Cheating on the Test

When There’s a Will

I am an old high school teacher, so I have had the opportunity to study many, many kinds of cheaters.  In the old days we had the basic cheaters:  looking at someone else’s test, stealing the test key and writing down the answers, scribing in ink on hands, arms, legs, top of feet, and that one strange kid who had the entire test key on his belly.

There were the “crib” noters, with tiny, tiny pieces of paper, carefully filled with needed equations or factoids.  In the event of emergency, the scraps could be quickly wadded up and discarded, or in the extreme, swallowed.  And then there were “committee” cheaters, groups who would design sectional crib notes, then stealthily pass them among the class during the test.

Electronic Age

But even in those ancient times before computers and cell phones, we had the “advanced” cheaters, the kids that spent so much time prepping to cheat, they should have just studied – it would’ve been easier.  There was the guy who carefully arranged the “smart” kid to sit diagonally from the very shiny silver fire extinguisher.  He made his grades on the reflection, making sure he only got a ‘C+’.  An ‘A’ would be far too suspicious.  He would also try to array multiple smart kids around him.  It gave him the option of taking the majority answer in case there was a controversy.

Then there was the “hat” kid.  Every answer was written in near microdots on the inside of the brim.  If the teacher let him keep it on, there was a lot of squinting up.  If he had to take it off, there was a lot of glancing down at the floor.  Either way, he had whatever answer he needed.

Of course modern technology brought technical cheating advances.  There are the earplug kids.  A student from the period before recites the answers from a copied, photographed or purloined test, while the hardwired cheater writes them carefully down.  This also has variations in texts, photos, and such.  And there is the “Googler”, ready to reach for “a friend” to determine the appropriate response, even for essay questions.

Retribution 

As a teacher, you had to assume there were cheaters in your class.  You were on guard: vigilant as students took their exams, suspicious of those with exactly the same wrong answers, and cautious of electronic theft.  You took precautions:  multiple versions of the same test, long walks through the aisles, a seat carefully chosen in the back of the room so students wouldn’t see where you were looking.

The short answer was – someone was always trying, and if you assumed your class wasn’t cheating, you most certainly were wrong.  The entire school knew which class was “easy” to cheat in. If you didn’t try to catch cheaters, they would try it again and again and again.

And when you caught someone cheating, it was important to “make an example”.  I wouldn’t hold them up to public ridicule; that’s just wrong no matter the offense.  No, I used a zero on the test, a call to parents, and a word to guidance counselors.  All served to “motivate” the cheater to change their ways.

Big Cheaters

Getting elected to President of the United States is the biggest test of all.  There are a myriad of ways to cheat, to find a way to shortcut the system in your favor, or make it worse for your opponent.

Maybe it’s cooperating with a foreign nation, or enflaming the electorate on social media.  Perhaps it’s stealing information or strategies, so that you can better counter with your own tactics.  Or, it’s simple slander, telling lies about the person. Once those hit the Media, they can never be disproved or ignored.

 Like cheating in class, the excuse of proclaiming that “everybody does it” just doesn’t fly.  First of all it’s not true, not everybody does cheat in class, or in political campaigns.  Secondly, it’s reasonable concept that someone running for leadership in our society shouldn’t “cheat”.  It might sound quaint, but that should be the “norm”.

No Consequences

But when you catch someone cheating, the surest way to encourage him or her to do it again is to have NO consequences.  Let’s look at the Trump Campaign.

  • Took information from Russian Intelligence – no consequences.  
  • Asked for foreign countries to assist, Russia, China, and Ukraine – no consequences. 
  •  Interfered with the counting the votes by flooding phone lines with bogus calls so election results can’t be transmitted (Iowa this week) – no consequences.
  • Encouraging voters to fraudulently claim to be a member of the opposition party so they can vote for candidates that are easier to defeat – no consequences.

Robert Mueller marshaled facts showing the Trump Campaign worked with Russia.  Despite the persistent drone of Republican claims, Mueller DID NOT say there was “no collusion”. In fact, he cited hundreds of instances of cooperation.  What Mueller said was that he was unable to find enough evidence to reach a criminal certainty.  Trump got away with it.

Ukraine

Attorney General Bill Barr refused to let the Justice Department look at the Ukraine scandal.  So it was Congress, specifically the House of Representatives, who brought the information to light.  The President countered by releasing a summary/transcript of his phone call – calling it “perfect” – even though a plain reading of it proved the House’s case.  Seventeen witnesses and tons of documents ultimately backed up the House, and they did the one thing they could do.

They impeached the President.  They challenged the Senate of the United States to judge his actions and determine both the facts and the penalty.  The Senate failed to act.  Republican Senators quite literally stuck their fingers in their ears and sang “♫ La-La-La ♫” so they didn’t have to hear what the President did.  

Still Cheating

Yesterday the Attorney General announced that “all candidate investigations” had to be approved by his office.  He even tried to illegally expand his authority to the House and Senate, an action I’m sure Speaker Pelosi and Chairman Schiff will gladly ignore.  Bill Barr is proving to be the President’s best weapon – the virtual teacher who let’s his personal “student pet,” cheat.

Democrats couldn’t be blamed for taking the view: “if Trump cheats, we have to cheat as well”.  That would be wrong.  They can’t run on the issue of Trump’s lack of morality, and then show they are lacking too.  So what can Democrats do?

They have to run honest campaigns.  They should show the American people that they don’t have to cheat to have better ideas about what’s good for our country.  In fact, not cheating is the first really good idea. Americans don’t want cheaters as their leaders.  America wants leaders they can trust.

The Arc of the Universe

 “Between 2014 and 2060, the US Population is projected to increase from 319 million to 417 million…by 2030 one in five Americans is projected to be 65 or older, by 2044, more than half of all Americans are projected to belong to a minority group (any group other than non-Hispanic White alone), and by 2060, nearly one in five of the nation’s total population is projected to be foreign born.” US Census  – Projections – 2014-2060

Post Mortem

No wonder Republicans are worried. 

After the Mitt Romney lost in 2012, the Republican Party did a “post-mortem” study of their last two Presidential elections losses.  In the 100-page report released in 2013 (Atlantic), the future of a GOP that didn’t make drastic changes was foretold.  The Party was described as shrinking; closed to minorities, women, youth and Hispanics.  The Republican Party of 2012 was a Party of white men, and the “post-mortem” emphasized that to survive, it had to reach out to the groups that were ignored.

The Party was looking for a different identity, one that could expand to Hispanic voters in Florida, Texas, Arizona and California, reach out to a growing African-American middle class, and be more inclusive of youth and women.  It could be the Party that recognized the changing demographics of America, one that could survive into the 2030’s and beyond.  It could be the Party of Jeb Bush, or Marco Rubio, or even John Kasich.

Rise of the Alt-Right

But the Republicans didn’t take into account the growing alt-right movement, lead by publications like Breitbart and leaders like Steve Bannon. At the beginning those “insurgents” operated outside the Party structure, and outside of the main Republican media organ, Fox News.  But when there were sixteen original candidates for the 2016 Presidential nomination, the alt-right forces were able to consolidate behind a single candidate, Donald Trump.  

Trump threw out the “post-mortem” and created a new “populist” Republican doctrine.  He reached out to disaffected whites, particularly white men, who felt that the changes in America symbolized by the Obama Presidency were leaving them behind.  And he offered the Christian right everything they wanted:  Supreme Court Justices to ban abortion, abolition of “offensive” Affordable Care Act provisions, renouncing expanded LGBTQ rights, and undying loyalty to Israeli expansion. 

Instead of expanding the Republican Party base, the Trump campaign unified this new white populism.  And while Trump was unable to win a majority in the early primaries, his consolidation led to pluralities against the divided opposition.  This led to his nomination, and ultimately his election as President, despite Trump’s personal character flaws.

Minority Rule

Throughout his first term, Trump has never had a majority of Americans view him as “favorable”.  It is still his “minority”, his base that maintains loyalty.  And, in the mean time, the Trump Campaign has consolidated its power.  Now, there is no Republican Party outside of Trump:  he controls the National Committee, the financing, and the media organ, Fox News.  Few Republicans will stand against him, their fate is sealed by a “tweet”:  ask John Kasich, or Mark Sanford, or now Mitt Romney.

But ultimately, the “arc of our universe” is against the Republican Party.  Within two decades, white people in America will no longer be a majority.  A political party that isolates itself from non-white voters cannot look to survive.  And in the next twenty years the realities of climate change will become both apparent and irreparable. The Party that denies that cannot expect to be trusted.  

Grabbing Power

So the Republican Party of today is doing everything it can to consolidate power.  Mitch McConnell is single handedly packing the Federal Courts, with 25% of Appellate Court judges now Trump appointees.  McConnell held a Supreme Court seat open through the final year of the Obama Administration, securing an “extra” seat for Trump.  And, if another seat were to come open before January, whether Trump wins reelection or not, you can expect McConnell to swiftly move to fill it.

On a state level, the Court packing has already increased Republican power.  The Courts allowed the Republican gerrymandering plan, RedMap, to continue. RedMap creates extreme alterations to Congressional District maps maximizing the number of Republican representatives and minimizing Democrats.  In states like Ohio, North Carolina, and Georgia, it allows Republicans to have a disproportionate majority of Congressmen. 

Last Bastion

And the Republican Party is a fierce defender of the Electoral College system.  It reduces the overwhelming influence of popular votes in Democratic states like California and New York, and allows results where the winner of the popular vote still does not become President.  Hillary Clinton won by three million in 2016 but lost the Presidency. The Trump strategy for 2020 is geared to produce a similar result.

The Republican Party has become the Party of “rural America”.  The “Red States” of the middle of America don’t have population, but they do have two Senators a-piece, just like the populous states on the coast.  As the population increases in the next twenty years, the relative power of those Senate seats will become more important.  Holding onto the Senate must be a Republican priority; it will be the last bastion of their control.

None of these actions prevents Democrats from winning.  What they do mean is that it will require more than just a slim majority.  In order to overcome the Republican structural advantages, Democrats will need an overwhelming popular victories, not only winning the Presidency, but the Senate and State legislatures as well.

But if it doesn’t happen in 2020, change in political power is still inevitable.  The Republican Party has chosen the past.  The future is Democratic. The arc of the American universe is long, and it bends towards diversity.  

Not When You’re Angry

The “Send” Button

There’s a wise saying, never write a letter when you’re angry.  In the modern age it’s been translated to “don’t push the send button”.  So I’m writing today’s essay under duress, it’s been burning in my head since somewhere in the middle of the State of the Union address last night.  The speech made me more than angry: listening to it was like having surgery under local anesthesia; you know you have to do it, but you so much want to get up and leave.

To help me stay seated through the Presidential fiction I tried looking at Facebook.  That didn’t help, my Trumpian friends were so excited they couldn’t contain themselves.  “I guess Democrats don’t want a good economy,” one said, while others were overjoyed at the shocked expressions of Speaker Nancy Pelosi.  I’m a thumb typist on my phone, and my thumbs hovered over four-letters.  Don’t push “send”.

A Fictional Economy

It started with Trump’s economic claims.  The lies came fast and furious; so quickly you couldn’t fact check one before three more were spouted.  But the overall impact was to somehow paint a picture of an America where everyone had wonderful jobs, were paid living wages, and doing better than they ever had.  That vision is just not true, and the multiple fact-checking news services list one false claim after another (NYT). 

One real Trump truth was that unemployment is very low.  Sure there are lots of jobs, and it’s a damn good thing.  Many of those jobs aren’t paying a living wage; it takes a couple to even keep up.  Here’s a fact that the President didn’t tell you:  40% of Americans can’t handle a $400 emergency bill; the car breaking down, an uncovered medical expense, or a hot water heater going bad (CNBC).

My only guess is that either my Trumpian friends are “among the blessed” doing well, or they so hope to be, that they are willing to throw everyone else under the bus.

What Health Care Program?

There were lies about a non-existent Republican health care program, lies about protecting pre-existing conditions from a President in Court right now trying to rip it away, lies about cutting pharmaceutical costs.  Lies easily refuted, but lies that many Americans will say:  “if the President says it, it must be true”.  It’s not.

You can’t blame Democrats for their incredulity.  The President claimed credit for prison reform, family leave, and reduced drug prices; all bills generated from the Democratic House majority, with some still sitting on Mitch McConnell’s desk waiting for Senate action.  At first I thought the “women in white” were giving the President the universal hand signal of disrespect, instead they were giving him a three-fingered salute for House Resolution Number 3, “The Elijah Cumming Reduce Drug Costs Now Act” to reduce drug costs.  It’s there on Mitch’s desk too.

Feeding the Sharks

Then there were the “red meat” parts of the speech.  I expected them: “I will protect your right to have a gun” and “school choice to free children from government-run schools”.  The best one, “a Constitutional Amendment so children can pray in school,” which isn’t even a thing.  Children can pray in school, but adults can’t force their religion on kids in school, the real goal of the Christian right.  

And “I have brought peace to Israel and Palestine,” a proposal brought to you by nepotism, as little Jared read books  “for three years” and saved the world.  Even his buddy in Saudi Arabia isn’t buying into it, much less the Palestinians and the other Arab states.  It was more red meat for the masses.

But Rush Limbaugh, one of the miserable founders of American divisiveness, gets the Presidential Medal of Freedom?  And Melania hangs it on his neck, right there in the House of Representatives?  Who gets the award, I guess, is the President’s prerogative, but to do it in the House chamber is Trump “pissing in the corner”. 

The Uncle Don Show

And then there was State of the Union “Game Show”.  It was perhaps the lighter aspect of the hour:  what will be the next unexpected gift?  Check under your seat, maybe there’s a car key.  First, a thirteen year old gets to look forward to the Space Force, and we find his one hundred year old grandfather, a Tuskegee Airman and career Air Force veteran, gets a retirement promotion to Brigadier General.  Then, a thirteen-year-old girl gets a scholarship to a private school.  A border guard gets promoted to a supervisory position, and a mother of a premature baby gets funding for her pre-natal care program. Finally, the climax, the President brings a soldier back from war to reunite with his family.

It would have a lot more impact if he were bringing all the troops back from war to reunite all the families.  He’s not.

Tearing it Up

Some Congressmen got up and left.  I can’t blame them.  Speaker Pelosi was caught, she couldn’t leave, and she couldn’t stand the constant barrage of falsehoods.  “That’s not true” and “that’s our program” came out of her mouth: she was skewered by lie after lie with no way to respond.  

The speech wasn’t worth the parchment it was printed on.  The Speaker demonstrated what the President did to truth:  she tore it into pieces.

It Takes a Disaster

The McGowan

For almost thirty years I managed a high school and middle school Cross Country meet in Central Ohio, the McGowan Invitational.  Cross Country is the sport where kids run for miles, 3.1 miles for high school and 2 miles for middle school.  But unlike track, where they loop lap after lap, in Cross Country the race is over fields, hills, and in the case of our meet, through forest paths.  It is running at its essence; without the controls of lanes and all left turns.

Our meet grew through the years.  It started with a couple of dozen teams, a few races, and a picnic when it was all over. But by the 2000’s it turned into one of the biggest meets in the state, with hundreds of school competing in what ultimately became nineteen different races.  We started at nine in the morning and ran races until six at night.

It’s pretty simple to “administrate”.  The kids in each race line up at a starting line, the gun goes off, and 3.1 miles later they come across the finish line.  To “score” the meet, the finish order, first to last, is recorded along with their times.  No big deal.

5000 Runners

But as the size of the races grew, the sheer volume of kids crossing the finish line at the same time increased.  When it reached hundreds of kids per minute,  crossing a narrow finish line to get “lined up”:  some falling down, some throwing up, all struggling for breath; maintaining that order was a challenge.

Our finish line crew was amazing.  Of the hundreds of races, and tens of thousands of athletes crossing the line, they kept order almost every time.  They were so good I can talk about the two times it didn’t happen, when all of the backups and safeguards simply failed.

The first time was absolutely my fault.  We had far too many kids, over five hundred, in one race.  When two hundred hit the finish line within a minute of each other, there was no way to move them through the “chutes” and get their information.  The line stacked up, out of the chute, into the field, and back down the course.  We did end up getting “the order” correctly, but their times were lost.

We never ran a race that large again.  Adding races made the day longer, but we realized that our “forest” paths couldn’t handle the crowds, and neither could our finish.

Wrong Path

The second time wasn’t our fault.  Some high schools kids from a “guest” school thought it would be fun to change the “gates” that directed kids along the paths.  I got a radio call: the race was in the wrong place, running the wrong way.  We had hundreds of kids running a different path in the forest.

We re-directed them, kept the race moving, and ultimately got them to the finish line.  Those poor middle schoolers ran 2.4 miles instead of 2.0, and while we got all of the order and the times, those times were meaningless.  

The next year, instead of ropes and flags, the gates in the woods were metal posts and steel fencing.  No one would alter our race again.

We never had the colossal disaster, we never completely “lost” a race.  We switched to electronic timing, RFI chips tied into shoes and video camera finish line, and kept on going.  While I no longer manage, the McGowan still continues as one of the best meets in the state.  In the end, kids love to run in the woods.

Last Night in Iowa

Iowa had their “meet” last night.  Iowans love the caucus system of choosing their candidates, they love the community coming together to talk through their choices, rather than the cold solitude of the ballot booth.  The Caucus is like Cross Country, it’s freeform and open and infinitely transparent.  Supporters all sit together, cheering and talking, and seeing the choices that all of their neighbors make.   A primary is like track:  ordered, disciplined; easily controlled.  No one changes the gates in a track meet.

Last night Iowa “lost the race”. 

They were striving to satisfy the media demand for information, the public demand for speed, and the party’s demand for transparency.  Instead of reporting a single result, how many “delegates” each candidate earned in each precinct, now they were reporting raw results, from the first count, and from the second count, and from the final count; and then the delegate apportionment.

Iowa had a system that was essentially pencil and paper.  The precincts wrote down the numbers, then at the end of the night called them into a central “scoring” office.  At the office, there were lots of people ready to tabulate the results.  When it was that single result, it took about two hours to tabulate the 1700 individual precincts.

Too Much Information

But this year, with all of the extra information coming out, the Iowa Democratic Party decided to use  modern technology.  They had an “app” developed for phones, and asked the precinct captains to download the “app” and report using it.  The problem, in our era of Russiagate and hacking, using the “app” opened the opportunity for the system to be infiltrated.

The Iowa Dems decided to hold onto the reporting “app” until the last moment to protect it from attack.  But when it was finally released to the precincts, it didn’t work as they expected.  So precinct captains went back to old-school paper system that they knew so well.

But the people weren’t there to take the phone calls in central headquarters, the Party was counting on the “app”.  So now they’ve got a mess.  Hours waiting to give results, and no one there to tabulate them.

The paper trail is there, and we will know exactly who did what in Iowa.  The media, sitting on their hands for an entire Monday night, is making a huge deal of the failure in process.  But the process didn’t fail, Iowans selected their candidates.  We just don’t know the details, yet.

Dems Own It

I know, I heard it all last night.  How can we convince voters to let Democrats run the country when we can’t even run a caucus in Iowa?  Trump is laughing, Don Jr. is goading, the Party looks foolish.  We should “own” the problem.

We do.  We “lost” the race, and maybe Iowa won’t lead off the electoral season anymore.  But in the end, the results will be clear, and defined, and dependable.  It’s not a question of accuracy, it’s a demand for instant gratification.  And that’s the lesson we should learn from Iowa.  Every election, caucus or ballot box, should have a paper system that can backup all of our “fancy” electronics.  Why?  Because disasters happen, and the one thing every election has is time.  Time to count paper ballots, time to make sure it’s right, time to be accurate, not just fast.  

Folks can argue whether a caucus system is a good way to determine candidates, just like they argue about whether Cross Country or Track is better.  I would argue there is room for both:  like in running, each brings out a different set of  skills from the candidates, and from the communities.  Sure the Iowa Democratic Party screwed up, but they’ll get it right.  

Maybe it’s just more paper and pencils.

It Begins

It’s Monday, February 3rd, 2020.  It’s the day that many Americans have been waiting for since the early morning hours of Wednesday November 9th, 2016; when the Trump Presidency became a nightmarish reality.  It’s the beginning of the Presidential election cycle, and for Democrats, it begins in Iowa.

Different Ways to Choose 

If you know anything about the American electoral process, you know it’s eccentric. We have the Electoral College that gets selected to choose the President.  And we have differing ways to choose who are the Presidential candidates for the political parties. 

Here in Ohio it’s pretty simple, you ask for a ballot for the Party of your choice, and then you pick one candidate from the list on the ballot.  It’s an election, and though the winner doesn’t “take all” this year, there definitely is a “first place”.  That primary chooses delegates to the nominating convention, divided by the candidates’ ranking in the vote.

Four states, Alaska, Kansas, Hawaii, Nebraska, will make their Presidential candidate selection using “ranked choice” voting.  Voters rank the candidates by preference.  The “first place” votes are counted, and the candidates with less than 15% are dropped.  Then the ballots are recounted without those candidates, with those that had the dropped candidates at first now counting their second choice as first.  The delegates to the nominating convention are then apportioned by those final results.

The Caucus

And then there are the caucus states, leading off tonight in Iowa.  In caucus states you don’t go to your precinct to vote – you go to meet (caucus).  At the meeting, held in a big room (think high school gym) you walk in, and go to the section of the gym designated for the candidate you support.  So go to the “Biden Corner”, or the “Bernie” section of the bleachers, or the “Yang” center court.  When everyone is organized, they count the people in the sections.

No, it’s not over.  When the first count is done, any candidate that doesn’t have at least 15% of the total no longer counts.  Those who were in their “corner” are now free to go to their “second choice,” any other candidate still in the count.  So in that brief reorganizing time, there’s a tremendous amount of persuasion as neighbors try to convince neighbors to come over to “their” corner.  After the second count, the results are reported, precincts are added up, and the delegates apportioned.

Stand UP

In the caucus, neighbors have to literally show up and stand up for a particular candidate.  Unlike the secret ballot in the voting primaries, in the caucus states neighbors get to see where everyone in the neighborhood stands, literally.  By the way, there are no eligibility rules, if you show up to participate in the Democratic caucus, you are a Democrat for that night.  This leads to some concern that Republicans might try to “candidate shop” to choose a weaker candidate to oppose President Trump.

But that can happen in any primary.  Even here in Ohio, where you have to declare a party to get a ballot, you are allowed to switch parties.  Generally though, Republicans take a Republican ballot, and Democrats get their Democratic ballot.  Most people don’t get hung up in trying to “rig” the general election.

The Start

So, after a year or more of debates, discussions, plans and pledges; we finally begin the process of choosing.  It is “just” the beginning, the primary cycle will continue into June.  And even then, there’s no guarantee that the Democratic Party will have a “winner”.  There may still have to be another “caucus”,  the big one at the Democratic Convention in Milwaukee in July.  If you understand the Iowa caucus method, then you have a pretty good idea how a “contested” Convention might turn out.  A first ballot with no “winner” would then start a “re-sort” like the gyms of Ottumwa, or Davenport, or Limoni.

The Democratic Party is raucous. “Bernie Bros”, “Yang Gangers”, nervous Biden backers, Warren planners, fresh-faced Mayor Pete followers and all the rest are fighting it out.  Except of course for Mike Bloomberg, who’s buying up all of the television time. They will test each other, raising questions about policies and attacking past records.  Don’t worry:  they won’t reveal any secrets that the Trump Campaign didn’t know.  

And by Thursday, July 16th we will have one candidate, and one mission: to end the Trump Presidency.  It’s not that big a deal, just the fate of the American Republic and maybe the whole world.  After all the fighting – Democrats will be one.

Divide and Fail

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press… First Amendment, US Constitution

Wedge Issues

We are living in an era of political divisions.  While there have always been disagreements and differences among voters; today we have refined the art of “wedge politics”.  Candidates, parties and interest groups profit and grow by finding ways to divide people.  Those divisions motivate their supporters to vote, and more importantly, donate.

So we find that the rural impoverished in our nation somehow choose to support the political party that officially represents the wealthy.  It’s not about the money, or the growth in the stock market; those folks never see any of that.  No, it’s about the “moral” issues:  the artificial divisions created to encourage citizens to see each other as “them and us”.

Divide and Conquer

Those groups use the explosive issues of our time:  guns, faith, gender, race.  It isn’t random chance that Fox News, both local and national, with mind numbing frequency, show story after story of “regular people” being attacked.  Who ever heard of the term “home invasion” twenty years ago.  But today, we are told “be armed” to protect ourselves, be prepared for the “stranger” (probably of a different race) coming through the broken window or smashed front door.  Be scared, of strangers who look or act differently and be armed for defense, we are told.

We are told that progress for “others” must be at the expense of “us”.  Our population has almost doubled in sixty years, but we are told that our world is a “zero sum” game.  What we’ve got someone else wants to take, and we should use every legal and social trick to keep it.

It makes it so easy to give into the fear within us, the dread of something different.  So many forces in our society are saying “it’s OK”.

Identity

I spent forty years of my life as a high school track coach.  For forty seasons, I had the privilege of working with young athletes, helping them improve, teaching them the techniques to maximize their efforts, and supporting them through success and failure.  Today in my former profession, there is great unrest over the concept of “gender”.  

When I was a young man, homosexuality was barely discussed.  It was literally placed in the closet.  It took immense courage for a gay person to live in the open, in some places in the United States it was still illegal.  “Straight” folks couldn’t imagine why a person would be gay.  For me it took the willingness of gay friends to talk and explain that just because I was “straight” didn’t mean that I was “right”.  Normal for them was gay; that was their life, even if it wasn’t mine.

Now we know that identity isn’t just gay or straight.  We know that there are folks who are born physically one gender, but are mentally the other.  “Normal” for them is the gender in their brain, to live any other way is to masquerade a lie.  How we can demand of those “trans” folks to live that lie, so that “we other people” can feel “comfortable”?

The Trans Athlete

In track and field today there is controversy of what to do with “trans” athletes.  To some it’s all about competition and “advantages”.  How can an athlete born physically a male dare identify and compete as a female?  “It’s not fair” they say, and in three states, Tennessee, Georgia and Washington, laws have been proposed that would require athletes to compete as their birth gender, or not participate at all. 

They never bring up the other side, the athlete who identifies as a male.  They don’t have the inherent “advantage”, I guess, so they can compete without the same threat.  But the laws don’t make that exception.  There are ways to “balance” the differences, the advantages, so that competition can be “fair”.  If athletics is education, not just competition, shouldn’t it be about encouraging all instead of banning some?

Essentially those proposals tell transgendered kids that they are not welcome in athletics.  All of the benefits of being on a “team”, the very real lessons in learning and life, are denied, even by public schools that are governed by the First Amendment prohibition against establishing “religion” or abridging free expression. Denied because adults are “threatened” by the concept of the transgendered.   Since their mind can’t conceive it, they don’t believe it.

And this is a larger lesson in our current society.  Americans are being told that “our” culture is threatened by these changes.  They are encouraged to take steps to protect “our right” to maintain our own beliefs and prejudices.

WE, THEY and US

WE are allowed to believe what WE want, and to see others as WE wish.  But what WE don’t have the right to do, is tell them how THEY should believe, and how THEY should act.  WE have the right to our own religion, but not the right to enforce that religion on THEM.  In fact “WE and THEY” is the problem. 

It should be US.  WE should have our own beliefs, but recognize that differing beliefs aren’t wrong, just different.  WE need to accept US, a diverse population, differing in religion and gender and race, as all part of a WHOLE.   

Why?  Because we are seeing what division does to our country.  Because we know what we can do as a diverse people who are whole.  And because we face crisis upon crisis, that will take ALL of US to solve them. 

Pass the Ball

Hoops Talk

It’s still too soon to tell what the US Senate will do regarding the Trial of Donald Trump.  The critical vote will probably come today, when they will determine whether to seek evidence and witnesses.  That vote is, as reporters put it, “a jump ball”.  From here, it feels a lot like the Kavanaugh nomination, a “jump ball” where the refs will tip it to a pre-determined team.  And just like Kavanaugh, don’t depend on Susan Collins to be a tower of moral strength.

But even if the outcome is predestined, the Senate Republicans should “jump through the hoop” of listening to John Bolton’s testimony.  Regardless of their final decision of exoneration, the voters of the United States deserve the right to hear what the former National Security Advisor has to say.  

The Fix 

It’s not likely to happen.  Senate Republicans don’t want to hear that the President, their President, did exactly what the House of Representatives said he did.  They absolutely refuse to know that Donald Trump used the taxpayer supplied and Congressionally mandated funds of the United States to try to extort Ukraine for political dirt on Joe Biden.  And they certainly don’t want to hear about it first hand from John Bolton.  They’d rather read it in his book next month, when they can wring their hands and use the ultimate insult to their old friend:  disgruntled employee.

For them, it’s all well and good that “the fix” is in.  They know it’s fixed; they don’t want their Senatorial noses rubbed in it by Bolton.

I keep waiting for the “profile in courage”, that Republican Senator who casts political considerations aside and makes a morally right decision.  But alas, it’s not an era of courage.  It seems that Senate Republican courage was buried at Annapolis alongside John McCain.  Mitt Romney, by the way, isn’t that profile either.  He has as safe a seat as exists there in Utah, in fact, he has a Republican constituency that is as morally appalled by Donald Trump as most Democrats.  Still, it’s good to have him there.

Profile of Fear

The biggest disappointment is that I truly believe most Republican Senators (and many “normal” Republicans) are disgusted by the President’s actions.  They are choosing to ignore their “better angels”.  Senators fear the President, the impact his single tweet could have on their career. They fear the Republican Party mechanisms that the Trump Campaign wholly controls, taking the financial support of their own Party.  And they dread being “primaried” by other Republicans more loyal to Trump.

They rationalize:  “…if I stand up for this, I will be left alone, out of office, and the next Senator might well be worse for the country”.   That next Senator might be a Trumper, but it might just as well be a Democrat.  Ask the people of South Carolina House District 1, who “primaried” conservative Republican Mark Sanford out of office after a Trump tweet, and then lost the general election to a Democrat.   Professor Dershowitz, for all the nonsense he spouted in the past couple of days, managed to make one clear, correct point in his dissertation.  Most politicians truly believe what’s in their best is also in the nations’ best interest.  

Take the Shot

Speaker Pelosi didn’t want to move on impeachment.  In her thinking, if the President’s actions outlined in the Mueller Report didn’t create national outrage, then Democrats were better sticking to their positive agenda of health care, reducing income stratification, and improving voting rights.  That was how they won the House in 2018. 

But what drove her to allow the process to begin was Trump’s obvious determination to “fix” the 2020 election.   The Muller Investigation didn’t stop him; in fact, it emboldened him to extort Ukrainian President Zelenskiy.  That was the plan:  Trump couldn’t allow the election of 2020 to be on a level playing field.  He had to find a way to make Joe Biden as negative and ugly as he was.  He had to cheat to win.  

Speaker Pelosi and Chairman Schiff entered impeachment with their eyes wide open.  Even though the evidence of the President’s actions and obstructions was overwhelming, so was his control of the Republican Party and the mind numbing power of Fox News.  But impeachment and the Senate trial was the only way to place the evidence in front of the American voters.  They had to “take the shot”. 

To the People 

The President’s attorney Pat Cipillone calls for Senators to “…leave it to the people of the United States”.   Whether he believes it or not, Democrats recognized that was the probable outcome of the trial as well.  What the Trial does, is lay out the case to the voters.  It has also laid bare the stranglehold the President has taken over his own political party.  No witnesses, no evidence, no subpoenas:  the American people know what a real trial is, and “this ain’t it”.

Democrats have taken their best shot.  The Republicans in the Senate have “rigged” the game so that the President cannot be touched.  Now it is up to the American voters in 2020. Unlike the Republican Senators so afraid of the truth, they are willing to vote for the kind of America they want, even if the election process is still slanted in Trump’s favor.

When the trial ends, the people have the ball.

Impeach Lincoln

Con Law 101

I spent yesterday listening to Alan Dershowitz lecture in the Trial of Donald Trump.  As the youngest tenured law professor in Harvard University history, Dershowitz is a fifty-year veteran of law school classrooms.   One consistent pattern of all law school pedagogy is to follow a legal principle to its logical extreme.  It starts as a reasonable legal precept, like Presidents should legally act in the nation’s best interest.  And that’s where Professor Dershowitz began.  

But then he chased the idea to its extreme, reaching a point when he said that whatever a President does to get re-elected, that President believes it’s in the best interest of the country, so it’s legal.  Anything he does.  Dershowitz might have missed the blank check for any Presidential action he was promoting; but no one else in the room, not even his own legal compatriots, were willing to climb out on that limb.

In part of that slide to the extreme, Dershowitz mentioned Abraham Lincoln.  He claims that the actions Lincoln took in the crisis of the Civil War were Constitutional, and if those were, certainly the “quid pro quo” action of Donald Trump was.  

To Hell

I am now going to history “Hell”.  

Abraham Lincoln is arguably our most revered leader.  While George Washington established the process and structure of the Federal Government, it was Lincoln who established “the heart” of the American experiment.  He didn’t allow legal structure or even long held traditions to prevent him from saving the Union.  He did whatever he had to do.

It wasn’t legal.  Abraham Lincoln violated the text and spirit of the US Constitution time and time again.  When Dershowitz used Lincoln as an excuse for Trump, he made one mistake.  Lincoln could have been impeached.

I know, your eighth grade history teacher never, ever, ever said that; even if it was me.

Violating the Constitution

But let’s look at what Lincoln did.  In the first few weeks of his Presidency, he suspended the writ of habeas corpus in Maryland and summarily imprisoned a state government official. The US Army held John Merryman, a state legislator, imprisoned in Fort McHenry. Merryman’s attorney went to the Chief Justice of the Supreme Court, Roger Taney, for a writ of habeas corpus releasing him from custody.  Taney granted the writ, but Lincoln defied the ruling and kept Merryman in jail.

This wasn’t the only action Lincoln took that could have resulted in impeachment.  On a purely legal basis, the Civil War itself could be viewed as a huge expansion of Presidential power.  But more specifically, Lincoln took property away from private citizens; property protected by the Supreme Court in Dred Scott v Sanford.  We see it as a heroic measure in US History, the Emancipation Proclamation, but it clearly went against legal precedent.

It was never tested in Court, but Lincoln and the Congress recognized that it would not hold by itself.  While Lincoln was no longer around after the Civil War, the Congress “post-dated” the action by passing the Thirteenth Amendment abolishing slavery throughout the nation.  

Rigged Election

And finally to Professor Dershowitz’s story.  Lincoln’s Secretary of War, Edwin Stanton, made no secret that he wanted the Army to support Lincoln for President against his popular Democratic opponent George McClellan in the election of 1864.  Army units that were Republican were sent home to vote, those that were Democrat were faced with duty on the front lines.  Army officers who spoke out for McClellan were actually dismissed from service.  Cadets at the Military Academy at West Point, who attended a Democratic meeting, were forced to dig a live sewer line from the Superintendent’s home.  

General Sherman complained that he needed the troops for battle, but Lincoln made it clear that their Republican votes were more important.   As Professor Dershowitz pointed out, Lincoln saw his re-election as furthering the nation’s goals, and used the votes of his troops to get it done.

For the Union

Ok, stop writing that nasty comment on this post.  I don’t think Lincoln should have been impeached.  Lincoln defended the Union, and saw that as his highest calling, even above defending the Constitution.  While he didn’t write the phrase, Lincoln did understand that the Constitution wasn’t a “suicide pact” that the nation should blindly follow into oblivion.  He did what he needed to do to assure that “…government of the people, by the people, and for the people shall not perish from the earth”.

That doesn’t mean that Donald Trump should get a pass.  Lincoln’s actions were in a moment of national extremis, when the very existence of the United States was at risk.  Trump extorting Ukraine for “dirt” on Joe Biden can hardly be seen in the same light.  And that’s the ultimate flaw in Professor Dershowitz’s analysis.  We can’t compare today’s crisis to the Civil War.  

But we certainly all can agree:  Donald Trump is no Abraham Lincoln.

Justice Denied

The United States Department of Justice stands for enforcing the law and protecting the Constitution.  It’s multiple parts; from the FBI and DEA, to the Civil Rights and Anti-Trust Divisions, have often stood for the “good” done by the United States government.  

But Justice is also a part of the executive branch, and subject to the whims and the desires of the leader of that branch, the President of the United States.  The career employees of Justice are often placed in an awkward balance.  They are a law enforcement agency, dedicated to balancing justice with “Qui Pro Domina Justitia Sequitur”emblazoned on their seal (who prosecutes on behalf of justice).  But they are led by a political appointee, and are an arm of the Presidency.

Blind Justice

And it is this balance between “blind justice” and politics that has been the story of Justice for the past fifty years.    The modern story begins with the infamous Director of the FBI, J. Edgar Hoover.  He ran the Bureau with an iron hand, using its information gathering skills to get “dirt” on national figures and extort control of them.  It worked, and Hoover was left as a dictatorial authority in his agency for forty-eight years, from the roaring twenties into the 1970’s.  

To balance Hoover’s power, in 1961 newly elected President John Kennedy placed his brother, Robert Kennedy, as Attorney General.  Bobby was his brother’s closest confidant, his campaign manager, and the legendary Kennedy family “hatchet man”.  The President might be glib and smiling; Bobby was the one who said who was fired.

Bobby took the Justice Department in the direction of promoting civil rights, much to Hoover’s dismay.  While Bobby was sending US Attorneys in to prosecute Ku Klux Klan members, Hoover was wiretapping Martin Luther King Jr, spreading rumors of Communism and marital infidelity.  Hoover was too powerful to remove, but Kennedy served as a check against him. 

After the President was assassinated, and Lyndon Johnson took over, Bobby Kennedy soon left leadership of the Department.  But, his successors continued Johnson’s dedication to civil rights. Hoover also remained, using his extraordinary powers to attack the anti-Vietnam War movement.  

Watergate

It was in the middle of the Vietnam Crisis that Richard Nixon won the Presidency.  Nixon followed Kennedy’s lead, putting his campaign manager John Mitchell in as Attorney General.  Mitchell was focused on one thing, keeping Richard Nixon in power as President.  And as Nixon’s political philosophy and Hoover’s were much more compatible, the FBI became a part of the Nixon machine.

Nixon’s fall in the Watergate Crisis was much more than just a minor break-in at the Democratic National Committee offices.  Millions of dollars of campaign funds were spent on illegal actions, a White House “team” pursued Nixon’s agenda with illegal acts, and most of these actions fully involved the White House, the President, and the Attorney General.  By Nixon’s resignation, the country saw a Justice Department fully co-opted into illegal politics.  Mitchell went to jail, along with much of Nixon’s senior staff.

Independent Justice

After Watergate, the Justice Department, including the FBI (Hoover retired under a scandal of his own making) distanced itself from politics.  No longer was the Attorney General an extension of the Presidential campaign, and the Directors of the FBI were chosen for ten-year terms.   The Department took an apolitical stand, with the connection to the Executive solely at the senior level.  Perhaps this was most famously seen with President Clinton’s Attorney General Janet Reno, who remained clear of an Independent Counsel investigation of her boss.  That investigation, led by Ken Starr, resulted in the Clinton’s impeachment.

George W. Bush brought in a more political leader, John Ashcroft, and later Alberto Gonzales.  Barack Obama also tried to split the difference, with Eric Holder still asserting independence while serving the President’s agenda.  

My Roy Cohn

But Donald Trump made it clear from the beginning that he wanted an Attorney General to “have his back”.  Jeff Sessions got the job, but made a fatal mistake by following Department guidelines and recusing himself from the Russia investigation.  He left Trump undefended, and  Trump made Sessions’ life miserable, constantly deriding him even as Sessions tried to fulfill the rest of the Trump agenda.  

And when Sessions finally resigned, Trump found exactly what he was looking for, his own Bobby Kennedy or John Mitchell:  he found Bill Barr.  Barr auditioned for the job by writing an unsolicited twenty-page memo in support of the President, and immediately began to make the Justice Department into his own image.

Justice and the White House

One of the most powerful forces Barr has used is the internal Department legal evaluator, the Office of Legal Counsel (OLC).  The OLC writes the legal opinions for the Justice Department, and with Barr’s ascension, began to author a series of memos that backed Barr’s extreme view of executive power.  Those opinions become the “opinion” of the Executive Branch, and, short of a Federal Court opinion, has much of the force of law.

So when the OLC opined that the “Whistleblower Report” did not require Congress to be notified, or even Federal investigation, it became the basis for the White House defense of their actions.  And when the President’s lawyers in the Senate trial for impeachment quote the OLC as defining opinions, it’s should be no surprise that they back the President.

It took forty years for the Department of Justice to revert back to an arm of the White House after Watergate.  When the Trump era is finally over, it will take action by both the Congress and the new President to return to some semblance of impartiality again.  

Until then, it is impartial justice denied.

Only in Hollywood

Script Rejected

If you wrote it in a Hollywood script – no one would buy it.  No one would buy the impeachment of the President, rocked by the secret book laying bare the criminal actions of the President himself.  They wouldn’t buy Lev and Igor (that’s not Boris and Natasha), spending dollars like water in the Ukraine, working for “America’s Mayor” Rudy Giuliani, but financed by a Russian oligarch.

No one would believe an entire television network, not just dedicated to protecting the President, but supplying his spokespeople, his staff, and even his legal defense team.  And who could imagine that the lawyers who got the most infamous child sex purveyor of the century a sweetheart prison deal, would appear in the “well” of the Senate to intone solemn legal defenses for the President.

No, no one would buy it.  It’s not believable the producers would say, it couldn’t happen.  Yet here we are.  By the way, while all of this is going on, the President himself is announcing his son-in-law’s new Middle East Peace Plan, with the criminally indicted Prime Minister of Israel at his side.  Yeah, it wouldn’t even make it as a comedy.

Can’t Shoot Straight

They defense team can’t shoot straight.  Monday, their “big day” in front of the American people, they buried the lead. They started off with a long lecture by Ken Starr, the man who drove the impeachment of President Clinton for lying about a blowjob.  Starr lamented the “frequency” and “pettiness” of recent impeachments, as if he had nothing to do with it.  His performance was like a blanket and a warm fireplace:  it made it hard to stay awake.

And if they were smart, they would have spent the rest of the afternoon on Constitutional issues.  But they dropped their “bomb” a four in the afternoon, instead of saving it for “prime time”.  They launched their attack on Joe Biden, the leading Democratic candidate for President, while America was finishing up work and heading home to dinner.

After all, this is what the entire crisis is about.  Trump wanted to attack Biden, and he wanted the President of Ukraine, Zelenskiy, to do it.  Trump was willing to leverage American national security to get a Ukrainian investigation into imagined Biden corruption there.  

And even though Trump got caught and couldn’t get that exposure, he had a second chance.  It was yesterday, when the former Florida Attorney General Pam Biondi, dressed provocatively in what looked like a prototype “Space Force” uniform, launched her attack on Joe Biden and his son, Hunter.

Not Ready for Prime Time

It should have been in prime time.  If you’re taking the shot; then take it, don’t hide it.  But they blew that chance.  Instead of trashing Joe Biden in front of the a watching nation, they gave the prime time slot to wizened Alan Dershowitz, former legal prodigy and Harvard Law Professor.  Dershowitz dropped us all into a lecture from his old classroom, Constitutional Law 506.  You know you’ve got your audience when you are describing the legal acumen of the Justice who dissented to the Dred Scott Case in 1857.  That, for sure, cements the deal with the American people.

Oh yeah, did I forget the guy who wanted to go back and impeach President Obama?  He was after “Space Force” woman and before dinner.  I don’t think he earned much respect from the Senators, or the American people.

So here we are today, the last chance for the “gang that can’t shoot straight”.  What looked like a sure “win” for them, with a Senate majority firmly behind the President, is now getting shaky.  Senators know that President Trump can damage them politically, they know their “…heads could end up on a pike” if they cross him.  But they also know that the truth is out there, in the pages of John Bolton’s new book, in the SDNY evidence for Lev and Igor, and in the unspoken testimonies of Pompeo, Mulvaney, and the rest. 

Naked and Afraid

The President’s defenders have spent their time handing out “fig leaves” for Republican Senators to hide behind, giving them cover to vote to end the Trial.  But those same Senators can see the future, and that future will make them look naked and foolish.  The defenders will have to give them a “bigger leaf” today, if they want the trial to end this week.

Of course if you are a “swing” Republican Senator, there are no good choices to make.  If you vote with the President, you keep a core base, but lose the middle.  If you vote against the President, even just to allow witness testimony in the trial, you risk a Trumpian attack that takes you base.  And the Democrats in your state aren’t going to thank you with their votes; no matter what you do they are voting for someone else.

The most improbable ending:  Bolton testifies, twenty Republican Senators are moved, and the removal of Donald John Trump from the Presidency becomes a real possibility.  But don’t hold your breath for that.

It couldn’t even happen in a Hollywood script.

A Greek Tragedy

Today the President’s defense begins in earnest.  Starting at 1 pm in the Senate Chamber, the lawyers representing Donald John Trump will explain why he shouldn’t be removed from office.  

Defending Trump

I expect this afternoon we will hear from the academics. Alan Dershowitz will proclaim his wildly aberrant views on the US Constitution. Ken Starr will promulgate his belief that the House Managers have usurped the powers of the Justice Department.  Their arguments will add up to:  Article II of the Constitution gives the President near unlimited power including total control of the Justice Department.  And the Justice Department is the only agency in the government that can investigate the President.

The President would have to investigate himself, and recommend his own impeachment to fit into the Constitutional model the two will create. It leaves no real way to counter Presidential misconduct.

A Favor, Though

But tonight is when the real show begins, in prime time presented to Fox News viewers for the first time unfettered by commentary.  Tonight Donald Trump will achieve what he failed to get from the Ukrainian government:  Joe Biden’s name dragged through the mud.  

In the end, this is all about the 2020 election.  Trump beat Clinton because they both had record high negative ratings among voters.  For Trump to win in 2020, he has to replicate that scenario, including the improbably narrow popular vote victories in Wisconsin, Michigan and Pennsylvania.  His opponent has to be smeared, right or wrong. Trump has to find a way to make them equally “dirty”. 

Joe Biden doesn’t carry those negatives, even with a political “tail” that stretches back into the 1970’s.  If Biden wins the Democratic nomination, Trump must reduce him to this lowest common denominator to be successful.  That’s what made the Zelenskiy phone call so important, and what will make tonight so ugly.  It’s the Trump Campaign’s best shot to build the “stench of corruption,” around Biden, undeserved after fifty years of public service.  

So expect that Attorneys Cipillone and Sekulow will be serving in a campaign capacity rather than a legal one tonight.

The Fates

In the ancient Greek tragedies, there was always a chorus of “Fates” chanting in the background.  They foretold the future, and that future was always bleak.  The best acts of man were doomed to fail; it was the Gods that determined the course of events, not men.

Republicans in the Senate might well feel the same as those mere mortals in Greek tragedy.  They hope to control their fate, shutting off witnesses, evidence, and discussion by ending the Trump trial.  They are desperately trying to control their future, the President’s future, and the fate of the Republican Party.  

But just as the chorus chanted in the background in the Greek Amphitheatre, the media is foretelling events today.  Republicans are rushing the process to keep information out, but the steady drip of evidence not heard in the trial continues.

Last night the New York Times published a glimpse into former National Security Advisor John Bolton’s new book.  In it, Bolton testifies that President Trump specifically ordered military aid withheld from Ukraine to leverage their government investigation into Biden.  For the Republicans in the Senate, claiming only circumstantial evidence of Presidential misconduct, it’s a “nail in the coffin”.

The Drip of Truth

They cannot hear Bolton testify in the Senate, without being forced to acknowledge the President’s offenses.  And Bolton wants his say, and his profit.  The American people will hear him whether he testifies in the Senate or not.  And that will leave the Republicans caught outright in their cover-up of the President’s actions.

And if Bolton weren’t enough, we get to hear directly from the President, telling Parnas and Fruman that he will “take out” Ambassador Yovanovitch.  Why Fruman recorded an hour and more of a dinner party it’s difficult to say, but we can listen to it all today, even if the Senate Republicans will not.

The real story will keep coming out, drip by drip.  Before the conventions, perhaps even before the end of the primaries, all America will know exactly what President Trump did.  We will likely find that the House Managers were right, and that McConnell and his comrades willfully allowed a rogue Presidency.

Like the Greek Gods, the electorate will determine the fate, not only of President Trump, but also of the Republican Party as a whole.  While the Republicans may control the moment in the Senate, the power of facts will ultimately be revealed.  Let’s hope the voters will show the wisdom of Olympians.

It Snowed Last Night

In the classic movie about the Watergate era, All the President’s Men, reporters Bob Woodward and Carl Bernstein discuss the dilemma of “proof”.  Their argument:  if you go to bed and there’s no snow on the ground, and you wake up and there’s snow on the ground, can you factually say it snowed in the night?  Or is it just circumstantial evidence?  Can it be reported in the paper, or does there need to be a first-hand witness to the snowfall?

The Trial

We are entering the second week of the Trial of Donald John Trump, President of the United States.  The first day, and night, and part of the next morning of the trial were consumed with political wrangling.  Democratic Senators wanted to hear witnesses and subpoena evidence, Republican Senators voted item after item down, putting off that decision until after the cases were presented.  

The House Managers, what would be the “prosecutors” of the case in a criminal court, took three days to present an exhaustive case against the President.  Their overarching theme:  the President used the power of his office, the structures of the government, and the money appropriated by Congress to further his own political goals.  He not only did it before, but he was still doing it now, and there was no reason to believe he won’t do it again if he’s not stopped.

Even more, the President was willing to risk the national security of the United States to pursue his own personal political goals.  He was willing to abandon our allies, and give aid and support to our enemies.  Without using the word, the House Managers raised the specter of treasonous behavior.

Stonewall Defense

But there is an unavoidable flaw in the House Managers’ presentation.  No matter how many facts they marshal, no matter how eloquent their appeals to justice and fairness, no matter the mountains of “snow” they find on the ground.  They don’t have the “direct” connection.

President Trump has mounted the ultimate “stonewall” defense.  He has, in an unprecedented act, ordered the entire Executive Branch to refuse cooperation with the House investigation.  The President ordered all witnesses to refuse to testify, to even appear in front of the investigators.  He has withheld every shred of paper evidence.  And he is getting away with it.

My Roy Cohn

The President’s apologists in the Senate default to the past impeachment of President Clinton, when the House sent over literal truckloads of evidence gathered by the four year Justice Department investigation led by Ken Starr.  They argue that the House didn’t do the “due diligence” required in an impeachment investigation, that the Democrats “don’t have it”.

Of course, that’s a specious argument.  This President, unlike Clinton, or Nixon, or even Reagan in the Iran-Contra investigation, has an iron-lock on the Justice Department.  His “Roy Cohn,” Attorney General Bill Barr, has not allowed the Justice Department to enter into the investigation.  In fact, it may well be that the Department is withholding pertinent information.  Recently revealed texts and phone calls from the case against Lev Parnas in the Southern District of New York further damn the President’s case, but were only released from Parnas’ attorney, held back for months by the Justice Department team.

So the key witnesses to this critical national crime, National Security Advisor Bolton, Chief of Staff Mulvaney, the executives at the Office of Management and Budget who held the money, all remain silent.  The House Managers are forced to build powerful bridges of evidence, but they fall one section short of completing the crossing.

The Jury

Speaker Pelosi argues that the criticality of the timing required the House to impeach.  She maintains the risk to the 2020 election posed by Trump’s actions required them to take the evidence they have and move on.  The Speaker could not allow the “stonewall” strategy and the co-opting of the Justice Department to cover-up the crimes.

The President’s attorneys are not presenting a case.  It is all about obfuscation, of clouding the facts with wild theories of Ukrainian attacks on the 2016 election, and Trump’s “deep concern” about corruption.  Their job is as “fig leaf weavers”.  They need to give just the smallest cover to the naked subservience of the Republican Senators.  And they will.

But the House effort is not in vain.  Early on, the House Managers recognized that the real jury in this trial is not the Senate, but the American people.  And while the “Fifth Avenue” Trump supporters remain at his back, the majority of Americans already get it.  

It snowed last night.

The Analogy

For only the third time in American history, the President of the United States is on trial in front of the Senate.  At stake: the Presidency itself.  Should a two-thirds majority find Donald John Trump guilty, he will be removed from office, and likely banned from running again.  

As the trial progresses we are hearing commentators and experts drawing analogies between the “impeachment trial” and more familiar criminal law.  While those analogies might be helpful in explaining some procedures, in the end the two are not the same at all.

We’ve Impeached

Impeachment is already over.  Donald Trump is an “impeached” President, joining the list of Andrew Johnson and Bill Clinton.  Impeachment was the House of Representatives bringing charges for trial in front of the Senate.  It is analogous to what an indictment does in the criminal process.  And, much like a criminal indictment, there are few “due process” protections for the “defendant”.

That reality belies the complaints of the President, demanding representation and bemoaning the unfairness of things.  The President is now getting his rights: they’re coming up next week when his “dream team” gets three uninterrupted days on the floor of the Senate.  And besides, you can only hope that if you are investigated for a criminal indictment, that almost half of the investigators are your friends and supporters, like Jim Jordan, Doug Collins, and the rest (though I’d rather have friends who actually tried to influence the outcome rather than just disrupt it).

It’s Not a Crime

And the “trial” itself, though it has the trappings of a court drama, is really very different.  First of all, there is a judge, the Chief Justice of the Supreme Court; but he has little influence over the proceedings.  The Senators are both judges and jurors: a simple majority determines the rules of the proceeding.  The usual fairness we would expect in a trial, hearing witnesses and seeing evidence, are not a given.  They are a “grant” of the majority.

The trial from impeachment is rather a mix of legislature, criminal law and civil law.  There is no “standard” of guilt, such as the “beyond a reasonable doubt” criminal bar, or even the “preponderance of the evidence” of a civil case.  The Senator/Jurors get to not only decide the facts of what happened, but whether those facts violate the Constitution, and whether those violations are so egregious that the President should be removed.  As jurors they determine the facts, as judges they evaluate the law. 

But removal from office (and baring from future office) is not a criminal penalty, and the Trial from Impeachment is not a criminal case.  The rights we assume in the criminal system are not enforced.  If the President is removed for criminal reasons, then the he would get criminal rights in a criminal court, after he is out of office.  

There are none of the Constitutionally mandated legal criminal protections that we are so used to.  Certainly the President could refuse to present evidence and testimony, “taking the Fifth” so to speak.  But unlike criminal action, the Senator/Jurors are allowed to infer guilt from his failure.   And the Constitution does not require a particular level of “guilt”.  If two-thirds believe the President should be removed, he is.

High Crimes

The term “high crime” is a “term of art” as used in the United States Constitution.  A high crime to the Founding Fathers, was a crime against the state, the Constitution itself, not a “big” crime or felony as we think of in criminal law today.  High crimes are acts against the State, but not necessarily against statutory criminal law.  

The current 1st Article of Impeachment is for Abuse of Power, a term that is a “high crime” but not analogous to any individual Federal statute.  Under “abuse of power” there are contained various Federal crimes: misuse of public funds, violation of the impoundment act, offering bribes to foreign officials, encouraging foreign intervention in US elections.  But those are all “common” crimes, it is only when committed together by the President that they become a  “high” crime, a crime against the Constitution.

And the 2nd Article of Impeachment, obstruction of Congress, is wholly outside the Federal Criminal Statutes.  The “high” crime is in preventing Congress from exercising its Constitutional Article I powers of oversight. The President claims a flawed theory of total blanket Executive immunity. He has completely refused all Congressional requests for information.  It is a Constitutional question, to be decided above the level of mere Federal law.

Clock and a Calendar

The Republican Congressman from Georgia, Doug Collins, made a huge fuss about the House Democrats rush to impeachment.  He didn’t understand the hurry, and kept saying that “…a clock and a calendar” drove them, as if that was some insult.

He wasn’t wrong, but not for the reason he thought.  Democrats did feel the pressure of time in the impeachment action.  The President, through his actions in Ukraine, made it clear that he would ask for and accept foreign aid to help him win election in 2020.  Those elections are now mere months away. To prevent the President from cheating, something had to be done. 

The “clock and the calendar” are still running.  This President began the Ukraine crisis literally the day after he was “cleared” by the Mueller Report.  Who knows what will happen the day after this trial is over. 

Perhaps Impeachment and Trial will serve as a check on his future actions, even if he’s not removed from office.  Perhaps it will not. If the Senate fails to be remove him, we will find out soon enough.

Voter ID Laws

This is part of a series about ongoing political issues called “The Briefing Book.”

Driver’s License

 I went to the Bureau of Motor Vehicles the other day, to get a new driver’s license.  In Pataskala, Ohio, that’s not such a big deal.  The BMV is located in the old Post Office building by the railroad tracks in the center of town, about a half a mile from the house.  If you go at the end or beginning of the month you might have to wait for a while, but if you hit the middle there’s not such a big line. 

It’s set up like a deli.  There’s the “number” machine, where you take one, and a series of folding chairs where you can wait it out.  You usually find someone that you know in line to have a conversation with.   This time, it was the Russian woman who works at Kroger, and a kid I suspended from school a dozen years ago.

When you get to the counter, the worker there rapidly goes through the list of items you need to get your license or ID.  If you get the one that’s not acceptable for airlines and such, it used to be your old ID is enough.   Now with all the added security, or if it’s your first ID (let’s see, for me that was my first passport at three years old), they require:

  • Birth Certificate – with original seal
  • Social Security Card (or SSA printout)
  • A document showing Ohio Residency
    • Current Insurance Bill
    • Current Utility Bill,
  • And $10.

Social Bias

There’s a story teacher’s use to explain the concept of “social bias” in testing.  It’s a math problem:  

Joey mows grass, and he can cut three houses in two hours.  Unfortunately he ran out of gas, and was delayed by two hours.  He has six houses left to finish before it rains, how long will it take?

For kids in the suburbs there are really only two answers to the question.  The first, he’ll need another four hours to get the grass cut.  The second, it doesn’t matter, because he doesn’t have any gas.

But for kids growing up in the city, where the backyards are asphalt and mowing grass isn’t a thing kids do, this question sounds like:

Arthur was participating in the South Bay Regatta.  His ketch was caught crosswind while tacking across the sound, and lost sail.  How will Arthur return his ketch to the dock?

If you don’t know what a Regatta, a bay, a dock or a ketch is, you won’t be able to answer the question.  A city kid may not have ever seen a push mower, not had to ever buy gasoline, nor seen six houses with lawns to be mowed.  Need another example:  ask a suburban kid what a “transfer” is.  Odds are, they won’t have a clue. 

Now on Facebook

It’s driven on social media today. “Democrats want open borders, and Democrats are against Voter ID, so Democrats must want illegal immigrants to vote,” the memes say in one way or another.  And for some of those living here in Pataskala or in other suburbs, it seems right.  Getting an ID is easy, why would anyone be against requiring having an ID to vote?  After all, we need ID for so many other transactions in life, voting shouldn’t be an issue.

But it’s a lot like trying to explain the whole regatta thing.  Either you know it and understand it, or you don’t.  To suburban America it’s difficult to understand how getting an ID is a big deal.

Your Papers Please

Let’s just start with the paper work and  the whole “sealed” birth certificate thing.  In a world where apartments change rapidly, and stuff gets lost, how likely is it that you have an “original” or “sealed” birth certificate.  And if you don’t have one, who has the time to go to the County Courthouse, stand in line, and try to prove that you are you.

And then there’s the “residency” thing.  

Back at the founding of the “Republic,” the “right” to vote was only granted to property owners.  It was only later on that the ownership provisions were dropped, until today the term “citizen” is enough of a qualification.  But here’s the rub:  if you can’t prove “residency” you can’t register to vote.   It’s not just homeless people, it’s “squatters” that are living in situations that aren’t exactly “legal,” sub-letting or “crashing” at someone else’s place.  How can you get a utility or insurance bill in your name?

In America we say every citizen gets to vote.  But that’s not really true; the “paperwork” restricts voting to those who can legally prove residence.  And in a society where the divide between the “haves” and the “have not’s” is growing, the chasm between those that can vote and those that cannot is growing as well.

Right to Vote

Demand for Voter ID is a “social bias” kind of thing.  For those who have access to all of their paperwork, who have transportation, and who have $10 to spend on a government form:  it’s no big deal.  In short, if you live in the suburbs, have all “your papers” in order, a car to drive to the BMV, and a job that gets you time off at a time when the BMV is open, then getting an ID, or a License is easy.  Since those voters tend to be Republican, it should be no surprise that the GOP supports voter ID.

 Not everyone lives that way or has life is so “well ordered.”  But convenience, order, and financial stability are not “criteria” for earning the “right to vote”.  A right is a right, and democracy should make sure that citizens are enabled to vote, not restricted from it.

What About Bernie

The Trial

The Trial of Donald John Trump continues in the US Senate.  Last night’s session went deep into the early morning hours, as Democrats forced the Republican controlled Senate to vote down each piece of new evidence and each possible witness. Their strategy caught the President’s “Team” unprepared, their pants beyond even down; they forgot to bring them.  But they managed to come back with echoes of the House Republicans, even Jim Jordan’s four part litany made its appearance.  

Surely the Republican Senators were squirming through the night, both because of the votes now on the record, and the national contrast between the sharp and articulate House Managers and the buffoonish “Team”.  But technically that didn’t matter:  in the end, Mitch McConnell has blocked new evidence and witnesses, at least for the moment.  

We’ll probably get to do the whole thing over again in a couple of weeks.

Polls

Today’s latest polls for the early Democratic Primaries (courtesy of RealClearPolitics):

  • National – Biden 27, Sanders 20, Warren 19, Buttigieg 7, Bloomberg 5, everyone else ≤ 3 (1/18/20)
  • Iowa – Biden 24, Warren 18, Buttigieg 16, Sanders 14, Klobuchar 11, everyone else ≤ 4% (1/20/20)
  • New Hampshire – Sanders 16, Biden 15, Buttigieg 12, Warren 10, Yang 6, everyone else ≤5  (1/21/20)
  • South Carolina – Biden 36, Steyer 15, Sanders 14, Warren 10, everyone else  ≤ 4 (1/10/20).

Polls are a lot like a picture of a scene taken from a car speeding down the interstate.  For a split second, the moment is captured forever “on film”.  What happens the next moment, or hour, may completely change the story.  But you have the snapshot.

Joe Biden

So looking at the “snapshots” above, Joe Biden seems to be in a good position. He is strongly ahead in the national poll.  And in the more significant local polls, Joe is somewhat ahead in Iowa, within a percentage of New Hampshire, and outdistancing the field in South Carolina.

And yet, Democrats are not at all sure about banking the future on the former Vice President.  In part, that’s because they feel one “outstanding gaffe” from Biden himself changing the entire scenario.  He’s made a political career of those gaffes, and every time he speaks, we are on the cusp of another (Biden’s Gaffes through history).  

Biden may be the Democratic “lowest common denominator” that all sides can get to, and he may be the surest chance of beating Donald Trump in November.   But he has to keep it together, and he needs to gain support from all wings of the Democratic Party.

Winds of Change

So the Democratic nomination is not “wrapped” up.  There is a strong force on the “left” wing of the Party, Democrats who want a sea change in America’s economy and corporate structures.  And they are split between two candidates:  Elizabeth Warren and Bernie Sanders.  

For the purest in the Social Democratic set, Bernie Sanders is the gold standard.  He has led the cause for more than thirty years.  He stood so long for his independent brand of “Democrat-ism” that he is the icon, the symbol of radical change.  Elizabeth Warren grew under his shade and protection.   Her campaign must seem a bit more than “ungrateful” to Bernie’s supporters.  They must feel that it’s Bernie’s turn.

There is a simple calculation that makes Warren’s candidacy even more difficult for Bernie’s supporters to swallow.  The math is pretty simple, subtract Warren from the race and add her votes to Sanders.  It puts him ahead nationally, and everywhere else except for South Carolina.  Warren dilutes the field, leaving it open for Biden to sweep in and take over.  

This is politics, not tidily-winks, and all things are fair in politics and war.  Warren didn’t have to get anyone’s permission to run for President, and her supporters would say that it’s Bernie that is diluting the race.  And we now know that Warren and Sanders had serious discussions about this problem two years ago. Part of that discussion certainly had to be how to get one of them to NOT run.  Whether the question of a woman running came up, and what either said about that isn’t the point, though that issue is now a serious concern on the campaign trail.  

Clinton’s Attack

At least one person sees a path to the nomination for Bernie Sanders.  Hillary Clinton has weighed in on the 2020 election campaign, using a “Hulu Documentary” to attack him.  Unable to run herself, she is loath to allow Sanders the nomination.  There are probably several reasons for this.  There was no love lost between Sanders and Clinton in 2016, and her mathematical calculations probably conclude that Sanders cost her the Presidency.  Secretary Clinton may simply be getting paybacks.

But there are two other factors that might be influencing the former candidate.  One is the close ties the Clinton’s have to Wall Street.  The term “Republican lite” was defined for Bill Clinton’s Presidency, and if nothing else, Sanders presents a threat to America’s investment houses.

Snapshots

Or, like many moderate Democrats, Hillary may have reached the conclusion that Sanders might be able to win the nomination, but could never win the Presidency.  Even against an impeachment-wounded Donald Trump, Sanders would be painted as a “radical, socialist, communist,” an image that could be fatal.  Unlike Clinton herself, or Biden, or other seasoned candidates; no one has gone “full negative” against Bernie Sanders.  Democrats haven’t, because they needed Sanders’ support and his supporters, just as Clinton did in 2016.  So no one has even tipped over “the rock” of Sander’s career as a “millionaire socialist”.

So today, as we stand at the edge of the Democratic primaries, we wait.  Wait to see if the Bernie supporters have really found a font of political support in the young.  Wait to see if somehow Warren/Sanders becomes one movement.  And, we still wait for Joe Biden to “drop the ball” once again.  

Elections are snapshots too.  Few Democrats in America believed that the Trump snapshot taken in November of 2016 could happen.  But it did; now Democrats are haunted by the possibility it could happen again. And, unlike polls, those election snapshots have consequences.

Eyes On Us

Today, a day that will live on in American history, the third removal trial of an American President begins. However you feel about Donald Trump, it is a momentous time.

Many will say this is “the tipping point” in the future of our nation. Will we either be a nation of narcissism or compassion, World responsibility or selfishness, on the arc for justice, or against the curve. It is time to decide.

The tipping point is not just today, or even what ever happens in this trial. The “point” is much wider, extending to November and America’s choice for our future.

But make no mistake about it: we are at that point in history. We, the People, have the opportunity and obligation to choose what that future will be. The trial in the Senate may not give us the answer to that choice, but 2020 will.

It is hard to imagine a more critical turning point. Perhaps the election of 1800, when the Federalists grudgingly left the government in the lawfully elected hands of their bitter ideological rivals, the Jeffersonians.

Trump, if he understood history, could draw a contrast with the election of 2016, demanding that the Democrats did not fulfill the Federalist precedent and allow him to govern. He’s not altogether wrong.

But their is a critical difference between the time when John and Abigail Adams got in the carriage and left Washington before Jefferson was sworn in, and when the Obamas gracefully lifted off the Capitol lawn in a helicopter, no longer Marine One. While Adam’s barely lost to Jefferson by seven votes in the Electoral College, Jefferson carried the national popular vote by over 60%. American government may have been narrowly divided, but the people were not.

In 2016 Trump won the electoral college by a narrow but comfortable margin. But the People’s vote went for his opponent. That does not mean his election was illegitimate – but it did demand some recognition of the majority’s thwarted will.

But from the Inauguration Day three years ago, Mr. Trump willfully delegitimatized his opposition. “It was the greatest election landslide in history,” “the largest inaugural crowd ever,” and the “votes against him the fraudulent and illegal,” were the opening gambits in his campaign of “America First”.

To Mr. Trump, the winner, no matter how narrow or conflicted, got the spoils. And so he began a campaign of altering America’s government and values. Now, three years in, we have a clear vision of what that campaign will yield.

What will Trump’s America look like in 2021? Make no mistake, if you are rich, you are likely to get richer. If you profit from polluting our air, water and land; your profits will expand. If you are a white man aggrieved at the loss of prior privilege, you may find your advantages reinstated.

And if you want your personal religious beliefs enforced as law in women’s health, education, and as American societal norms, than “four more years” is your goal.

All of that, no matter where you politically stand, might be the outcome of a fair election. The loser could get in their carriage or helicopter and fly away. But the Trial today isn’t about any of that.

Today’s trial is about the President and his henchmen trying to alter the very fabric of Constitutional government. George Washington was most aware of the powers he could not use, and the actions he should not take. As our first President, unanimously chosen by the People and the Electors, he could have done most anything. But he recognized that his most important role wasn’t just to lead, but to teach. It is little surprise that the words precedent and President are confused; Washington was most aware of presiding so as not to abuse his authority.

To quote the musical “Hamilton,” “History had its eyes on him.” And he governed with that in mind, even teaching us, “How to Say Goodbye.”

Now, 232 years later, we have a President who ignores Washington’s precedents and obligations for the sake of power and control. For that, not the results of 2016, he is being tried before the Senate today.

What we do here, and November, will unalterably change the world.

History has its eyes on us.

The Coverup Begins

The trial of Donald John Trump, President of the United States, begins Tuesday. All 100 members of the Senate have been sworn in, pledging to be fair and impartial in the matter before them.

That may last through Chief Justice Roberts’ formal call to order. But after that —all bets are off.

Majority Leader Mitch McConnell’s goal is to have the trial as over as quickly as possible with an overwhelming “exoneration” for the President. Anything that gets in the way of that goal, including the truth, is expendable.

McConnell is even considering sandwiching 48 hours of presentations, split evenly between the House Managers and The President’s defense team, into four days. That’s twelve hours a day of speeches. That might seem a laudable goal: Senators working hard sitting in silent “jurydom” from 1 pm to 1 am. But it’s not about work – it’s about burying the discussion from the American people.

A more traditional schedule, 1 pm to 9 pm for six days would allow millions more citizens to see what’s going on. Sure some will make the midnight show anyway – but most would be left out. For McConnell that’s all to the good.

Less public exposure means less public pressure on his vulnerable members: Gardner of Colorado, Collins of Maine, McSally from Arizona. And even less pressure for McConnell from Kentucky, who is facing the strongest opponent in his career, and one of the lowest approval ratings in the country.

For the House Managers public pressure is what it’s all about. Public pressure on wavering Republicans to consider hearing witnesses: John Bolton, Mick Mulvaney and the OMB executives who were told to hold the Ukraine money. Those witnesses would allow the American people to hear directly what the President did. Even if it doesn’t convince twenty Republican Senators to remove, the number needed to crossover – it will give the American citizens more information for their vote in November.

But McConnell’s goal is to hear less, see less, and wrap up the trial as soon as possible.

And don’t hang your hopes on John Roberts for a fair trial. He is dedicated to procedural fairness — but he’s also dedicated to his mentor, Bill Rehnquist’s words from when he presided at the Clinton impeachment: “I did very little and I did it very well.”

Roberts will certainly stay in his lane.

So it’s process tomorrow, and the House Managers for the next two or three days. Then the President’s team gets the same amount.

So sometime next week we will reach the crisis: can the House Managers call witnesses? If so, will the President’s team? And if witnesses are allowed will the President try to blanket them with “executive privilege”? Will the Chief Justice and Senate allow him to get away with it?

Odds are we’ll never get to hear witnesses, or at least that’s what the majority of Senate Republicans want us to believe. If they have their way, the coverup will begin.

Circular Illogic

The President announced his “dream team” to defend him in the Senate.  Their job is to convince Senators that the President did not commit a crime.  If that doesn’t work, then whatever crime he did commit, it doesn’t fit the Constitutional definition of “treason, bribery, or high crimes and misdemeanors”.  And if all that fails, then the team will try to show that the process was so flawed, that even a President who abused his power should not be removed.

Judge Starr

It’s “have it my way” anyway you look at it.  Two stellar attorneys lead the “team”.  First is Ken Starr, the man who left the bench to serve as Solicitor General under President Bush (41).  He then became Justice Department Special Counsel, and began the investigations of Bill and Hillary Clinton soon after they entered the White House.  Starr trundled through their financial, social, and finally personal lives, and after four years, finally hit pay dirt.  Big Bill had a sexual relationship with “that woman” Monica Lewinsky, a twenty-one year old .

It’s About Sex  

It was a national scandal, and Clinton compounded it by testifying in a court-ordered deposition. He tried to split legal hairs about the nature of oral sex.  It didn’t work, and a Court found he committed perjury.  And for that, Starr convinced Congress to impeach him.  The Senate never came close to removing him from office.

Starr’s career continued to representation of billionaire Jeffrey Epstein in his 2006 sex scandal with underage girls in Florida.  Starr helped Epstein get a “sweetheart deal” with South Florida US Attorney Alexander Acosta.  Afterwards, Acosta became Secretary of Labor under the Trump Administration, but resigned when the Epstein scandal broke out once again less than a year ago.  Epstein, of course, was re-arrested and imprisoned awaiting trial, where he died under questionable circumstances.   

After a stop as Dean of Pepperdine Law School, Starr landed in Waco, Texas, for a six-year stint as President of Baylor University.  Sexual abuse came back to haunt him once again. Members of the football team and a fraternity president were convicted of multiple sexual assaults.  The coach and athletic department tried to coverup the crimes. In the end Starr lost his job, along with the coach and athletic director.

So now he’s got plenty of time to represent the President.

Professor Dershowitz

Then there’s the redoubtable professor of Constitutional law from Harvard, Alan Dershowitz.  The Professor has spent a career defending the infamous: from Claus von Bulow’s murder case to the OJ Simpson “dream team”.   He is currently involved in defending movie producer Harvey Weinstein in his sexual abuse trial. Dershowitz claims to be a life-long liberal Democrat, and says he voted for Hillary Clinton.  He also has been a die-hard supporter of Zionism and Israel, which might explain some of his ongoing defense of Donald Trump.  

Dershowitz was also on the 2006 Epstein team, and has been implicated in some of Epstein’s sexual improprieties.  Dershowitz claims his only sex was with his wife. His statement, that he was never was “out of his underwear,” is contested by multiple girls who claim that he was involved in “massage” activities and more.

Besides the Epstein connection, the Trump legal team has one other strong bond:  commentating for Fox News.  Starr, Dershowitz, Trump personal attorney Jay Sekulow, former Florida Attorney General Pam Biondi, and Starr’s successor as Special Counsel Robert Ray are all part of the team, and all passed the apparent “try-outs” in their Fox News appearances. 

So what arguments can we anticipate from the Trump “Epstein/Fox News” Team?

Unitary Executive

From the beginning of the Trump Administration, Professor Dershowitz has taken a consistent view.  He advocates the Constitutional theory of the “unitary executive”, an argument that states that all actions of the executive are direct outgrowths of Presidential power.  The Professor argues that the President wouldn’t “investigate himself” and therefore the Justice Department has no jurisdiction over Presidential actions.  

Dershowitz saw the Mueller investigation as unconstitutional, and that the President had the authority to fire Mueller at any time for any reason.  His argument that “the President cannot obstruct himself” gives Mr. Trump total leeway to prevent any investigation of his administration’s actions.

In addition, Professor Dershowitz reads the US Constitution as giving the President near absolute powers in the area of foreign policy, thus making many of the accused actions in the Ukraine affair perhaps scandalous, but not illegal.  And finally, Dershowitz reads the impeachment powers in the Constitution as extremely limited to the strict reading of the words, “treason, bribery, and high crimes and misdemeanors”.  Since the President hasn’t been indicted or convicted of any Federal crimes, he cannot be impeached.

Federal Indictment

Judge Starr is likely to make his argument based on his work as Special Counsel.  He will claim that the House of Representatives exceeded their authority be opening the investigation of the President, a job he sees defined as a job for the Justice Department.  He will argue that the U-Haul truck load of evidence he passed to Congress in 1998 was that kind of investigation, and that the four month House Intelligence Committee inquiry is unacceptable.

So Starr will argue that unless the President is facing Federal Criminal charges, he cannot be impeached.  And Dershowitz will argue that the Justice Department cannot investigate or charge the President.  The sum of their position:  “heads I win, tails you lose”. 

Back to Law School

Others will argue that the House “process” denied the President due process rights.  And somewhere, someone, probably Jay Sekulow, will recite the famous Jim Jordan litany.  It has four stanzas:

  • The phone call between Trump and Zelenskiy was “perfect”
  • Zelenskiy has stated there was no pressure
  • There was on “quid pro quo” since Ukrainians didn’t know the money was held up
  • The money was eventually paid anyway.

It’s already been used in the “teams” official response to the Impeachment notice.

Another famous Harvard Constitutional Professor, Lawrence Tribe, describes the Dershowitz position as “alternate law” (as opposed to “alternate facts”).  Adam Schiff is likely to make the same case on the floor of the Senate.

It probably won’t make for great television for most Americans.  Not too many folks are fascinated with explanations and legal interpretations of the US Constitution.  But as someone who enjoyed sitting in law school classes (no, I didn’t get my degree) I am clearing my schedule. 

This week, I’m going back to school!

Talking to Lev

If you read my posts enough, you know that I try not to let The Rachel Maddow Show drive my topics too much.  I am a constant viewer, and Rachel does an outstanding job of prepping and analyzing issues, problems, and events.  She always gets the viewer thinking, and I don’t want to try to compete with all of that.  

But her interview of Lev Parnas on Wednesday and Thursday nights is too good to pass up.

Transmission 

Wednesday, House Speaker Nancy Pelosi sent the two Articles of Impeachment to the Senate for trial.  Pelosi created a great deal of controversy. She held the Articles after their passage in the House on December 19th.  The actually “transmission” of those Articles via hand delivery to the Senate Chamber took place on January 15th.  The Congress was out of session, gone to Christmas, Hanukkah or whatever, from December 20th to January 6th. That didn’t seem to matter to Pelosi’s critics.

But the delay worked in the Speaker’s favor.  While they were out, key witness John Bolton signaled that he would be willing to testify.  Emails from the Office of Management of Budget and the Defense Department (released not to the House Committees but to the media through a Freedom of Information Act request) further confirmed the President’s orders to withhold money from Ukraine.  And this week, the General Accounting Office ruled that holding the Ukraine funds was against the law.

  In addition, the Courts ordered the Justice Department to return documents and cell phones to Lev Parnas. He was the “button man” in the Rudy Giuliani pressure campaign in Ukraine.  Parnas and his attorney then turned that information over to the House Intelligence Committee, who released a lot of it to the public.  It also went into the package of evidence going to the Senate.

New Evidence

That evidence included a letter from Giuliani to newly elected Ukrainian President Zelenskiy. That letter confirmed that Giuliani was acting as private counsel to Donald Trump, President of the United States.  There were also notes from phone calls, confirming that “the deal” was to get Zelenskiy to investigate the Bidens.

Parnas also had a series of recovered text messages confirming much of his work in Ukraine.  There were also disturbing texts from Republican Congressional candidate Robert Hyde. They implied that Hyde was following US Ambassador Yovanovitch and even hinting that “…if you want her out” it could be arranged.

Lev Speaks

But the big reveal came in Rachel’s interview.  Parnas laid out the following points.

  1. From the beginning Giuliani’s plan was to get the Ukrainian government to investigate the Bidens, not Ukrainian corruption. And President Trump knew every move.
  2. Giuliani and Parnas were empowered to speak for the President of the United States.
  3. When Ambassador Sondland testified, “…everybody was in the loop,” that included not just Trump and Mulvaney, but Bolton and Vice President Pence as well.
  4. The Giuliani “team” included not just Parnas and Fruman, but also “Fox Attorneys” Joe DiGenova and his wife Victoria Toensing. Congressman Devin Nunes and his staff, and Attorney General Bill Barr were involved as well.
  5. One of their goals was to strike a deal with then Ukrainian Prosecutor Lutsenko.  He wanted Ambassador Yovanovitch removed in exchange for dirt on Biden.  Yovanovitch was removed.
  6. That when Lutsenko failed to give them the dirt and was removed by Zelenskiy, they needed to cut a new “deal”.
  7. Money for Ukrainian defense and perhaps even more importantly US recognition was what Ukraine wanted.  That was the “quid” for the Biden investigation “quo”, and everybody on the team and in the loop, knew it.
  8. That Parnas was trying to cut a deal with oligarch Dimitry Firtash.   US charges against Firtash would be dropped, if Firtash would help get “Biden Dirt”. And everyone, DiGenova, Toensing, and Parnas would make a whole lot of money in the process.

Ignore at Your Peril

It’s pretty damning testimony – and information that the Republican Senate doesn’t seem to want to hear.  There are some caveats however.  Parnas is accused of a felony, illegal campaign contributions. These are  similar to the charges that put Trump attorney Michael Cohen in prison for three years.  That raises the bar on questions about his credibility.  And some of his accusations, like a lot of the House Intelligence Committee testimony, is second hand. “Rudy said the President said” and “Victoria and Joe said Attorney General Barr said”; are definitely one step away from first hand information.

But it all fills in gaps in an overall tale. The President looked for dirt on Joe Biden and used the powers of the Presidency to try to get it.  The Senate needs to hear this obvious story.  If they don’t, then they are like little kids, sticking fingers in their ears and yelling “♫ La, La, La, La, La ♫” so they can’t hear the truth.  

There will be a price to pay for such intentional ignorance.  If it doesn’t happen in the hallowed Senate hall, then it may well happen at the ballot box on November 3rd.

Elections and Impeachment

Tuesday and Wednesday have been stark contrasts in the possible future of the United States of America.  Tuesday night, we heard a spirited debate by six of the remaining candidates for the Democratic Presidential nomination.  Wednesday, we saw the solemn procession of the House Managers as they marched the formal Articles of Impeachment of Donald John Trump, President of the United States, across the Capitol to the Senate.

Presidential Debate

The debate was spirited, with even billionaire Tom Steyer getting involved in the discussion.  While the general outlines on issues for all the Democrats are similar, Tuesday highlighted the differences.  In foreign policy the divide was over withdrawing all troops from Afghanistan and Iraq, or not.  In health insurance the choices were Medicare for All, soon or now; Medicare for some and private insurance for the rest; or Medicare stays the same with a public health option added on to an extended Obamacare, and private insurance.  Everyone gets covered and prescription prices go down.

And everyone wants to deal with the environment.  The difference in the discussion was how high a priority it must be.  My concern is that it seemed like a side-discussion, thrown in as part of the debate about President Trump’s new North American trade deal.  It didn’t have the legs to go out on its own, except with Tom Steyer.  You know, it should be Pete Buttigieg’s issue; he’s the only one of the six who will be around to deal with the effects.  Maybe he’s afraid the issue highlights his youth, as if being thirty-seven on a stage with a bunch of seventy year olds (sorry Senator Klobuchar, you’re not) isn’t clear enough. 

It’s not just splitting hairs:  it’s all-important stuff.  But no matter which Democratic candidate wins the nomination, we can be assured that we will reduce troops in the Middle East, expand health care to somehow include everyone, and push a panic button on climate change.    

Absent Voices

I will admit I missed some voices in the fray.  Cory Booker and Kamala Harris are gone from the competition.  It’s not just the absence of a black candidate in a Party that depends on the black vote: they brought dignity, strength, and differing views that “the six” can’t duplicate.  Andrew Yang and Michael Bennet, still running, did not qualify.  Yang brings a refreshing outsider view to the discussion, while Bennet offers a carefully thought out program of unifying the nation. 

Note:  I was surprised to see James Carville, architect of the Bill Clinton Presidential Campaign, come out and endorse Bennet.  Carville is no ideologue.  He works for winners, money, or both.  He’s always got an angle, and coming into what looks like a campaign on life support seems more than a surprise.  He knows a lot, so maybe we will find out what we don’t know about the Bennet Campaign. 

I can’t say I miss Marianne Williamson, though I’m sure Saturday Night Live will.  

Inside and Outside

And then there’s the “outlier,” Mike Bloomberg.  He can’t be in the debates; his billionaire self-financing won’t meet the qualifications.  But he’s out there, spending more money than anyone, even Trump himself.  He offers an even more moderate alternative to the Democratic base.  The good news is, whether he gets the nomination or not, he has committed his money to defeat Donald Trump.  So has Tom Steyer.

You can’t mention this week’s debates without at least giving a nod to the internecine battle of “the left” between Senators Sanders and Warren.  It’s nothing if not personal.  In 2018, Warren and Sanders had a private conversation about their running for President.  In the course of the conversation, Warren says Sanders said a woman couldn’t win.  

Now, less than a month before the Iowa caucuses and with Sanders ahead of Warren in the polls, the conversation has come up.  Sanders flat denies he made the statement, Warren says he did, then pivots to why women make better candidates.  After this last debate, they had a standoff on the debate stage where Warren told Sanders he called her a liar.  Well, he did.  I guess friendships can’t survive the crucible of Presidential politics.

Scoring the Future

The debate score:  Klobuchar sounded good and so did Buttigieg.  Warren and Sanders did fine other than the little tiff, but they don’t surprise anyone with anything different.  Biden did fine, though I would argue the bar has lowered for his performance.  But he passes on the “he’ll do” test, which seems to be enough.  Steyer still seems like the guest at the dinner that will go home afterwards.

So now it will be an “eternity” until the good Democrats of Iowa gather in school gyms and churches to walk around the room, find their candidate, and go through the arcane process of “caucusing”.  It’s an oddity of our democracy that such a small number of voters will have such an enormous impact on our choices.  

And who knows what they will be thinking.  Events overtake the best-laid plans of any candidate.  A Presidential impeachment trial, the third in the nation’s history, will begin next week.  The “Pelosi delay” strategy has already paid off.   Lev Parnas threw an entire tank of gasoline on the fire in his interview last night.  I don’t expect twenty Republicans in the Senate to vote for removal; in fact I’d be surprised if there are four who want witnesses.  But Democrats will hang a “rigged trial” around Republican necks in the election like those burning tires in South Africa.  And in this era, when modern history was last week and ancient history last month:  who knows what comes next?