty – drawing and quartering.  Without ruining anyone’s breakfast, it wasn’t pretty.  The US Constitution banned that as well, in the Eighth Amendment.

Treason is closely defined in the Constitution, Article III, §3, Clause 1:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The Courts have defined that a treasonous person must “adhere” to “enemies” and give them aid and comfort.  So someone who is simply against the government of the United States, an anarchist for example, isn’t a traitor.  And neither is an insurrectionist.

Insurrection

So when we look at the events of January 6^th, 2021, we can’t look at them through the lens of treason.  Yes, there clearly were overt acts, and the entire world bore witness as they attacked the Capitol.  But while we might considering them as “levying war”; it’s difficult to define what they did as “war”. 

In the US Civil War, the leaders of the South were levying war, raising armies against the government, and even negotiating for foreign aid.  In fact, Jefferson Davis, the President of the Confederacy, was charged with treason.  That was never prosecuted:  while US President Andrew Johnson wasn’t a Confederate, he did want the country to “get back to normal” and end Reconstruction as quickly as possible.  A Davis treason trial would prolong the Reconstruction, and reopen the wounds of war.  No one has been tried for treason in the United States since 1952, when an American citizen was convicted of aiding the Japanese in World War II. 

Sedition

The “Oath Keepers” did not commit treason in the Insurrection.  They did organize to attack the US Capitol, and they were prepared to wage an armed conflict (the weapons were “stashed” in hotels in Virginia).  And, they did launch military-style operations to find Vice President Pence and Speaker Pelosi.  That failed.  They were “insurrectionists”, but not traitors.  They committed a different crime under US law, a more complicated concept in law.  So they were seditionists.  

Sedition might be considering “treason-lite”.  It is not defined in the Constitution, but is simply part of the US Code of laws.  18 U.S. Code § 2384 states:

If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both.

Oath Keepers

The charge of sedition has not been used lightly by the Department of Justice.  Prior to the Insurrection, the last sedition trial was 2012 in Michigan (for MSNBC fans, the US Attorney who tried the case was analyst Barbara McQuade).  The judge threw the case out in mid-trial.  The problem was:  there is a thin line between a failed conspiracy the meets the definition of sedition, and “free speech” under the First Amendment.  The Judge ruled that the “evidence” the Government brought to show conspiracy was actually expression of “free speech”. 

So sedition, while easier to convict than treason, is still a very difficult charge to prosecute.  That makes the Oath Keepers trial result this week even more significant.  Five members of the so-called militia were tried for various crimes, all including seditious conspiracy.  Two leaders of the group, Stewart Rhodes and Kelly Meggs, were found guilty of sedition.  The other three were convicted of lesser charges.

Dealing Up

The prosecutors proved to the jury that there was a conspiracy among two or more people to; “…prevent, hinder or delay the execution” of Congressional certification of the Presidential election of 2020.  Rhodes and Meggs are going to Federal prison for years.  Out of the almost one thousand charged for the Insurrection, less than ten are held for sedition or conspiracy (Insider).  More significantly, all of those charged so far were outside of “Trump World”.  None of the financiers of the demonstrations on the Mall, or with direct connection to the Trump campaign, has been charged.

And it’s that “next step” that we await.  We know that Stewart Rhodes was in communication with Roger Stone.  Roger Stone was in the Willard Hotel “war room” with Steve Bannon, and  Bannon was in direct communication with White House Chief of Staff Mark Meadows.  And, of course, the Chief of Staff communicated with his boss, the President of the United States.  

Rhodes and Meggs face long prison terms. The others charged now feel the same pressure before trial.  Will one or more of them “cut a deal” with Justice, and bring Stone, Bannon and Meadows directly in line for charges?  And who, then, comes next?