Category Archives: History and Politics

So-called law vs. popular rage

Law in a democracy, (while tilted towards the wealthy and politically powerful, who can employ armies of lawyers to negotiate, wheedle and delay on their behalf, and also hire expert lobbyists to rewrite laws that are disadvantageous to them), is the final word on what is legal or illegal and who is accountable to the rest of us.  That’s why we often hear “the rule of law” used as a synonym for democracy. 

Clearly there are multiple tiers to our justice system, and the rich and powerful are not generally debased by being subjected to the strict laws that are generously applied against the lower and criminal classes.   Here, we make no distinction between… you know the rest.  Still, our laws, and justice system, which apply to all citizens, residents and non-diplomatic visitors, are what protect our American experiment in democracy. 

In autocracy, the autocrat can change and bend the law at will.  Crooks that help the autocrat are given positions of power, immunity from prosecution, sprung from jail if convicted, pardoned and restored to positions of power.  Autocracy, as scholar of fascism Ruth Ben-Ghiat points out, is always enabled by a conspiracy of powerful criminals who ruthlessly serve the autocrat.  Note that the rule of law applied in Nazi Germany also, though every judge, prosecutor, and defense lawyer was required to be a Nazi party member and the law was whatever the Führer said it was on any given day.  

Here in the USA, even a judge vetted for loyalty to a political philosophy (membership in a legal fraternity with a strict view of how the law needs to be changed) and appointed by a president with a bent toward authoritarianism, will not be able to rule for his benefactor without evidence.  The courts, (until you reach the Supreme Court, constrained by neither ethical rules nor weighing of actual evidence, and where a medieval scholar can be cited as unappealable proof that abortion is murder), are bound by the rule of law, limited in their decisions by the weight of the actual evidence presented.

In a case I followed, Trump, et al v. Boockvar [1], one of hundreds of lawsuits brought by Trump for President, Inc. and the RNC prior to the 2020 election, in a concerted attempt to suppress Democratic mail-in and drop box votes, a young Federalist Society judge, J. Nicholas Ranjan, appointed for life by the plaintiff himself, ruled that evidence of massive potential voter fraud and “vote dilution” and all the rest of the claims Trump made against Pennsylvania Secretary of State Boockvar  must be presented.  He then ruled that the evidence presented, hundreds of pages of printouts of opinion pieces by Breitbart, FOX and the like, did not satisfy the legal definition of evidence of concrete harm.  In dismissing the case, he wrote more than a hundred additional pages explaining the legal rationale for every one of his decisions and detailing the authorities he relied on, for the benefit of the federal appeals court he wrote was likely to get the case.  He made his decision appeal-proof, basically.

A great day for the rule of law and the burden of proof.  Here’s a link to the case https://casetext.com/case/donald-j-trump-for-president-inc-v-boockvar-3  and I suspect you’ll be as shocked as I was to scan, at the top of the judge’s long decision, the list of hundreds of people involved in litigating a case that went on for months before being dismissed for lack of evidence.  There is also, naturally, a scary wink at the Federalist Society’s best hope for changing the nature of our multi-racial democracy, another seed of the Independent State Legislature “Doctrine” [2].  This “doctrine” is teed up for a 6-3 decision next term on whether state legislatures have the ultimate authority to decide who won federal elections in their state, no matter what “majoritarian tyranny” might have to say at the so-called voting booth.

In a court of law (outside of the current Supreme Court), you need proof of your legal injury or your case gets dismissed.  In the court of public opinion, proof is not necessary for angry partisans who believe the worst of their enemies automatically.  You need to keep righteous outrage boiling and have people willing to physically threaten those who insist on the, like totally unfair, “rule of law.”  What to make of an outrageously unfair law like the one below?  Makes you want to holler, if you support the man millions are vindictively hoping will be finally prosecuted for it, and many other crimes he appears to have serially committed:

18 U.S. Code § 793 – Gathering, transmitting or losing defense information

(f) Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer—

Shall be fined under this title or imprisoned not more than ten years, or both.

(g) If two or more persons conspire to violate any of the foregoing provisions of this section, and one or more of such persons do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be subject to the punishment provided for the offense which is the object of such conspiracy.

and, most unfair of all, if you make money by legitimately selling so-called national security documents, that you honestly believed you owned and had every right to sell, or do whatever else you wanted with, they try to “legally” confiscate the money you made!  On top of fines and prison time!

(h) (1) Any person convicted of a violation of this section shall forfeit to the United States, irrespective of any provision of State law, any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, from any foreign government, or any faction or party or military or naval force within a foreign country, whether recognized or unrecognized by the United States, as the result of such violation. 

Take names (agents who conducted the partisan search and illegal seizure, the judge who allowed it, and their families!) and… let’s just say “kick ass”.  Shame if anything happened to this nice little democracy of yours.   If you’re thinking of weaponizing the Secret Service (SS) innocently not informing members of Congress of on-line chatter calling for their murder, by name (hi, Nancy), on January 6, until hours into the riot — think again!

[1]

In Donald J. Trump for President, Inc. v. Boockvar, No. 2:20-cv-966, 2020 WL 5997680 (W.D. Pa. Oct. 10, 2020), the Western District of Pennsylvania dismissed a legal challenge to election guidance given by the Secretary of the Commonwealth of Pennsylvania regarding manned security near absentee drop boxes, performing of signature comparisons for mail-in ballots, and a county-residency requirement for poll watchers.

[2]  from Ranjan’s decision:

But the job of an unelected federal judge isn’t to suggest election improvements, especially when those improvements contradict the reasoned judgment of democratically elected officials. See Andino v. Middleton , ––– U.S. ––––, 141 S.Ct. 9, 9–10, 208 L.Ed.2d 7, (Oct. 5, 2020) (Kavanaugh, J. concurring) (state legislatures should not be subject to “second-guessing by an unelected federal judiciary,” which is “not accountable to the people”) (cleaned up).

Donald J. Trump for President, Inc. v. Boockvar, 493 F. Supp. 3d 331, 343 (W.D. Pa. 2020)

The Espionage Act and Rand Paul’s call to abolish it

Rand Paul (R-Ky) is an immense, reeking pile of excrement, and I say that with all due respect to prickly, eternally aggrieved Doctor Paul. He asked today how we know the FBI isn’t busy planting evidence, adding incriminating evidence to the boxes seized at Mar-a-Lago, how do we know the DOJ isn’t a bunch of liars? That said, his recent attack on the 1917 Espionage Act is not nearly as crazy as, say, his ongoing personal war with Anthony Fauci, or his generally paranoiac worldview.

The Espionage Act, as Paul points out, criminalizes certain forms of dissent in a way that offends the Constitution, the First Amendment specifically. The strict wartime law certainly needs to be looked at carefully and rewritten much better than its current form. The same could be said about Nixon’s 1970 Controlled Substances Act and other laws that are still on the books, laws that were made primarily for political purposes and that we can fairly conclude outlived their ugly origins.

So fine, Rand, let’s not prosecute Mr. Trump pursuant to the Espionage Act. Obstruction of justice fits Trumpie and his gang much better anyway.

The Espionage Act of 1917

The Espionage Act of 1917 (extended by the Sedition Act of 1918), mentioned on the FBI search warrant for Mar-a-lago, is one of the most hastily written and draconian laws in the American federal criminal code. Let’s concede that there are matters of vital national security that every nation keeps top secret and that laws need to be in place to protect deadly state secrets, to avoid nuclear war, for example.  The Espionage Act covers those things, but quite a bit more, and in its present form, is a nightmarish legal quagmire in many respects to anyone charged under it.  For one thing, there is virtually no defense available, the First Amendment, for example, is not a viable defense.

The Espionage Act, (full name: An Act to punish acts of interference with the foreign relations, and the foreign commerce of the United States, to punish espionage and better enforce the criminal laws of the United States, and for other purposes) was passed two months after the US entered World War One against Germany.  It was designed to criminalize dissent against a deliberately promoted war in Europe that over a hundred years later nobody can untangle the reasons for, except that a lot of money belonging to the richest men in the world (and loaned to Britain and France) was riding on the roulette wheel of the outcome of this war of colonial superpowers.  Woodrow Wilson unleashed a massive, modern advertising blitz to sell the “war to end war” and “the war to make the world safe for democracy”  to initially skeptical Americans, who eventually signed up for it in a fervor of calculatedly stirred patriotic passion.  Anyone with any influence who was publicly critical of Wilson’s drive to war became an internal enemy, subject to the harsh justice of the Espionage Act.

The law made it criminal to give “aid and comfort to the enemy” by, for example,  making public statements calling into question the government’s overriding national interest in prosecuting a war, for any reason imaginable. This broadness was included specifically for the purpose of making sure the United States entered and remained in this war on the side of the Allies (who owed the wealthiest Americans an untold fortune by the middle of the war, a fortune that would be lost if Germany won).  The Espionage Act made otherwise First Amendment protected free speech a criminal offense, akin to treason, in time of war.  It prohibits “any disloyal, profane, scurrilous or abusive language about the form of government of the United States… or the flag.” 

The devilish genius of this statute is that intent is not an element of the crime under the Espionage Act, all you have to do is anything that prosecutors can argue gave aid and comfort to the enemy.  That’s why Julian Assange is on the verge of suicide, because he’s facing life imprisonment under this law where his intention in making public what he considered matters of grave public concern, such as video proof of at least one war crime, an aerial attack by a US helicopter crew against unarmed noncombatants in Iraq,  cannot be introduced as part of his defense.   Edward Snowden, same deal, no matter how strong a case he can make for the immense public importance of his disclosure of vast secret government surveillance of American citizens, under the Espionage Act his intentions, even the actual effects of his disclosure, are 100% irrelevant to his guilt or innocence. 

It is a unique and brutal law, which, in its day, put many critics of the “war to end war” in prison.  Popular American Socialist leader and presidential candidate Eugene V. Debs was convicted and sentenced to ten years during World War I for charges under the Espionage Act. It is used periodically (though very rarely) as a power move to chill dissent.  I personally don’t forgive Obama for deploying it many times (he set the post World War One record for Espionage Act prosecutions) against journalists and others who could fairly be called whistleblowers. It should be removed from the books, or dramatically improved, but while it is good law it is the perfect law to prosecute someone who keeps denying he has any intent to ever do anything except be perfect and a persecuted savior of the people who are under threat from so many sick and dangerous enemies, it’s unbelievable!

Beautiful bit of poetic justice

Reported by my sister, Amy Goodman:

If Trump is proven to have mishandled classified documents, he could be guilty of a felony. In 2018, then-President Trump signed a bill upgrading the crime from a misdemeanor to a felony, while increasing punishments for those who mishandle classified information.

https://www.democracynow.org/2022/8/12/headlines/wapo_fbi_searched_trumps_residence_for_classified_nuclear_arms_documents

GOP members of House Intelligence Committee call for transparency and accountability for unfair DOJ raid on their boss

The Republicans on the House Intelligence Committee held a news conference to challenge the Department of Justice for its decision to use “the most extreme measures” to recover evidence of what a federal judge was convinced is probably related to a federal crime. The committee members, speaking in measured tones, are outraged that the DOJ has not given them an urgent National Security reason for the search and is not immediately releasing the search warrant and inventory, (two items already in Trumpie’s hands and that he could have released at any time, but petty to mention [1]) as well as everything else related to the FBI search. They are united in their measured outrage over this outrageous attack on a man who, they say, has willingly and fully cooperated with every illegal partisan witch hunt against him. They are also troubled by the presence of a possible informant, one they say they are entitled to know the identity of.

Fox News has largely swung their influential allegiance in the 2024 presidential election toward Florida strongman Ron DeathSantis (as he’s called by half of the population of Florida) and away from besieged, compromised, damaged Teflon Don Trump. However, Rupert Murdoch is deeply committed to his far-right worldview, fascism is far preferable to majoritarian tyranny disguised as democracy to a billionaire with Murdoch’s extreme beliefs.

So here’s Fox’s live coverage of the Republican membership of the House Intelligence Committee demanding answers from Merrick Garland and the politicized, highly partisan DOJ. Other Congressional Republicans have already made it clear that when they take control of the House Garland’s going to be on the hot seat along with Biden, Harris, Schiff, Nadler, Schumer, Pelosi, Hillary and all the rest of the scoundrels they oppose for not letting them make America great again. Those Benghazi hearings, and the calls to lock her up related to Hillary Clinton’s emails, they’re promising, are going to look like yer proverbial child’s play compared to what they’re threatening against so-called elected Democrats if they take control of Congress in 2023.

In this news conference they demand answers- – why not a subpoena, why this extreme step? What is the specific urgent National Security reason that could legally justify this extreme step? DOJ, part of the (Unitary) Executive branch is riding roughshod over Congressional oversight by a co-equal branch, WTF? They want the identity of the informant, the spy, (the Rat, in Trump- speak) and they are very serious in demanding all of these answers. Serious as a heart attack.

I made it through the first six minutes, noting the obvious reason for no subpoena, that a subpoena for these exact items has already been defied by the former president, months ago, after many months of negotiation with his lawyers. He is the former president who instructed his loyalists to defy all subpoenas and fight them in court. His third AG, Barr, insisted to Congress that it was reasonable to believe Obama had “spies” in place during the transition, which helps explain why Mike Flynn’s lies to Pence and the FBI about illegal contacts with Russia, and his undisclosed paid work for the Turkish strongman, were “immaterial”. Barr also whipped up baseless fears of massive voting fraud in the 2020 election, before things at the White House finally went off the rails and he had to get the hell out of there to avoid facing criminal charges himself.

The long list of GOP grievances and demands presented today in relation to the FBI search is a tissue of the same stuff, nonetheless interesting to hear them set it out with a straight face, and the great moral indignation which is their hallmark. Their presentation will no doubt be very convincing to millions of “low information voters” who are already upset about what appears to be the brutal, baseless crucifixion of their charismatic, persecuted leader, a man of the people millions of Fox viewers faithfully love.

[1] Garland held a rare press conference yesterday during which he called bullshit on Trump. He announced that DOJ has gone to court seeking judicial permission to release copies of the search warrant and property inventory that Trump already has and is already legally free to release to the public. The federal judge in that case has given Mr Trump until 3:00 p.m. today to either oppose the DOJ or agree to it and allow those two documents to be released to the public, by DOJ.

Excellent point about “social media” amplifying a few angry idiots into a scary army spoiling for civil war

Sekhnet cracked me up the other day, it was really the best laugh I’ve had in a long time. She told me she didn’t know what is wrong with her increasingly right-wing friend who was getting weirder and weirder. She told me she’d sent him something and got a very weird response. This is what she sent him.

Cohen makes an excellent point about the right demanding that everybody obey their morality because they are right and those who disagree are evil. Fair enough, the Supreme Court did it to a disgusting extent this term (with more big bombs in waiting for next term), extremists always do this when they have the power.

But Megan McArdle, writing in the Washington Post, makes an even better point. Before the anonymizing anger megaphone of “social media”, a worked up ignorant asshole could be tolerated by his or her family, who would quietly roll their eyes to each other and let hateful views slip by without a fight. On social media every one of these trolls now has a giant megaphone. Get a few thousand of them worked up about something, and it immediately looks like civil war is afoot. In this case, a small army of isolated, angry assholes on Twitter make it seem like there is a nationwide “right-wing boycott” of a restaurant chain for adding an item to its menu that they somehow find offensive, which it clearly is not.

Read McArdle’s great take, “Cracker Barrel leaders understand an often-forgotten truth of the internet.” I found it smart and reassuring.

https://wapo.st/3BXr7p5

Gazpacho thugs attack innocent man’s home!

There are at least two sides to every story, as we know. And, in fairness, the search warrant executed at Mar-a-Lago yesterday has no known connection to any attempt by anyone to overturn any election anywhere. If you think all of this completely coincidental “destruction of crucial evidence,” by Secret Service, by the never confirmed acting heads of the Department of Homeland Security, by the winking slightly partisan Inspector General of DHS, by the Department of Defense, by White House log keepers, in any way justifies government agents searching an ex-president’s home, and even his safe, you need to hear a complete defense for why that FBI raid on Mar-a-Lago was, to some, much worse than the so-called riot on January 6th and all the alleged plans appurtenant thereto. Here we go, my best attempt to distill the story as told in defense of the man whose home was searched:

In an unprecedented attack, not seen since Nazi Germany, the private home of an innocent man was overrun by agents of a hostile political party! It was a private home. There was no justification for a partisan storming of the man’s house. The man had already been completely acquitted and exonerated of all charges at two previous trials, which were brought only to hurt him because his enemies knew he was actually right. He was totally exonerated both times. There was never any evidence against him, certainly not at either purely political “trial” and there is no evidence now, and no evidence was ever destroyed and nobody ever lied on his behalf in a court of law or anywhere else (and Stone and Manafort were both pardoned and whatever they were accused of or convicted for never happened, smart ass). He himself also never lied, in the true harmful sense of the word, but those who hate him, and by extension all good legacy Americans, constantly lie, in the most evil and destructive way!

There will be revenge for this deplorable gazpacho attack, we’re taking names and kicking asses because we are not idiots and we’re justifiably angry as hell. Long live our holy party and our righteous cause! Fuck communism!

Here’s a much more intellectual version, for your consideration.

An op ed in today’s Washington Bezos, entitled  “Trump should make the search warrant public”  (https://wapo.st/3SDW9bx) begins:

There is little doubt that the residence and offices of a former president can be subjected to lawful searches and seizures. Anyone doubting this should read the opinion of Chief Justice John G. Roberts Jr. in 2020’s Trump v. Vance as well as the concurrence by Justices Neil M. Gorsuch and Brett M. Kavanaugh.

In that case, a New York state grand jury subpoena had been served on the president’s longtime accounting firm for the president’s papers. The Vance opinions review all the relevant precedents involving Thomas Jefferson, Richard M. Nixon and Bill Clinton. The justices, including the dissenters, agreed that not all criminal subpoenas of a sitting president were barred. “On that point the Court is unanimous,” the chief justice concluded.

If a sitting president is in some circumstances subject to criminal subpoenas from state officials, a former president can most certainly be subjected to criminal process by federal agents. This has never happened before, but as with all things Trump, the past is no guide to the present.

shortly afterwards, the legal analysis takes a sudden turn, with an announcement of what one side

rightly believes:

Most Republicans rightly believe that Trump has been unfairly targeted by civil servants motivated by partisanship going back years, long before his stunning election in 2016 and certainly thereafter. The “Steele dossier,” now thoroughly discredited, the charges of collusion with Russia debunked by special counsel Robert S. Mueller III, and the allegations of obstruction of justice dismissed as insubstantial by Attorney General William P. Barr all helped create an automatic suspicion on the right of this latest search.

punchline:


Opinion by Hugh Hewit

Hugh Hewitt is a nationally syndicated radio host on the Salem Radio Network. He is also a professor at Chapman University School of Law, where he has taught constitutional law since 1996. 

Aha! Colleague (former) of onetime dean of Chapman, John Eastman, Esq. (dismissed by Chapman after his central role in January 6 plan became public.)

Now go back and read the news reports, you’ll have a better perspective, having heard another side of the story.