Contempt of Congress

We sometimes hear that the Republican House voted to hold Obama’s Attorney General Eric Holder in contempt of Congress for refusing to turn over documents relating to a botched operation to get illegal guns off the street. Fast and furious was the stupid name of the bungled operation. The Democratic House also voted to hold Trump’s AG Bill Barr in contempt of Congress. Neither of these AGs were ultimately prosecuted, since the DOJ has a policy against bringing charges against a sitting AG (of course they do…). Even though Barr advised Trump to assert a blanket protective executive privilege (that doesn’t actually exist in the law) that would allow him to block all testimony and document production by all subpoenaed witnesses until the clock was run out (see Don McGahn) and the testimony became meaningless.

I learned that Holder had voluntarily appeared nine times in connection to the long probe into Fast and Furious. He spent hours answering questions, on nine different occasions. That’s how Republicans play — you keep the Benghazi tragedy in front of the American people in probe after probe. Contempt, clearly, can be employed for partisan ends. But what of the clear cut cases?

Trump told his January 6 co-conspirators to dummy up, refuse to obey the legal subpoenas of congress, citing the same fanciful Barr-created doctrine of absolute, perpetual protection against anything that could incriminate a (former) president. When Bannon told Congress to fuck off he had not even a fig leaf of an excuse for his refusal to appear, it was pure contempt. Bannon’s opinion is that the Democrats in Congress are illegitimate weaklings who will only prove his point about what a spineless group they are and you can hear him hammer this point home day after day on his podcast The War Room.

The appeal of federal Judge Tanya Chutkan’s ruling that the former president may not assert executive privilege, if the sitting president does not assert it, and particularly if Congress has a compelling need for the testimony and documents, will be heard on Tuesday. Compare this quick hearing to the two year tap dance McGahn and his legal team performed to stall his testimony until it was irrelevant. Yeah, in the end he quietly admitted Trump had ordered him to obstruct justice by firing Mueller, and when he refused, to create a false document stating that Trump had not ordered him to do so, but Trump had already been robbed of his rightful reelection by the time McGahn admitted his former boss had instructed him to obstruct justice, and then lie about it, behind closed doors and not under oath.

Executive privilege may be invoked by members of the administration, the purpose of the privilege is to shield legitimate deliberations about lawful decisions the president makes every day, so there is an argument that it may apply to a then-member of the DOJ like American Eichmann Jeffrey Clark (as a defense against answering certain questions), or Tea Party extremist, January 6 co-conspirator Mark Meadows. Both were in the Trump administration, hard at work thinking outside the box during the Stop the Steal madness.

Bannon, however, had not been a member of the administration for several years, not since August 2017, prior to whipping up his audience with the Big Lie and later sitting in the war room/January 6 command center at the Willard Hotel. John Eastman was also not in the administration. Same goes for Rudy Giuliani, Bernard Kerik and several other right-wing luminaries who are poised to show their contempt of Congress, in an act of supreme loyalty to their leader.

Rule of law? Nation of laws? No privilege, not executive privilege, not attorney-client privilege may be successfully invoked to cover up planned illegal activities. There is no privilege that shields participants in a criminal conspiracy. We will see shortly what the appellate panel has to say about Trump’s latest frivolous attempt to weaponize the delay in the legal system to run out the clock, obstruct justice, and protect himself from criminal prosecution. Very exciting.

Words worth heeding

Stephen Fry, well-known author and wit, delivers a short, powerful statement about how dehumanizing language is always used to organize and justify hatred and violence against a targeted group. This language of hate precedes every atrocity.

He gave these remarks at least ten years ago. Well worth considering, as the war on “traitors” continues to escalate

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In a more perfect union — imagining Rittenhouse public service/truth & reconciliation

Like everything else today, the acquittal of a white teenager who brought an assault rifle to a tense, racially-charged confrontation and wound up killing two people, and dismembering another, while arguably in fear for his life, is a fiercely tribal moment seen through reflexively tribal lenses. Though the injustice on trial in this particular case appears to many obscene, we would all benefit from taking a breath about this particular flashpoint of the long building war between the tribes, before logging it as merely another example of the other tribe’s intractability.

It is undeniably sickening that a white kid who goes to an understandably tense racial justice protest (Kenosha cop would face no charges for shooting an unarmed citizen seven times, four times in the back) with an AR-15, a weapon designed for mass killing in a war zone, (a gun perfectly legal to openly carry under Wisconsin law, if he’d been a year older) and winds up killing two people and destroying the arm of a third, is not accountable to the law in any way, tried in a state that also has a George Zimmerman law. It is an outrage that people like him are free, in many states, to do exactly what Rittenhouse did, fund raise off it and avoid legal consequences. Had he been Black, he would likely have been dead at the scene, a victim of “law and order”. Undeniable. That an unhinged president immediately hailed Rittenhouse as a hero, and the little working class killer’s $2,000,000 bond was quickly raised and paid, and he had an OJ-like team of lawyers who rehearsed and war-gamed his defense with consultants and jury experts, who put him through his paces before putting him on the stand — this white high school kid enjoyed privileges usually reserved for only the wealthiest criminal defendantsan outrageous pouring of salt in the wounds. Compare the outcome to someone who’d done exactly what Rittenhouse did, who hadn’t been able to post bail, had spent a year and a half locked up in prison and was represented by an overworked public defender. There’d be a plea deal and a sentence of years in prison, there is virtually never a trial in the case of someone unable to post bond and hire the best legal team a mountain of money can buy.

There is much to be legitimately outraged about, but there is also a point that has been mostly sliding by — under Wisconsin law, and based on the evidence the jury saw during the trial, their verdict was what the (unjust, racially biased) law provided for.

If we put the tribal lens aside for a moment, (which is a mighty task today, see, for example, the rest of this sentence) we can see that this case is a reflection of the larger injustice in courts bound by laws written by the NRA. These laws are an outrage and a reason to fight to change these gun-crazed laws, but in this particular case there was one killer on trial, not the systemically unjust legal system. The problem with talking about a public trial is that most of us know few of the legal details and the case stands as easy code for everything else. I will attempt to break some of this into smaller parts and look at the verdict beyond the tribal POV.

The kid’s crying on the stand was either the perfectly understandable reaction of a young criminal defendant, under tremendous stress, on international television, facing decades in prison, possibly traumatized by what he’d done (not every kid who supports Trump is automatically a cold blooded killer), the clever act of a well-coached murderer, or some combination of those things.

Multiple things may be true at the same time. Our justice system is the opposite of colorblind — again, a Black AR-15 wielding shooter at that same time and place would likely have been killed by police on the spot, and the shooting justified, forget about any kind of trial by his peers, or anyone else. This pleasant faced white kid, a big fan of cops, was not molested by police after he shot three people and was allowed to leave the scene of the killings with the weapon that did the killing. That by itself is pretty fucking maddening.

The other day I reflexively referred to the biased judge in the case as a Ku Klux Klansman, based on a few seemingly racist comments and decisions he made during the trial, which was not fair of me. I have no way of knowing if Judge Schroeder is a bigot or not. Another way of seeing the clearly biased jurist, with the eyes of the world suddenly fixed on his every word, is as a sympathetic older man, suddenly far beyond his depth, who felt compassion for a kid, already villainized by half the country, facing the full force of the justice system as punishment for America’s original, never addressed sin of slavery and the racism that justified it.

As a frame, systemic racism, as reflected in countless legal proceedings, is impossible to ignore in this case, unless you pretend, as the right does, that systemic racism, like Critical Race Theory (illuminated brightly by the polarizing Rittenhouse case, where a white killer was extended privileges usually reserved for the wealthy and given a fair trial) is bullshit and that making laws banning “CRT will make it — and all claims of racism — go away.

Think of the close to 1,000 enraged white rioters, including armed white nationalist militia members, allowed, by the too-late deployed National Guard, to peacefully go home the evening of January 6th after the sacking of the Capitol, another in-your-face moment for peaceful racial justice protesters locked up immediately, wrapped in a police net five minutes after curfew (in New York City, mind you), or gassed, charged by officers on horseback and shot with rubber bullets on instruction of Bill Barr so the president could be photographed awkwardly brandishing a bible in front of a famous church.

There is another issue in this case, though, a much more straightforward strictly legal issue, which is hard to see in the glare of this moment. It is a much less satisfying way of looking at the case, but no less important.

In light of the evidence presented to the jury did the prosecution overcome Rittenhouse’s self-defense argument?

That is separate from everything else, and really the only relevant consideration in evaluating the justness of the actual verdict.

I heard an analysis of the trial by Glenn Greenwald yesterday, a guy who sometimes annoys me with what seems like a trollishly contrarian view, who made several excellent points, including the one immediately above. The slightly left-leaning side of corporate mass media has framed this trial as a trial of White Supremacy vs. the rest of us who can see the dangers these fearful haters pose — the kid had crossed state lines with an illegally-possessed assault rifle to provocatively confront protesters and rioters because he’s a racist, like many of Trump’s most vocal supporters. Right-wing mass media framed it as spineless liberal puppet prosecutors using an innocent kid who went to protect property in a town near where he lived, shops threatened by BLM violence, to prove a point about their politically correct “wokeness”.

Everyone had a strong opinion when Rittenhouse was acquitted. Few of us had followed the trial in detail, viewing it instead through the glimpses provided by opinionated pundits, in newspaper articles and on “social media”. Greenwald said he watched the whole trial, saw everything that was presented to the jury. Like most other Americans, and citizens all over the world, I saw only selected excerpts, always framed by the presenters. Who is in a better position to evaluate the fairness of the verdict?

The judge, Kenosha County Circuit Judge Bruce Schroeder, suddenly thrust into the national spotlight, may well have behaved like an asshole, I certainly saw several instances of him leaning over backwards to rule for the defense. In one instance he admitted he knew nothing about technology, but told the prosecutor it was his burden to prove the arguably self-evident proposition that enlarging things on a video screen is essentially the same as using a magnifying glass. The only person disputing that was the defense attorney trying to block introduction of the evidence, who also admitted he didn’t understand the technology or its “logarithms”. It was an asshole position for any judge to take — the two of us are uniquely ignorant about the issue so that is your problem, counselor.

But back to the facts and the law. To prove murder the prosecution must overcome a self-defense defense if it is raised. When you see the defense’s video that the jurors saw, the kid’s fear was understandable when you see that he was chased by at least one of the people he killed, a probably mentally ill man who clearly (and, to many, not unreasonably) wanted to stomp the shit out of Rittenhouse, if not kill him with his own assault rifle. You can say, as I would, that Rittenhouse had no business being there, provoked them by showing up with an AR-15, loaded and ready (and the lack of meaningful gun laws here is appalling), but what the prosecution had to prove beyond a reasonable doubt is that when he killed those men he was not actually in reasonable fear for his life.

The gun charge was dismissed because under a Wisconsin law, probably drafted by the NRA and passed with the help of ALEC (the Stand Your Ground folks), an AR-15 loaded with 30 rounds does not fit the strict and restrictive legal definition of a gun that a 17 year-old can be prosecuted for bringing to a volatile street confrontation. Bruce Shroeder may well be an asshole, even a klansman, but the law is the law and in this case there is no avenue to appeal, based on the law, the judge’s dismissal of the gun charges against the kid who came to a scene of violence armed to take on thirty people. The same goes for most of the rest of the judge’s asshole rulings. The problems are with the law itself, annoying as Shroeder’s thumb on the scale for the defense was.

Predictably, Greenwald has been attacked from the left for his conclusion that the jury’s verdict, based on the evidence presented, in light of Wisconsin law, was correct. It is hard, in our angry, moronic times, to make that kind of distinction when half the country treats the kid as a hero and the other half thinks life in prison is fair punishment for what the smug little Trumper did.

I was reading comments under Greenwald’s video, most of them praising him for his honesty and integrity. This comment caught my eye, and for the first time ever, I responded to a Youtube comment:

I wrote asking the guy if he had a source for this. It changes the narrative drmtically, if true. But the comment above, and my reply, are buried in a haystack of thousands of comments and I have been unable to find a reply anywhere. I was hoping for an email notice, but so far, nada. This guy’s comment, a narrative game changer if true, is the perfect illustration of the problem with relying on unsourced (and thus unverifiable) “facts” gleaned from the internet.

As I was walking last night, taking what used to be called a “constitutional”, I had a thought about how productive it would be if we could all take a step back from the reflexive tribal reactions, isolate some of the larger problems and discuss them on a deeper level of understanding. In spite of the seeming impossibility of doing this in a culture of monetized misinformation, it is the best shot we have as a society on the brink of another bloody civil war. I pictured us all living in a more perfect union, a place of actual discussions focused on the real problems and solving them, instead of the zero-sum, adversarial, strictly profit-driven gotcha society we live in.

I thought of the many lessons members of a more advanced society could take from something like the Rittenhouse trial. I imagined an opportunity for real cross-tribal insights. I pictured people like him, instead of being simply judged a murderer or a victim/hero, required to perform public service after his trial, maybe on a panel with Jacob Blake, the man in a wheelchair for life after taking seven police-justified bullets from a Kenosha policeman and Rittenhouse’s surviving victim.

It would be much more instructive than what we have now, this kid as a vicious murderer who went free or a totally vindicated celebrity of MAGA-world, already publicly courted by several of the most angry, provocative and extremist members of Congress, who have already offered Rittenouse jobs he is as unqualified for as they are for their own jobs.

Imagine an alternative reality where the young man is required to spend a certain number of hours communicating to the public what he learned from his experience. His public service would start with help from skilled mediators who could ensure he listened to victims of vigilante violence, and understood the point of view of those at the protest where he wound up shooting three people. He could reflect on what he may have learned from the whole ordeal, how it feels to actually end the lives of random strangers (suppose he really does have regular nightmares about it, instead of the expressed desire to shoot BLM protesters and the smug posing he did right after– would that be a step in the right direction in talking about fucking guns?). Think of the discussion this kid’s court-mandated public speaking could open, in a more perfect union, where everything is not immediately weaponized to threaten and kill the other side with.

This messianic daydream scenario would only work, of course, in a society where honest reflection was encouraged, where truth and reconciliation are valued, where people are seen as capable of learning, evolving and becoming wiser, instead of a ruthlessly profit-obsessed casino where the only move for the people forced to gamble there is doubling down until you’re out of chips.

Democracy on a respirator, but don’t despair, yet

If we are a nation of laws, and nobody here is above the law, then we can only save ourselves from the crisis we are in by the just application of law. The rule of law saved democracy during Trump’s baseless attempted litigation challenging the outcome of the 2020 presidential election, even judges appointed by Trump were required, by the law itself, to rule against a litigant who produced no evidence of wild conspiracy claims or who made baseless claims requiring the suspension of disbelief and the disregard of actual evidence in order to win. Including the obvious fact that many Republicans were voted into office across states on the same ballots that Trump lost and baselessly insisted were subjected to massive fraud and rigging by a bipartisan cabal of traitors and insurrectionists.

Law is a human construct, and far from perfect, but it is also the most perfect thing we have as citizens to preserve any kind of justice, as well as our form of representative democracy itself. If we have a law against conspiring to stop the functioning of government, which we do [1], it needs to be deployed against those who more and more openly believe, in the words a speechwriter wrote for Barry Goldwater, an extremist Republican candidate sixty years ahead of his time in terms of party politics:

“Extremism in defense of liberty is no vice. Moderation in pursuit of justice is no virtue.”

Goldwater, you will recall, was the far-right presidential candidate from Arizona who advocated nuking America’s enemies back to the stone age and lost virtually all fifty states in the 1964 election [2]. He is most famous today for the so-called Goldwater Rule [3], a policy made by the American Psychiatric Association, a voluntary membership organization, that states no therapist may venture a public opinion as to the mental and emotional fitness of a political candidate unless he or she has personally examined the person and the patient has consented to have psychiatric details disclosed to the public.

The Goldwater Rule is not a law, or a rule that is binding on anyone who is not a member of the APA, nonetheless, the media often treats it as a law binding on all psychiatrists, even in the face of a candidate or elected official posing a publicly observable imminent threat to our nation. The rule, which was “doubled down” on by the APA soon after Trump became president, has been cogently challenged by many American psychiatrists recently, most outspokenly Dr. Bandy Lee.

The Goldwater Rule, we are told, applies even when you have a president who publicly shows himself daily to be a petulant, churlish, childish, vindictive, paranoid, attention seeking, megalomaniacal, corrupt, punitive, bullying, illogical, incoherent, amoral, transactional, compulsive liar. Even if this leader deliberately stokes an infuriating lie and organizes a rally and march based on that lie, to inspire a fight to overturn the election he lost, on the day the government is officially taking the ceremonial last step in the peaceful transition of power, and he sends a violent mob down to the Capitol to stop it. The Goldwater Rule prevents any shrink from talking about any of that, in their capacity as a psychiatrist, unless the unhinged elected official himself consents to a session and then the disclosure of a clinical diagnosis. Anything beyond “man, woman, camera, TV” is protected by the Goldwater Rule. Of course, anyone as critical of an American president as I am in this paragraph is clearly suffering from what Germans once called “Hitler Derangement Syndrome”.

There’s no law against going on TV and simply lying about whatever you want. Sad but true, in very few cases can anyone be prosecuted for simply making shit up, no matter how ugly or how likely destructive, and braying about it to the public. There is, however, a law against conspiring to stop the government, which is what the “Stop the Steal” riot did for hours on January 6.

It is frustrating to many Americans that the Department of Justice is so slow and deliberate in regard to holding the organizers of the conspiracy that led to a direct attack on democracy accountable. There is not even any apparent movement in this direction, though DOJ investigations are supposed to be conducted secretly without fanfare. We’d like to see some sign!

The law often grinds on slowly. It seems impossible, for example, that the Fulton County DA has not yet indicted Trump for what appears to be a very clear violation of the Georgia law against trying to interfere with, or coerce others to interfere with, a certified election result. The last act of that concerted attempt to overturn the Georgia election results is a recording millions of Americans have heard, for fuck’s sake, during which Trump violated every subsection of the Georgia law. The theory, I suppose, is that when taking a shot at a dangerous predator, be sure that shot is carefully aimed and powerful enough to actually stop the creature.

The Watergate-related indictments took two years to happen. The January 6 indictments are apparently going to take a while longer to assemble airtight cases for, aggravating though that is while the brazen co-conspirators are freely talking their ugly talk and broadcasting it to their increasingly enraged followers on shows like Steve Bannon’s The War Room.

If those indictments don’t happen within a reasonable amount of time, certainly well in advance of the heavily gerrymandered 2022 election (and full restoration of the 1965 Voting Rights Act by passing the two House bills is also critical, CRITICAL), stick a fork in our democracy, boys and girls, we’ll have Speaker of the House Donald Trump and the immediate censure of every non-white Democrat and traitor Republican in the House. There will also be summary expulsions for enemies of the Speaker, and probably also televised public book burnings, the kinds of things that always precede even worse barbarity.

And, as for the rule of law, we’ll have plenty more proud, angry, armed vigilante boys like Kyle Rittenhouse, free to take illegally possessed assault rifles into combustible situations like an angry protest over the perfectly legal police shooting, seven times in the back, of an American citizen, and then get acquitted in a trial presided over by a seemingly unrepentant Ku Klux Klansman.

And remember, folks, there’s no law against being in the Ku Klux Klan, it’s that American judge’s first amendment right of association and puts him in good stead for a future career as a celebrity opiner for Rupert Murdoch, OANN or Newsmax.

The law to keep an eye on is the one below, 18 U.S. Code § 2384. And if Merrick Garland doesn’t bring some indictments under this law, of the people who were in that war room in the Willard Hotel on January 5th and 6th and the guy who stood to gain the most from the conspiracy, had his co-conspirator’s bills paid and spoke regularly with them during the riot, we all ought to get down on our knees and, in the words of XTC, while we’re down there, kiss our asses goodbye.

[1]

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

[2]

Johnson carried 44 states and the District of Columbia, which voted for the first time in this election. Goldwater won his home state and swept the states of the Deep South, most of which had not voted for a Republican presidential candidate since the end of Reconstruction in 1877. This was the last time that the Democratic Party won the white vote, although they came close in 1992.

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[3]

The Goldwater rule is Section 7 in the American Psychiatric Association’s Principles of Medical Ethics, which states that psychiatrists have a responsibility to participate in activities contributing to the improvement of the community and the betterment of public health, but they should not give a professional opinion about public figures whom they have not examined in person, and from whom they have not obtained consent to discuss their mental health in public statements. Wikipedia

Trump does not contest Judge Chutkan’s statement of facts

Trump’s lawyers immediately appealed Judge Chutkan’s recent executive privilege ruling that denied former president Trump’s demand that as former president (defeated only by fraud) that he is privileged to conceal all records of the lead up to January 6 and on the day itself. We’ll find out how that argument goes on November 30th. Judge Chutkan ruled that the public need for solid information about the planning and implementation of the January 6 MAGA riot, which violently stopped the constitutional duties of a joint session of Congress, coupled with the agreement between Congress and the Executive Branch that evidence needs to be seen, means that Biden’s waiver of Executive Privilege claims made by Trump is the last word on the matter. Trump insists he has a right, as the unindictable president at that time, to hide anything that could cause him irreparable harm. It is the same stance Trump, insister on iron-clad, global, lifetime non-disclosure agreements, has always taken about everything. It is a position that appeals to many Americans– you fucking fight them until you win, no matter what.

Although Judge Chutkan offers it as background, to put her decision in context, we should note that Trump’s lawyers are not able to contest any of the facts the judge, as finder of fact, provides in that section of her decision. The only “answer” to her reconstruction of events leading up to January 6 is by reframing everything so that the most important detail is the frame: in spite of everything, the election was stolen! What did you expect the rightful president to do, sit by while it was being stolen?! Chutkan does not even go into the almost hour of detailed lies Trump told that crowd about how the vote was stolen in state after state, to make them madder than hell, in the minutes leading up to the planned permit-free march down to the Capitol. Is this something that needs public attention? You be the judge:

While not material to the outcome, some factual background on the events leading up to and including January 6, 2021, offers context for the legal dispute here. In the months preceding the 2020 presidential election, Plaintiff declared that the only way he could lose would be if the election were “rigged.” See, e.g., Donald J. Trump, Speech at Republican National Convention Nomination Vote at 22:08 (Aug. 24, 2020) in C-SPAN, https://www.c-span.org/video/?475000- 103/president-trump-speaks-2020-republican-national-convention-vote.

In the months after losing the election, he repeatedly claimed that the election was rigged, stolen, and fraudulent. For example, in a December 2 speech, he alleged “tremendous voter fraud and irregularities” resulting from a late-night “massive dump” of votes. See President Donald J. Trump, Statement on 2020 Election Results at 0:39, 7:26 (Dec. 2, 2020) in C-SPAN, https://www.cspan.org/video/?506975-1/president-trump-statement-2020-election-results. He also claimed that certain votes were “counted in foreign countries,” that “millions of votes were cast illegally in the swing states alone,” and that it was “statistically impossible” he lost. Id. at 12:00, 14:22, 19:00.

After losing the election, Plaintiff and his supporters filed a plethora of unsuccessful lawsuits seeking to overturn the results. See, e.g., Current Litigation, AMERICAN BAR ASSOCIATION: STANDING COMMITTEE ON ELECTION LAW, Apr. 30, 2021, https://www.americanbar.org/groups/public_interest/election_law/litigation/.

The United States Supreme Court also denied numerous emergency applications aimed at overturning the results. Id. In response, Plaintiff tweeted that the Court was “totally incompetent and weak on the massive Election Fraud that took place in the 2020 Presidential Election.” Donald J. Trump (@realDonaldTrump), TWITTER (Dec. 26, 2020, 1:51 PM), https://www.presidency.ucsb.edu /documents/tweets-december-26-2020.

He continued his claim that “We won the Presidential Election, by a lot,” and implored Republicans to “FIGHT FOR IT. Don’t let them take it away.” Id. (Dec. 18, 2020, 2:14 PM), https://www.presidency.ucsb.edu/documents/tweets-december-18- 2020. A Joint Session of Congress was scheduled to convene on January 6, 2021, to count the electoral votes of the 2020 presidential election and to officially announce the elected President, as required by the Twelfth Amendment to the U.S. Constitution and the Electoral Count Act.

In the days leading up to January 6, Plaintiff began promoting a protest rally to take place hours before the Joint Session convened. On December 19, 2020, he tweeted “Statistically impossible to have lost the 2020 Election. Big protest in D.C. on January 6th. Be there, will be wild!” Donald J. Trump (@realDonaldTrump), TWITTER (December 19, 2020, 6:42am), https://www.presidency.ucsb.edu/documents/tweets-december-19-2020.

During a rally, he warned that “Democrats are trying to steal the White House . . . you can’t let that happen. You can’t let it happen,” and promised that “[w]e’re going to fight like hell, I’ll tell you right now.” See Donald J. Trump, Remarks at Georgia U.S. Senate Campaign Event at 8:40, 14:19 (Jan. 4, 2021) in Campaign 2020, C-SPAN, https://www.c-span.org/video/?507634-1/president-trumpcampaigns-republican-senate-candidates-georgia.

On January 6, Plaintiff spoke at the rally at the Ellipse, during which he repeated claims, rejected by numerous courts, that the election was “rigged” and “stolen”; urged then Vice President Pence, who was preparing to convene Congress to tally the electoral votes, “to do the right thing” by rejecting certain states’ electors and declining to certify the election for President Joseph R. Biden; and told protesters to “walk down to the Capitol” to “give them the kind of pride and boldness that they need to take back our country,” “we fight. We fight like hell. And if you don’t fight like hell, you’re not going to have a country anymore,” and “you’ll never take back our country with weakness.” See Donald J. Trump, Rally on Electoral College Vote Certification at 3:33:04, 3:33:36, 3:37:20, 3:47:02, 3:47:22, 4:42:26, 4:41:27 (Jan. 6, 2021) in Campaign 2020, C-SPAN, https://www.c-span.org/video/?507744-1/rally-electoral-collegevote-certification.

Shortly thereafter, the crowds surged from the rally, marched along Constitution Avenue, and commenced their siege of the Capitol. 

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The long moral arc of fucking history

One Sunday late afternoon, three months before my ninth birthday, I was sitting by myself in my parents’ bedroom, at the foot of their bed. I don’t know why I was there, perhaps watching their large TV. It would not explain my memory of hearing the news that Malcolm X had been shot dead in the Audubon Ballroom in Washington Heights from my father’s alarm clock radio. I knew what it meant right away, and it felt like a punch in my young stomach. It was not that long after the JFK assassination and not long before several more lone gunmen would kill other leaders like Martin Luther King, Jr. and Robert Kennedy.

I read today that two of the three men who’d been convicted and jailed — fifty-five years ago — for the killing of Malcolm X (who by then had renamed himself El Hadj Malik el Shabbaz) will be exonerated tomorrow, one posthumously. The FBI, NYPD and prosecutors had withheld evidence that would have likely prevented the conviction of each of the “murderers” who spent decades in prison. The one assassin who was caught at the scene confessed in court and said he didn’t know the other two guys, that they hadn’t been the other shooters. It turns out he wasn’t lying.

The New York Times reports:

A trove of F.B.I. documents included information that implicated other suspects and pointed away from Mr. Islam and Mr. Aziz. Prosecutors’ notes indicate they failed to disclose the presence of undercover officers in the ballroom at the time of the shooting. And Police Department files revealed that a reporter for The New York Daily News received a call the morning of the shooting indicating that Malcolm X would be murdered.

Investigators also interviewed a living witness, known only as J.M., who backed up Mr. Aziz’s alibi, further suggesting that he had not participated in the shooting but had been, as he said at the trial, at home nursing his wounded legs.

Altogether, the re-investigation found that had the new evidence been presented to a jury, it may well have led to acquittals. And Mr. Aziz, 83, who was released in 1985, and Mr. Islam, who was released in 1987 and died in 2009, would not have been compelled to spend decades fighting to clear their names. . .

. . . Representatives for the two exonerated men said that the moment meant a lot to Mr. Aziz, and to Mr. Islam’s family. But Mr. Shanies, one of the civil rights lawyers representing them, said their convictions had a “horrific, torturous and unconscionable” effect that cannot be undone.

The two men spent a combined 42 years in prison, with years in solitary confinement between them. They were held in some of New York’s worst maximum security prisons in the 1970s, a decade that bore witness to the Attica uprisings.

Mr. Aziz had six children at the time he was convicted; Mr. Islam had three. Both men saw their marriages fall apart and spent the primes of their lives behind bars.

Even after their release, they were understood as Malcolm X’s killers, affecting their ability to live openly in society.

“It affected them in every way you could possibly imagine, them and their families,” Mr. Shanies said.

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We learned, decades after the assassination of Martin Luther King, Jr., that the FBI had been secretly recording King in hotel rooms and had sent compromising materials to him along with at least one letter urging him to kill himself. That’s just the way it was in the USA in the 1950s and 1960s, and the two hundred or so years before that. Racism was out of control, American Blacks were organizing and fighting for civil rights (Malcolm rightly called them Human Rights) and even a nonviolent pastor was considered an enemy of the state by the guardians of American power, since he was seen as galvanizing a tremendous moral force.

It’s hard to untangle how fucked up all of this is, or to overstate that the final crime for which King was condemned to death was his sermon opposing the War in Vietnam (one year to the day before his murder) and his Poor People’s campaign (on behalf of all of America’s poor). Once you stray from fighting for the right to use the same water fountain as whites to criticizing the power structure of the country itself, it is probably time for you to be shot through the voice box by a lone gunman with a shady past.

I try to imagine what it’s like to be exonerated fifty-five years after your life is destroyed, or posthumously. Then I consider that this re-investigation and exoneration would never have happened at all, but for an excellent documentary Who Killed Malcolm X? by a dogged historian/researcher who thoroughly investigated the killing of his hero. Netflix aired the documentary and outgoing Manhattan DA Cyrus Vance opened a re-investigation as soon as he considered the letter from the filmmaker, Abdur-Rahman Muhammad, and watched the compelling film.

I think of the long game of history. In 2060 or so perhaps the final story of the party-line confirmation of deeply divisive uber-conservative partisan Boof Kavanaugh will finally be told, once his forty year reign on the court is done and the appropriate amount of time has elapsed for the release of the thousands of pages of Kavanaugh-related documents the judicial committee was not allowed to see. Citizens, if there any left by then, will also learn the details of the 4,000 tips the FBI received, during a rushed farce of a five-day investigation into allegations against Kavanaugh, tips that went directly to Kavanaugh’s sponsor at the White House, fellow Federalist Society all-star Don McGahn, who promptly rejected them all.

Had these documents been seen, and publicized, had the FBI followed up on any of the tips, or even interviewed Kavanaugh, his friend Mark Judge and Christina Blasey-Ford, the Justice’s fiery, angry, paranoid, hyper-partisan speech in defense of himself as a victim of a cabal of powerful lying enemies would not have won the day.

For now, all we have are the words he uttered that day, after Blasey-Ford’s credible testimony, angrily snorted, slightly unhinged words that should have disqualified him from sitting on the Supreme Court, words he proudly (and unaccountably) told the world he wrote himself:

And this capsule biography of the longtime right-wing partisan, from Wikipedia:

Kavanaugh studied history at Yale University, where he joined Delta Kappa Epsilon fraternity. He then attended Yale Law School, after which he began his career as a law clerk working under Judge Ken Starr. After Starr left the D.C. Circuit to become the head of the Office of Independent Counsel, Kavanaugh assisted him with various investigations concerning President Bill Clinton, including drafting the Starr Report recommending Clinton’s impeachment. After the 2000 U.S. presidential election, in which he worked for George W. Bush‘s campaign in the Florida recount, he joined the Bush administration as White House staff secretary and was a central figure in its efforts to identify and confirm judicial nominees.[3] Bush nominated Kavanaugh to the U.S. Court of Appeals for the D.C. Circuit in 2003. His confirmation hearings were contentious and stalled for three years over charges of partisanship. He was ultimately confirmed to the D.C. Circuit in May 2006 after a series of negotiations between Democratic and Republican U.S. senators.[4][5][2] Two law professors performed an evaluation of Kavanaugh’s appellate court decisions in four separate public policy areas for the Washington Post. It found he had been “one of the most conservative judges on the D.C. Circuit” from 2003 to 2018.[6]

Once this ambitious Zelig of right-wing absolutism (he was involved in each of this century’s most outrageous pre-Trump right-wing stunts– Ken Starr’s most zealous assistant, involved with stopping the Florida recount in 2001, secret rulings for Dubya as White House staff secretary, rewarded by quick lifetime elevation by Bush II– after an ugly confirmation fight) has ruled on countless cases, restricting the rights of workers, voters, consumers, poor women, his political enemies, once all the unappealable damage is summarily done — and bitterly recorded in dissents — our descendants will get to learn the rest of the story of how this entitled partisan warrior managed to get a lifetime appointment to the nation’s highest court and steer that court for decades. I imagine they will feel like the previous generations (and they, themselves) got fucked, just the way those two guys who had nothing to do with the killing of Malcolm X got fucked, and then exonerated, in the long moral arc of fucking history.

What is a lie?

This is now a legitimate, and urgent, question. It is related to “what is a crime?” The answer to both questions is, in a phrase a popular law professor taught all his students to say first “it depends”. The answer to both questions in the USA, after years of heartily advertised lies — smoking is perfectly safe, burning fossil fuels is perfectly good for the environment, Oxycodone has a magically low risk of addiction, being in a rage all the time is good for your health, never apologizing is a sign of strength — is that as a society we’ve come to accept many knowing lies as possibly true. After all, why would Exxon or Dick Cheney, or the philanthropic Sackler family, or autocratic multi-billionaire Charles Koch lie?

Boof Kavanaugh’s presumably adoring mother provided her hyper-ambitious only child a good framework for evaluating the truth or falsity of claims that come before a judge: “Use common sense, what smells OK, what smells funny, who stands to gain by the claim?” (Martha Kavanaugh is quoted as saying ““Use your common sense. What rings true. What rings false.” which is a slightly weaker vanilla formulation of what I recall Boof saying, I’ll give the former Montgomery County civil court judge the benefit of the doubt here) It’s a pretty good guide for spotting truth or lies, especially if you include “who stands to gain by the claim”. That seems to me the key consideration when listening to a statement that rings a little iffy.

If you go through a large sum of money, quickly and without any apparent cause, someone might conclude you have a gambling problem. It’s not an unreasonable theory to account for blowing through a pile of cash in an otherwise unexplainable manner. If you are pressed by a family member on the loss of the money, and that family member assumes you have a gambling problem, you will need to say something convincing. You press forward tentatively at first, explaining that you had many unforeseen expenses, such as blah, blah and blah, and had borrowed money you had to repay, which necessitated borrowing more money, which meant you spent more of your own money than you’d planned… if the family member seems amenable to these absurdist explanations you clinch the thing by looking her in the eyes and saying “I do not have a gambling problem.” To disprove the lie, you’d have to find the guy’s bookie, or betting slips, or credit card charges at a gambling parlor. Otherwise, who are you going to believe your wild hunch or my sincere explanation about why your wild hunch is completely wild?

We are now living in the Age of Justifiable Lying, you might say. Lying is seen by millions of our fellow Americans as a purely transactional act, part of the price of doing business, if you like. For the first time in American history a losing candidate (of one party) now routinely doesn’t accept the results, charging voter fraud as the cause of their defeat. Glenn Youngkin won a close governors race in Virginia by about 70,000 votes. His Democratic opponent, seeing the margin was insurmountable, conceded Youngkin’s victory. The same margin decided the race in New Jersey, but the Republican refused to concede for days, making noises about likely fraud, until he blinked and finally conceded defeat.

This refusal to bow to so-called reality, of course, comes directly from the man currently in charge of the Grand Old Party. Trumplethinskin [1] announced in the lead up to his reelection loss to Biden that the only way Biden could beat him would be by cheating. The subtext was that urban voters, in areas where coloreds and whites interact daily on a level perhaps not seen in rural areas, where the real American Volk live, are inherently corrupt, hate America and the good old days, are too “woke” to see how wrong they are about everything. So if you give “urban” votes the same weight as rural votes you will never have true democracy in this country and the place will go openly Communist and white people will be put on trial for things like innocently killing Black people because they have a reasonable and legitimate fear of them.

People like me keep pointing at the evidence that there has never been widespread voter fraud in this country. Partisans like the creepy Hans von Spakovsky have made a career of hunting down voter fraud, fancying themselves warriors for justice, modern day Simon Weisenthals. Spakovsky has found virtually no fraud, ever, and you can see his paltry findings in the database of voter fraud he has been compiling, going back decades. You can point at all the evidence you like, but if the lie has more appeal to you, confirms your worldview, then the so-called lack of evidence is just more evidence of fraud.

When evaluating a claim and deciding whether it is true, it often feels better, and is much easier, to go by your gut than by sifting through conflicting evidence and weighing both sides like some kind of scientist. This gut feeling of truth is the essence of the “confirmation bias” we tend to believe anything that confirms what we already believe. It does not negate the importance of facts and reasoned argument based on fact, of course, but at the same time it often clearly does. Try parsing that one.

Here is the recent statement of facts Judge Tanya Chutkan wrote to put her decision about the former president’s right to hide anything that could irreparably harm him (say by subjecting him to criminal liability for planning and inciting a violent attack to stop the certification of votes and overturn the election).

While not material to the outcome, some factual background on the events leading up to and including January 6, 2021, offers context for the legal dispute here. In the months preceding the 2020 presidential election, Plaintiff declared that the only way he could lose would be if the election were “rigged.” See, e.g., Donald J. Trump, Speech at Republican National Convention Nomination Vote at 22:08 (Aug. 24, 2020) in C-SPAN, https://www.c-span.org/video/?475000- 103/president-trump-speaks-2020-republican-national-convention-vote.

In the months after losing the election, he repeatedly claimed that the election was rigged, stolen, and fraudulent. For example, in a December 2 speech, he alleged “tremendous voter fraud and irregularities” resulting from a late-night “massive dump” of votes. See President Donald J. Trump, Statement on 2020 Election Results at 0:39, 7:26 (Dec. 2, 2020) in C-SPAN, https://www.cspan.org/video/?506975-1/president-trump-statement-2020-election-results. He also claimed that certain votes were “counted in foreign countries,” that “millions of votes were cast illegally in the swing states alone,” and that it was “statistically impossible” he lost. Id. at 12:00, 14:22, 19:00.

After losing the election, Plaintiff and his supporters filed a plethora of unsuccessful lawsuits seeking to overturn the results. See, e.g., Current Litigation, AMERICAN BAR ASSOCIATION: STANDING COMMITTEE ON ELECTION LAW, Apr. 30, 2021, https://www.americanbar.org/groups/public_interest/election_law/litigation/.

The United States Supreme Court also denied numerous emergency applications aimed at overturning the results. Id. In response, Plaintiff tweeted that the Court was “totally incompetent and weak on the massive Election Fraud that took place in the 2020 Presidential Election.” Donald J. Trump (@realDonaldTrump), TWITTER (Dec. 26, 2020, 1:51 PM), https://www.presidency.ucsb.edu /documents/tweets-december-26-2020.

He continued his claim that “We won the Presidential Election, by a lot,” and implored Republicans to “FIGHT FOR IT. Don’t let them take it away.” Id. (Dec. 18, 2020, 2:14 PM), https://www.presidency.ucsb.edu/documents/tweets-december-18- 2020. A Joint Session of Congress was scheduled to convene on January 6, 2021, to count the electoral votes of the 2020 presidential election and to officially announce the elected President, as required by the Twelfth Amendment to the U.S. Constitution and the Electoral Count Act.

In the days leading up to January 6, Plaintiff began promoting a protest rally to take place hours before the Joint Session convened. On December 19, 2020, he tweeted “Statistically impossible to have lost the 2020 Election. Big protest in D.C. on January 6th. Be there, will be wild!” Donald J. Trump (@realDonaldTrump), TWITTER (December 19, 2020, 6:42am), https://www.presidency.ucsb.edu/documents/tweets-december-19-2020.

During a rally, he warned that “Democrats are trying to steal the White House . . . you can’t let that happen. You can’t let it happen,” and promised that “[w]e’re going to fight like hell, I’ll tell you right now.” See Donald J. Trump, Remarks at Georgia U.S. Senate Campaign Event at 8:40, 14:19 (Jan. 4, 2021) in Campaign 2020, C-SPAN, https://www.c-span.org/video/?507634-1/president-trumpcampaigns-republican-senate-candidates-georgia.

On January 6, Plaintiff spoke at the rally at the Ellipse, during which he repeated claims, rejected by numerous courts, that the election was “rigged” and “stolen”; urged then Vice President Pence, who was preparing to convene Congress to tally the electoral votes, “to do the right thing” by rejecting certain states’ electors and declining to certify the election for President Joseph R. Biden; and told protesters to “walk down to the Capitol” to “give them the kind of pride and boldness that they need to take back our country,” “we fight. We fight like hell. And if you don’t fight like hell, you’re not going to have a country anymore,” and “you’ll never take back our country with weakness.” See Donald J. Trump, Rally on Electoral College Vote Certification at 3:33:04, 3:33:36, 3:37:20, 3:47:02, 3:47:22, 4:42:26, 4:41:27 (Jan. 6, 2021) in Campaign 2020, C-SPAN, https://www.c-span.org/video/?507744-1/rally-electoral-collegevote-certification.

Shortly thereafter, the crowds surged from the rally, marched along Constitution Avenue, and commenced their siege of the Capitol. 

source


The only way to refute this well-documented statement of fact is to angrily denounce this federal judge as a partisan fucking liar, an obvious BLM terrorist-sympathizer and Trump hater who was not even born in this country! That argument will fly with about 39% of the population, those who believe it’s “common sense” to administer Texas justice to a traitor like fucking Mike Pence.

Here’s Martha Kavanaugh, watching them attempt to crucify her innocent and totally nonpartisan son:

[1] tip of the yarmulke to Stephanie Miller

Nothing ominous here

Just because ultra-nationalist Steve Bannon’s body guard (and everyone surrendering for arrest in a nonviolent crime is entitled to a body guard) is dressed as an ISIS fighter is no reason to get excited. It’s the mercenary’s right as an American to dress however the hell he wants. See First and Second Amendments.

Stephen K. Bannon, former adviser to Donald Trump, arrives at the FBI’s Washington field office to turn himself in to federal authorities
(Kevin Lamarque/Reuters)

Bannon, by the way, is reportedly worth $55,000,000. If his legal defense against hard to refute charges of Contempt of Congress costs him $1,000,000, you’d expect Bannon to brush that sum aside, a small price to pay for the public performance of valor, steadfastness and the ability to look Destiny in the eye without blinking.

Plus, Bannon will likely be able to raise that sum from the generous MAGA suckers Trump already pardoned him for fleecing (allegedly fleecing — alleged by traitor Bill Barr’s partisan anti-Trump DOJ who arrested and criminally indicted Sloppy Steve).

Fortunately for people like Bannon, there are always billionaire’s yachts, in international waters, where a committed, disciplined, history-studying man-of-the-people, white nationalist can unwind and formulate the next part of his evolving long term battle plan.

You Are the Object of a Secret Extraction Operation

The brilliant Shoshana Zuboff wrote an essay published by the New York Times the other day, You Are the Object of A Secret Extraction Operation. It is worth reading and hopefully my “gift” link will allow you to read it on the NY Times website without being blocked by a pay wall. The essay begins:

Facebook is not just any corporation. It reached trillion-dollar status in a single decade by applying the logic of what I call surveillance capitalism — an economic system built on the secret extraction and manipulation of human data — to its vision of connecting the entire world. Facebook and other leading surveillance capitalist corporations now control information flows and communication infrastructures across the world.

These infrastructures are critical to the possibility of a democratic society, yet our democracies have allowed these companies to own, operate and mediate our information spaces unconstrained by public law. The result has been a hidden revolution in how information is produced, circulated and acted upon. A parade of revelations since 2016, amplified by the whistle-blower Frances Haugen’s documentation and personal testimony, bears witness to the consequences of this revolution.

The world’s liberal democracies now confront a tragedy of the “un-commons.” Information spaces that people assume to be public are strictly ruled by private commercial interests for maximum profit. The internet as a self-regulating market has been revealed as a failed experiment. Surveillance capitalism leaves a trail of social wreckage in its wake: the wholesale destruction of privacy, the intensification of social inequality, the poisoning of social discourse with defactualized information, the demolition of social norms and the weakening of democratic institutions.

These social harms are not random. They are tightly coupled effects of evolving economic operations. Each harm paves the way for the next and is dependent on what went before.

There is no way to escape the machine systems that surveil us, whether we are shopping, driving or walking in the park. All roads to economic and social participation now lead through surveillance capitalism’s profit-maximizing institutional terrain, a condition that has intensified during nearly two years of global plague.

Will Facebook’s digital violence finally trigger our commitment to take back the “un-commons”? Will we confront the fundamental but long ignored questions of an information civilization: How should we organize and govern the information and communication spaces of the digital century in ways that sustain and advance democratic values and principles?

source

Corporate lawyers like John Roberts (in his previous corporate gig) made formerly voidable one-sided “contracts of adhesion” (take it or leave it, chump) as good as gold in all contracts between individuals and the corporations who require our agreement to their terms of service before we may use those services. It works even for expensive products we buy, like $1,000 smart phones, our use of our own property is dictated by terms that advantage only the corporations providing these miraculous services. As Roberts clairvoyantly saw in crafting his innovative, popular, now standard arbitration clause (by clicking this button you agree to waive the right to sue us in court, no matter what, and consent to pay 50% of the cost of binding arbitration) in the contest for profits, every bit of deference must go to the canny corporation and let the unsophisticated, dumb-ass buyer beware.

As Zuboff shows, in her groundbreaking The Age of Surveillance Capitalism; The Fight for a Human Future At the New Frontier of Power, and again in this essay, the escalating worldwide harm done by the new keepers of the public commons, social media giants, must be mitigated and regulated by democratic lawmakers to protect democracy from the wild, self-regulated pursuit of vast personal fortunes at the expense of all non-market based values.

Mark Zuckerberg and Sheryl Sandberg, two poster children for profit over everything (profit uber alles) constantly defend their right to regulate themselves and make as much money as possible while doing so. It is not their job to judge the credulous stupidity of the public when making business decisions. After all, who in their right mind would turn down a fifty million dollar ad buy, even if it was an ad to spread an incendiary lie about a stolen election, a calculated lie debunked in dozens of lawsuits, and one that would predictably lead to outrage and possibly violence? That’s strictly a business decision, something to which the Court has always granted great deference, it’s simply The Business Judgement Rule — courts won’t interfere in corporate business decisions if there is any theoretically plausible money making rationale for them.

Zuckerberg told his executives, prior to the 2016 election (when Hillary was making noises about regulating giants like Facebook) that any government attempt to regulate Facebook would be such an “existential threat” that you have to stand on principle, you “go to the mat”, you go to the fucking mat to defend your right to double and triple your hundred billion dollar personal fortune, sue the government, do whatever needs to be done. The principle? Nothing wrong with greed, you judgmental fucking losers.

Perhaps Zuckerberg is right. 99% of the world is a bunch of crying, bitter, jealous, judgmental fucking losers, doomed to die inglorious asshole deaths after wasted lives spent envying people like him. It’s people like him, the true outliers, visionaries, men of the future, who should, by force of meritocracy and the will of the Free Market, decide what is best for the world. Who would know better than a maladjusted nerd who had become, at a precocious age, one of the richest men in human history?