Obstruction of Justice 101

I buried the lede yesterday in writing about the Trump-appointed Federal Election Commission quorum voting 2-2 not to recommend prosecution of Donald Trump for the federal campaign-finance crime he ordered Michael Cohen to commit. The lede should have been:

Donald Trump successfully obstructs justice, again. Add another count to his federal indictment for obstruction of justice.

I laid out the mechanics of Trump’s latest daring escape from prosecution in the previous post. The rest of the story is the largely successful war Trump has been fighting, to this point, against all accountability for himself and, more scary still, against objective reality. The election that he lost, and fought and lost dozens of increasingly desperate fights over in court — and then incited a riot to try to overturn? He won that election in a landslide.

That millions of our fellow citizens now believe the deranged, conspiratorial myth that a powerful, bipartisan cabal of monsters, including diehard Trump supporters in various states Trump lost, stole the election from the beloved Trump is very troubling. I don’t know what the solution to that kind of mass delusion is. The only remedial action I can think of is a public accounting of Trump’s seamless obstruction of justice, conviction of which should land him locked up (“Lock him up! Lock him UP!”) and finally unavailable to terrorize his craven supporters and enablers in the upcoming national elections.

Obstruction of justice is the federal crime Trump must be tried for, in order to reaffirm the rule of law. Trump’s mouthpieces have regularly insisted that nobody is above the law, with the obvious exception, of course, of their peerless leader, and any one of his associates who has incriminating information about Mr. Trump.

Trump may have been “morally and practically responsible” (Mitch McConnell) for sending a tsunami of rioters down to the Capitol to violently disrupt a joint session of Congress and prevent the certification of Joe Biden’s “victory,” and that might be solid grounds for bipartisan impeachment, but as McConnell also made clear, the Democrats missed their deadline for legally filing the articles of impeachment (under a rule he just made up and guaranteed they’d violate by his refusal to take the articles sooner) and, since the shit don’t fit, we must acquit!

Any unbiased observer who has followed current events knows that the compulsively untruthful Trump engaged in a seamless pattern of obstruction of justice for his entire presidency, and beyond. He accomplished much of his obstruction, and escaped accountability for his violations of laws and norms, by terrifying anyone who challenged him in any way. He has an impressively consistent record of publicly and vitriolically punishing those he feels lack sufficient personal loyalty to him. Let’s look at that pattern and practice a bit.

Trump had a clear legal right to fire the FBI director, for example, unless he did it with a corrupt motive. It was the appearance of an attempt to obstruct the investigation into Flynn and collusion with Russia that led to Mueller’s appointment to investigate. The qualm some legal scholars expressed in bringing legal action against Trump for actions that appeared designed to obstruct justice, was the difficulty of proving an essential element of the crime of Obstruction of Justice, a corrupt intent behind any of Trump’s otherwise legal exercises of power.

A consistent pattern or practice of behavior in response to an ongoing situation can be used to show intent. Trump has been 100% consistent in his behavior, has, in fact, shown himself capable only of one set of reactions to anything he feels is a threat, criticism, or, worst of all, disloyalty. He reacts with rage and takes swift and brutal revenge. Here is a small sampling of his consistent pattern of behavior showing his ongoing intent to obstruct justice.

His expressed intent in firing Comey, to end the FBI investigation and conceal Flynn’s connections with Putin (a “fix” he promptly celebrated with Russians in the Oval office), was shown again when he made numerous attempts to fire Mueller, who was investigating the many ties between the Trump campaign and Putin. As Mueller’s “witch hunt” heated up Trump forced the “weak” AG Sessions to resign and replaced him with former short-time Bush 43 AG, crime cover-up expert Bill Barr (he put the Iran-Contra affair to bed forever), who wrote, in auditioning for the job, that the Mueller probe was an illegal incursion onto the powers of the Executive.

As soon as Mueller sent Barr his report, Barr immediately lied about the contents of the Mueller report as to Obstruction of Justice (the federal judges who later found that Barr had deliberately misled the public in relation to his dismissal of Mueller’s findings and the false classification of a DOJ memo to hide it from scrutiny, used “lacked candor” and “disingenuous” [1] to describe Barr). Barr supported Trump over and over, announcing investigations into the investigators who had “exonerated” Trump, declining to prosecute Trump allies, spreading unfounded lies about the likelihood of election fraud, authorizing (and lying about authorizing) the use federal riot troops to break up peaceful demonstrations.

Trump fired inspectors general (like the one investigating Mike Pompeo), intimidated witnesses (in real time) as they testified in the House against Trump allies and took swift, public revenge against several of those witnesses. Trump also rewarded several of his top campaign advisors with pardons, an open, facially legal, quid pro quo in exchange for them dummying up for Mueller investigators, withholding evidence Mueller would have used to make a criminal conspiracy case.

Facts have come out since Mueller submitted his report that provide several of the missing evidentiary links that forced Mueller to conclude he didn’t have a chargeable criminal conspiracy between Trump operatives like Paul Manafort and Vladimir Putin. That Mueller didn’t get the facts because Trump loyalists withheld information is another obstruction of justice, and these loyalists getting the pardons Trump held out to them as motivation to stay quiet, and lie if necessary, are also clear examples of obstruction of justice. We also have Trump’s assertion of an absurdly broad blanket protective privilege that Bill Barr made up to allow Trump to refuse all subpoenas for anyone who’d ever worked with him and to defy various court orders.

I am only touching the basics, which include the ten damning incidents laid out by Mueller in the report that Barr falsely claimed “exonerated” Trump, incidents set out in the short summary Bill Barr substituted his own disingenuous summary for the day after Mueller turned over the massive two-volume report. Mueller immediately objected, by letter, to Barr’s mischaracterization of the report, which he called “misleading,” but Americans were not told about Mueller’s objection until weeks later, once Barr’s lying characterization of the findings, and Trump’s continual lying about the “witch hunt,” and his “exoneration” had become the last word on the matter. Now, it turns out, Barr was lying about a confidential memo he claimed was a privileged part of his deliberations on whether or not to keep his promise to Trump and make the Mueller findings go bye bye.

The ease with which Trump evaded all responsibility for open and continuous obstruction of justice, including crushing numerous investigations into himself, top cabinet officials and allies, underscores the weakness of an idealistic belief in democracy.

A system that depends on the ethical behavior of government officials to carry out its functions is easy for unethical types to exploit, as we have seen here, increasingly, during the last decade, especially during the Age of MAGA. Look no further than McConnell’s refusal to allow Antonin Scalia’s seat on the Supreme Court to be filled by an Obama appointee, or that well-qualified, moderate nominee even getting a hearing, as the Constitution requires.

If ethics oversight is cast aside, as it was repeatedly by Trump and his officials (Sessions, a Trump outlier who followed the sound legal advice of his ethics advisors, was cursed as a weakling and traitor and punished for following ethics advice) we’re in open seas. If ethical norms are routinely ignored, the field is clear for any corruption imaginable. Mike Pence’s crime, for which he was hunted to be strung up, was his “weakness” in following the law and not exercising a power he didn’t have by refusing to count the Biden Electoral College votes.

Trump raised the bar for bad Executive branch behavior from the standard “avoiding even the appearance of impropriety” to the almost insurmountable “incontrovertible proof of criminal wrong-doing that no jury anywhere could deny. Proof beyond a shadow of a doubt!” The matter of Trump’s guilt or innocence for violating the law (see, e.g. repeated Hatch Act violations during the 2020 campaign) longstanding customs and norms is as immaterial to Trump as the felony lies Mike Flynn pleaded guilty to telling the FBI were, in the end, to disingenuous Trumpist Bill Barr when he attempted to quietly bury the Flynn prosecution and conviction.

Hitler and his colleagues exposed the vulnerability of an idealistic democracy when they exploited and unseated the liberal Weimar Republic, high-minded in its “supine passivity” when actual fascists violently attacked it. The Weimar constitution, the most enlightened of its day, extended every civilized right to the accused, including those accused of waging violent revolution against the government, and a smart revolutionary could take advantage of these liberal rights.

Because the right-wing German judge who tried Hitler for his failed Beer Hall Putsch admired him, the future Fuhrer was given a platform to speak to the German people from the courtroom hours a day during his trial. Adolf emerged from the well-publicized treason trial a martyr for Germany, a patriot, and famous, particularly after writing his little read best-seller during his brief stay in comfortable quarters in Landsberg Prison [2].

So far, mostly, we still have the rule of law here in the USA. Even if some powerful criminals seem to constantly escape its reach, systemic injustice is widespread, and the wealthy have a tremendous advantage in court over everybody else, the rule of law has so far held here.

Things like the Federal Rules of Evidence prevent a judge from pulling a decision not based on evidence out of his partisan ass, except in the rare case (like the 10% of controversies in which Kavanaugh voted differently from Merrick Garland on the DC Court of Appeals) where judicial discretion can result in the desired partisan outcome.

You can have Trump-appointed, Federalist Society vetted, federal judges rule on cases involving Trump, but, to this point, they have not felt free to make up the law, except in rare cases.

When Judge Neomi Rao, the rabid Trumpist who was elevated to fill Boof Kavanaugh’s seat on the DC Court of Appeals, ignored existing law and invented a new legal doctrine to uphold Bill Barr’s decision to obstruct justice by attempting to throw out the Flynn guilty pleas, without a hearing, she was overturned by the full panel of appeals judges on her court.

When Trump lifetime appointee J. Nicholas Ranjan was asked to make a counterfactual finding in a case brought to severely limit mail-in voting in Pennsylvania, he dismissed the case not only for lack of credible evidence of potential fraud (or any evidence, actually, as he showed in detail) he spent 140 pages making his decision appeal-proof, giving endless legal and factual grounds that would instantly extinguish any chance of a successful appeal.

No matter how much Trump partisans in positions of public power may have wanted another result, in those voter suppression cases, in the 2020 election, they all, in the end, followed the law. Which is why the law in state after state is being changed to comply with what Trump wished had been existing law, which would have enabled him to stay in office regardless of election results, as far as his supporters can tell.

Which is why this latest obstruction of justice by Trump (disabling the FEC from performing any oversight function over elections or electoral campaigns until after he lost the election he “won in a landslide”) should be added to the long list and left to a jury, and the judges, to rule on, and without delay.

Anything less would amount to Obama’s “we, uh, tortured some folks” after Dick Cheney dragged America on his long, brutal trip to the Dark Side, cheered on by his lovely, torture-loving daughter Liz.

[1]

among the synonyms/common definitions for disingenuous:

insincere, calculating, deceitful, underhanded, hypocritical, duplicitous, sly, dishonest, pretending that one knows less about something than one really does, being a lying sack of shit, etc.

[2]

Landsberg, which was used for holding convicted criminals and those awaiting sentencing, was also designated a Festungshaft (meaning fortress confinement) prison. Festungshaft [de] facilities were similar to a modern protective custody unit. Prisoners were excluded from forced labor and had reasonably comfortable cells. They were also allowed to receive visitors. Anton Graf von Arco-Valley who shot Bavarian prime minister Kurt Eisner was given a Festungshaft sentence in February 1919.

In 1924 Adolf Hitler spent 264 days incarcerated in Landsberg after being convicted of treason following the Beer Hall Putsch in Munich the previous year. During his imprisonment, Hitler dictated and then wrote his book Mein Kampf with assistance from his deputy, Rudolf Hess.

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Very fine corporate persons

Corporations are people too, the U.S. Supreme Court says so, over and over. They have a right to speak on political matters, an unlimited one, beyond the First Amendment rights of the individuals who make up the corporation. They have a right to infinite wealth, if they can get it. They have a right to lock customers they injure out of the courts with clever, binding arbitration clauses, developed by legal geniuses like our current Chief Justice John Roberts. They have a right to use negotiated loopholes in the tax code to pay zero tax, no matter how many billions in profits they make. Some of the wealthiest, like the fossil fuel industry, get generous cash subsidies from taxpayers, . It’s easy to condemn some of their practices, heck, most of them, but try being a corporate person– not so easy.

From the New York Times, almost a year ago:

When Bayer, the giant German chemical and pharmaceutical maker, acquired Monsanto two years ago, the company knew it was also buying the world’s best-known weedkiller. What it didn’t anticipate was a legal firestorm over claims that the herbicide, Roundup, caused cancer.

Now Bayer is moving to put those troubles behind it, agreeing to pay more than $10 billion to settle tens of thousands of claims while continuing to sell the product without adding warning labels about its safety.

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Ten billion is a mountain of money, unless you do the math and view at it as a tiny percentage of Bayer’s profits (which I am too lazy at the moment to look up and calculate). Maybe the article sheds some light on this further down… no. But this will give a sense of scale:

Bayer, which inherited the litigation when it bought Monsanto for $63 billion, has repeatedly maintained that Roundup is safe.

I had a friend who spent years in federal court, on behalf of organic farmers Monsanto somehow countersued in connection with alleged unauthorized use of Monsanto products (which the organic famers hated, were suing to stop the use of and certainly had no motive to use themselves). Monsanto sent an army of brilliant lawyers, including one of Antonin Scalia’s spawn, to fight these cases brought by environmental groups trying to get the EPA [1] to enforce its laws against Monsanto. They fought most of the environmental suits to a draw. Monsanto has always been evil. Now they are owned by Bayer, which has also nakedly embraced evil whenever it had the chance.

When the massive work/death camp Auschwitz was constructed in occupied Poland after Mr. Hitler’s conquest of Poland, Bayer’s parent company, I.G. Farben (Bayer joined the giant chemical conglomerate in 1925), built a factory there, serviced by disposable prisoner workers they rented from the SS for $1 a day. The deal worked out great for pharmaceutical giant Bayer and also for the Nazis. Arbeit Macht Frei, indeed.

Of course, powerful corporate persons taking advantage of puny human persons is not limited to those who love the Nazi way of looking at things. The ostentatiously philanthropic billionaire Sackler family, certainly no Nazis, in the strict sense, (they’re Jewish) have done a lot of killing too, many tens of thousands of Americans have died at their own hands using Sackler products the Sacklers knew the dangers of — and lied about– as they aggressively distributed these powerful, highly addictive products — marketed as safe– under the corporate veil of Purdue Pharma. You can sue the hell out of Purdue, if you want, and they will declare bankruptcy (as they have) — but there seems to be no way to hold the Sacklers themselves responsible for decades of deliberate lying and tens, if not hundreds, of thousands of American deaths. The corporation did it, you see, not them! Only a small proportion of the $35,000,000,000 in Oxycontin profits the Sacklers made are reachable by prosecutors.

The great Bill Moyers once said “I’ll believe corporations are people when the state of Texas puts one of them to death.”

You don’t think a corporatist 6-3 Supreme Court majority, the last three selected directly from the corporatist Federalist Society list, plus a billion dollar army of professional lobbyists in Washington, makes all the difference in the world? Think again.

Headline news recently about corporate giant Facebook, the brainchild of the arguably psychopathic Mark Zuckerberg, one of our most stable and successful American geniuses, dithering about possibly banning Trump for life from the popular platform. After Facebook gleefully collected dump trucks of ad money in 2016, from bad actors, including big buys from Putin in support of Trump, and played a huge role in the political rise of Trump, and QAnon and other pernicious fever dreams of sick minds, they decided that in urging his most rabid fans to storm the Capitol and take care of the weak, disloyal Mike Pence, the former president had gone too far.

After arguing in Congress, during the lead up to the 2020 election, that Facebook wouldn’t stop false political ads because Americans are smart enough to separate truth from a torrent of targeted, self-reinforcing lies constantly beamed to their computers and phones, Zuckerberg vowed to do more to control the wild (and hugely profitable) flow of dangerous lies on Facebook.

Zuck, we should note, is the same cuck who seethed, during an in-house address to his executives that one recorded and released, that if the US government tried to regulate Facebook, if it threatened something as “existential” as his right to make as many additional unlimited billions as fast as possible, “YOU GO TO THE MAT” and call out your armies of litigators. You don’t want to sue the US government, God forbid, but every corporate person has its limits.

If corporate persons had faces, this would be what they’d look like

So “Facebook” decided yesterday to revisit the question of Trump’s lifetime ban from Facebook in six months, presumably once MAGA-man learns the lesson Senator Susan Collins earnestly promised us all he’d learned after his first impeachment trial, a trial that exonerated him of all wrongdoing as strongly as Bill Barr had, as Barr promised to do when auditioning, by legal memo dismissing the Mueller Investigation as a partisan stunt, for the job of enthusiastic Trump gunsel [2]. Six months to clean up his scandalous act, and, of course, Mr. Trump has given us all every indication that he can learn another trick besides the reflexive doubling down on self-serving lies he learned as an abandoned, enraged, born-entitled two year-old.

[1]

The EPA:

The Environmental Protection Agency ruled last year that it was a “false claim” to say on product labels that glyphosate caused cancer. The federal government offered further support by filing a legal brief on the chemical manufacturer’s behalf in its appeal of the Hardeman verdict. It said the cancer risk “does not exist” according to the E.P.A.’s assessment.

Then in January, the agency issued another interim report, which “concluded that there are no risks of concern to human health when glyphosate is used according to the label and that it is not a carcinogen.”

This week, a federal judge in California referred to the agency’s pronouncement when it ruled that the state could not require a cancer warning on Roundup, writing that “that every government regulator of which the court is aware, with the exception of the I.A.R.C., has found that there was no or insufficient evidence that glyphosate causes cancer.”

Critics have countered that regulators based their conclusions on flawed and incomplete research provided by Monsanto. Several cities and districts around the world have banned or restricted glyphosate use, and some stores have pulled the product off its shelf.

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[2] Dashiell Hammett (whose life would later be destroyed by the House Un-American Activities Committee*) snuck this one by the censors when he had Sam Shpade tell the heavy, in 1941’s The Maltese Falcon, to tell his gun-toting “gunsel” to back off. Hammett was referring to this definition:

Noun. gunsel (plural gunsels) (slang, dated) Synonym of catamite: a young man kept by an elder as a (usually passive) homosexual partner. (slang, dated) Synonym of bottom: a passive partner in a male homosexual relationship.

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The word today, of course, is defined: a criminal carrying a gun.

*The HUAC was created in 1938 to investigate alleged disloyalty and subversive activities on the part of private citizens, public employees, and those organizations suspected of having fascist or communist ties.

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Harkening back to that quaint, Hitlerian era, when patriotic Americans still opposed fascism, rather than opponents of fascism. From Wikipedia:

In 1939, the committee investigated people involved with pro-Nazi organizations such as Oscar C. Pfaus and George Van Horn Moseley.[15][16] Moseley testified before the committee for five hours about a “Jewish Communist conspiracy” to take control of the US government. Moseley was supported by Donald Shea of the American Gentile League, whose statement was deleted from the public record as the committee found it so objectionable.[17]

Is the US racist, a little?

Sekhnet and I found a wallet on the street the other night. I put the guy’s name and address into a search engine on my phone, and websites were eager to sell me his phone number, though I was not eager to pay the fee for what was, until monetized recently, free public information. 311 was no help, outside of suggesting we bring the wallet to the local police precinct. Sekhnet did exhaustive research when we got home, trying to contact the owner of the wallet, a 22 year-old — nada. The next day we drove over to his house, which was not far away, to give the kid back his wallet.

His house was located in a middle class neighborhood called St. Albans, which has long been home to financially successful Black Queens families. I recall as a boy going to visit a classmate whose father was an architect, they lived in a large house in St. Albans [1]. The daughter of the architect, Rani, had been recently admitted to my class, over the long, organized protests of local white racists. Our elementary school had been de-segregated two or three years earlier pursuant to the Supreme Court’s 1954 ruling that all public schools must be racially integrated with “all deliberate speed” — which in the case of PS178Q was about a decade and a half.

Yesterday was a beautiful sunny spring day, everything in bloom, the lawns green under brilliant sunlight. We found the address. I went to ring the bell, Sekhnet went to talk to the man working on the edge of the property. When Sekhnet told the man why we were there he said he was the kid’s father. I approached and filled in a few details.

“Oh, his girlfriend lives over there,” the father said, when I told him where on the service road we’d found the wallet.

Before turning over the wallet Sekhnet asked a clever question. “What is your son’s middle initial?” The man looked confused, hesitated. “I’m not good with that kind of thing, I don’t even… see him, I don’t even know his name,” he pointed to his other son, who laughed, and told Sekhnet “N”.

We stood there a moment (the kid wasn’t home, didn’t even know his wallet was missing) exchanging wallet-related pleasantries as the father, his other son and a smiling young woman thanked us. I mentioned that I still felt the pain, from 15 years ago, of losing my wallet, knowing the security guard who’d definitely found it, and being unable to prove it or get the wallet or any of its contents back.

The father, a small, wiry man with a Jamaican accent and dark brown skin, a mechanic and owner of the shop where at least one of his sons worked with him, nodded and told me he’d found a wallet outside of his shop one time. When he went to return it he got no thanks, only suspicion, the people treated him like he’d stolen it, wanted to know how he got the wallet. I looked into his reddened eyes as he said “that’s the last time I return a wallet. I’m going to leave the next one on the ground.”

Sekhnet and I, being two respectable-looking white people (looks are deceiving, in my case), could drive up to a home, walk into the front yard, return a wallet and be thanked, with grateful smiles all around. This guy, a successful entrepreneur who was living the American Dream, with his fine home, his grown kids hanging around as he worked on the property on his day off, was treated as a suspect when he went to do a good deed. The understandable pain in his eyes as he told me the little story had to be addressed.

“No, you did the right thing, you should do the same thing next time, you just met up with some assholes,” I said. He nodded at the word assholes, which his accusers no doubt were, he may have repeated the word.

What troubled me afterwards was whether I should have modified “assholes” as “racist assholes?” It seemed to go without saying, even if the assholes he was returning the wallet to were “nonwhite”. The reality for this hardworking American taxpayer is that he is a hundred times more likely to be confronted by this kind of asshole than somebody like me, a shiftless daydreaming bum born with “white” skin and a free pass not to be profiled by racists, is.

Do we have widespread racist assumptions here in the land of the free and the home of the brave? Is the Pope Catholic? Do Donald Trump and Lindsey Graham bend the truth?

That night I read this excellent op-ed (below), which makes short work of the asshole argument that there is no racism built into our culture. “Nothing systemic,” insist brazen professional liars like South Carolina’s morally dextrous Lindsey Graham, senator from one of two states that had Black majority populations during the Confederacy (Mississippi was the other, Louisiana was close to 50/50 in the 1860 Census). Graham’s South Carolina colleague, the Republican party’s lone black senator (the Democrats currently have two, 4% of their caucus, Booker and Warnock, two of eleven Black senators from either party over the centuries) [2], made the same point, when he spoke to the nation to rebut Biden’s recent address to Congress.

“Red” states across the country are now in the process of mandating a curriculum for public school students that stresses the uniqueness, freedom and equality of America and its unity, and specifically disallows teaching “controversial” subjects, like slavery, in a way that makes us look bad, and ordinary, and not like an Exceptional Shining Nation on A Hill. This plays strongly to the right-wing base in the all-too familiar double down on demonstrable bullshit for which their recent master is so rightfully famous.

Trump’s Department of Education formed the 1776 Commission, to respond to, and refute, the documentation of America’s long history of racism contained in the 1619 Project published in the NY Times. The first slaves arrived here in 1619, a year before the famous Mayflower brought persecuted, intolerant English Puritans to Plymouth Rock.

The 1776 Commission produced a draft of its democracy-embracing patriotic curriculum, right before Trump reluctantly allowed a peaceful transition of power after the rigged stolen election, and released the report on Martin Luther King, Jr. Day, for good measure (in your face, Black racists!). The report strikes back forcefully at the Civil Rights bullies that tyrannize the persecuted, beleaguered “whites” of MAGA nation.

The short report could have been written by Secretary of Education Betsy DeVos herself, it was so detailed, so vague, so idiotic and clueless a denial of reality. Biden immediately disbanded the “commission” and removed the report, a piece of white supremacist propaganda citing the New Testament as its ultimate source of authority, and America’s moral strength, from the government website.

Here is just a piece of its inspirational message:

“The principles of equality and consent mean that all are equal before the law. No one is above the law, and no one is privileged to ignore the law, just as no one is outside the law in terms of its protection.”

A principle we saw demonstrated over and over during the presidency of Donald J. Trump.

You can read more about the 1776 Commission’s patriotically revisionist message here.

I’ll give Charles M. Blow the last word on this “controversy”

Is America a racist country?

Last Sunday, Senator Lindsey Graham of South Carolina added himself to the long list of Republicans who have denied the existence of systemic racism in this country. Graham said on “Fox News Sunday” that “our systems are not racist. America’s not a racist country.”

Graham argued that the country can’t be racist because both Barack Obama and Kamala Harris had been elected and somehow, their overcoming racial hurdles proves the absence of racial hurdles. His view seems to be that the exceptions somehow negated the rule.

In the rebuttal to President Biden’s address to a joint session of Congress, the other senator from South Carolina, Tim Scott, the lone Black Republican in the Senate, parroted Graham and became an apologist for these denials of racism, saying too that the country wasn’t racist. He argued that people are “making money and gaining power by pretending we haven’t made any progress at all, by doubling down on the divisions we’ve worked so hard to heal.”

Scott’s argument seems to leave open the possibility that America may have been a racist country but that it has matured out of it, that it has graduated into egalitarianism.

I personally don’t make much of Scott’s ability to reason. This is the same man who said in March that “woke supremacy,” whatever that is, “is as bad as white supremacy.” There is no world in which recent efforts at enlightenment can be equated to enslavement, lynching and mass incarceration. None.

It seems to me that the disingenuousness on the question of racism is largely a question of language. The question turns on another question: “What, to you, is America?” Is America the people who now inhabit the land, divorced from its systems and its history? Or, is the meaning of America inclusive of those systems and history?

When people say that America is a racist country, they don’t necessarily mean that all or even most Americans are consciously racist. However, it is important to remember that nearly half the country just voted for a full-on racist in Donald Trump, and they did so by either denying his racism, becoming apologists for it, or applauding it. What do you call a country thus composed?

Historically, however, there is no question that the country was founded by racists and white supremacists, and that much of the early wealth of this country was built on the backs of enslaved Africans, and much of the early expansion came at the expense of the massacre of the land’s Indigenous people and broken treaties with them.

Eight of the first 10 presidents personally enslaved Africans. In 1856, the chief justice of the United States wrote in the infamous ruling on the Dred Scott case that Black people “had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect.”

The country went on to fight a Civil War over whether some states could maintain slavery as they wished. Even some of the people arguing for, and fighting for, an end to slavery had expressed their white supremacist beliefs.

Abraham Lincoln said during his famous debates against Stephen A. Douglas in 1858 that among white people and Black ones “there must be the position of superior and inferior, and I, as much as any other man, am in favor of the superior position being assigned to the white man.”

Some will concede the historical point and insist on the progress point, arguing that was then and this is now, that racism simply doesn’t exist now as it did then. I would agree. American racism has evolved and become less blunt, but it has not become less effective. The knife has simply been sharpened. Now systems do the work that once required the overt actions of masses of individual racists.

So, what does it mean for a system to be racist? Does the appellation depend on the system in question being openly, explicitly racist from top to bottom, or simply that there is some degree of measurable bias embedded in those systems? I assert the latter.

America is not the same country it was, but neither is it the country it purports to be. On some level this is a tension between American idealism and American realism, between an aspiration and a current condition.

And the precise way we phrase the statement makes all the difference: America’s systems — like its criminal justice, education and medical systems — have a pro-white/anti-Black bias, and an extraordinary portion of America denies or defends those biases.

As Mark Twain once put it: “The difference between the almost right word and the right word is really a large matter. ’Tis the difference between the lightning bug and the lightning.”

Being imprecise or undecided with our language on this subject contributes to the murkiness — and to the myth that the question of whether America is racist is difficult to answer and therefore the subject of genuine debate among honest intellectuals.

Saying that America is racist is not a radical statement. If that requires a longer explanation or definition, so be it. The fact, in the end, is not altered.

[1]

The visit was memorable because it was the first time I heard a wah-wah guitar (on a Temptations track, Cloud Nine or Runaway Child) — which excited me greatly– and the first time I saw girls dancing in a way that also filled me with excitement, though I wasn’t sure exactly why. My classmate’s little brother and I kept smiling at each other and replaying the record, to keep them dancing.

[2]

And check out African-American P.B.S. Pinchback, who would have made an even 12 all-time Black Senators, elected by Louisiana in 1873, but denied his seat, as these things happen. It should be noted, the current Senate has the all-time record for Black Senators at one time, with three.

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Visual Argument makes strong case for January 6 Commission

Vice News compiled a visual timeline of January 6 in a recent video piece they describe this way:

This treatment of the insurrection recreates the attack moment by moment, tracking the protesters mounting agitation and rage, and some rioters breaking into various fronts of the U.S. Capitol, eventually marching the Confederate flag into the building and occupying the halls of Congress.

It also reveals the diverse and competing ideologies that coalesced on Jan. 6: angry Trump voters marched alongside sovereign citizens, Three Percenters, Proud Boys, and Christian Nationalists. Some rioters demonstrated solidarity with the police as others brutally assaulted officers.

The film highlights moments within the mayhem that add to the complexity of our understanding of the attack. It enables viewers to feel what it was like to be drawn into participating in this event.

In this 45-minute film we see how the false narrative of electoral fraud that was stated and restated by former President Donald Trump led thousands of Americans to attack their own Capitol, and the unprecedented violence that left hundreds injured, five dead, and a shaken democracy.

Read more about the project here: https://www.vice.com/en_us/article/pk… [1]

The piece starts with cellphone video of a plane full of enthusiastic Trump supporters en route to D.C. from Tampa. All of the video is from public broadcasts and footage shot by demonstrators and others on the ground before, and during, the January 6 MAGA riot at the Capitol. When I clicked on it on my phone the other night, YouTube gave me this warning.

Kind of an ambiguous statement, I thought. Confirm that some audiences found this inappropriate or offensive?

“Inappropriate” to “some audiences”– like very soft core child pornography lite, tastefully shot and without nudity, a Ku Klux Klan video purporting to lay out the truth about America’s race problem?

“Offensive” — like a video convincing the credulously angry that America is in the grips of a vast cabal of Satanist Democrat [sic] cannibal pedophiles who drink the adrenalized blood of the children they torture and terrify before slaughtering?

I think YouTube could have better chosen its warning. Perhaps: this video contains upsetting images of explicit violence and instances of very coarse fucking language.

The all-purpose, nonjudgemental YouTube warning was made a tiny bit more explicit today, covering the blacked out video screen on my computer and offering me a reasonable choice to click on:

Less than a half hour later (since I did the screen capture above) YouTube changed the designation and warning. If you verify that you’re over 18 you can click on the video below, which I recommend watching at 1.5 speed (you won’t miss anything), if you have the stomach to proceed beyond the first minute or two.

I’m about 13 minutes in, so far (watching at 1.5 speed), and have no doubt that this documentation is all that’s needed to establish the urgent need for a January 6 Commission.

We don’t even need the additional damning, un-contradicted facts raised at Trump’s second impeachment, the $50,000,000 in ad buys to promote the false and incendiary message that Biden stole the 2020 election, the $3,500,000 in dark money to organize and promote the March for Trump to Stop the Steal that led, inexorably, to the riot. Just watch the video with your eyes and ears open. It’s like watching the slow killing of George Floyd.

Nothing controversial about the need for a January 6 Commission, my fellow cucktards, unless you stand to be prosecuted for your role in it, or your party’s electoral chances could be hurt by a report outlining the vast scope of the GOP’s unified, historically unique (and ongoing) attempt to block the peaceful transition of power in our fragile experiment in democracy, after a fair, historically high participation election their candidate lost by an indisputable margin.

“Indisputable” of course, now being in contentious dispute … by influential lawmakers and right-wing media pundits, men and women of unimpeachable honor and love of country. Check them out:

To speed it up, click the settings wheel, bottom right, and change playback speed. You’ll thank me for it.

[1]

From that article:

This film also reflects the years of groundwork laid by Trump and his staffers that ultimately culminated in the insurrection. In 2015 on the campaign trail, he falsely claimed that elections are rigged and the only way he could lose would be through systemic voter fraud. He said it again in 2016 when he won. He repeated it throughout his presidency. And he claimed fraud again—and again, and again—when he lost.

“All of us here today do not want to see our election victory stolen by emboldened radical-left Democrats, which is what they’re doing,” Trump said during his January 6 speech.

“We will not take it anymore, and that’s what this is all about. And to use a favorite term that all of you people really came up with: We will stop the steal.”

source

Justice, when racist culture warriors run the Department of Justice

I must point out two things — the incredible restraint of the peaceful Black protesters at the scenes of several police killings of unarmed Black citizens SINCE Derek Chauvin was found guilty of murder in an incident Minneapolis police originally headlined “Man Dies After Medical Incident During Police Interaction.”

The restraint of the Black community seems superhuman to me, at a time when we have a seemingly decent man as the president and now daily police killings of unarmed civilians, disproportionately Black and brown, that police departments in many cases immediately justify in public relations campaigns and do their best to cover up.

The other thing to note is that the Department of Justice was specifically created to bring justice to the victims of racism. It was established pursuant to the Fourteenth Amendment that extended the constitutional freedoms of the Bill of Rights to every person born in America, all citizens.

The DOJ was tasked with supervising the states, particularly the former slave states that had taken up arms against the US government, to ensure that former slaves (soon to be victims of a hundred years of Black Codes, lynching and deprivation of rights under “Separate but Equal”) had the constitutional protections of the federal government.

The Supreme Court stepped in, within a few years, to effectively nullify the Fourteenth Amendment, putting it into a judicially induced coma that lasted for almost a century. A political compromise that settled the close 1876 presidential election resulted in the end of Bayonet Rule (federal enforcement of the Fourteenth Amendment) and the return of Home Rule, by white supremacist “Redeemers,” the former Confederate leaders.

During that long century of unpunished terrorism there was no federal protection against racist or otherwise oppressive state action, what became known as civil rights violations. Enforcement of all laws was at the discretion of each of the United States, as though the constitution had never been amended by the Fourteenth Amendment.

Nowadays, after a century of blood, activism, organizing and court victories against white supremacist terrorism and racially discriminatory practices across the nation, the Fourteenth Amendment is back. Citizens can go to federal court to seek redress of grievances against their state under the constitution.

The Department of Justice, we see, changes, sometimes radically, with every administration. Regard for the spirit and letter of laws enforcing equality of citizens comes and goes with the strong opinions of the Executive.

Trump’s Department of Justice abdicated all federal responsibility for overseeing even overtly racist police departments. Recall the grim determination of Trump’s first Attorney General (followed by his evil second A.G.) to keep American policing strictly in local hands. Jefferson Beauregard Sessions III (Trump’s first senate supporter, a man deemed too racist to be appointed to the federal bench, imagine that) insisted “it is not the responsibility of the federal government to manage non-federal law enforcement agencies.” The diminutive racist:

made clear he believed policing should be left to local and state law enforcement bodies, no matter how brutally they treated black and other minority citizens supposedly under their protection.

source

Bagpiper Bill Barr, Trump’s provocative, partisan culture warrior gunsel, who replaced the “weak” and “disloyal” Sessions as Attorney General, agreed 100% and was even more proactive in his partisan and race-baiting attacks. Antifa and Black Lives Matter, he insisted, are the problem (also mail-in ballots were an “obvious” invitation to massive voter fraud), not heavily armed white militias exercising their protected First and Second Amendment rights to resist the tyranny of pandemic precautions, or local and federal police simply doing their best to keep the peace, doing their difficult, thankless jobs in a nation overrun by savage, vicious, terrorist haters.

It should be noted that the fat, pugnacious fuck resigned before the actual insurrectionist “poop” hit the fan in the weeks leading up to Biden’s inauguration. Barr may be enraged at disrespectful liberals, atheists, humanists and so on, but he’s not going to prison behind that rage.

Barr consistently did major damage for his master, spun whatever Trump wanted as perfectly legal and proper and justifiable, using legal quibbles like “material lie” to exonerate Trump allies who’d lied under oath to protect their boss. Other times, Barr was right in your face.

Remember his December 3, 2019 speech at the Department of Justice when he pointedly reminded Black people that if they want police protection, (Barr at his deniable best– he never singled out Black communities by name!), they’d better start respecting and obeying [1] the police.

Today, the American people have to focus on something else, which is the sacrifice and the service that is given by our law enforcement officers. And they have to start showing, more than they do, the respect and support that law enforcement deserves. And if communities don’t give that support and respect, they might find themselves without the police protection they need.

source

“Nice little family you got there, shame if anything happened to ’em.” [2]

It is encouraging to have a Justice Department that is now looking into what appears to be a pattern and practice of corrupt and selective prosecutions by the Executive branch under America’s Greatest Winner President, Donald J. Trump, and his smugly bullying gunsel Mr. Barr.

We learn from the recent execution of search warrants against another of Trump’s personal lawyers, that Barr kept a lid on the investigation into Rudy Giuliani’s mad attempts to make money and keep the far right in power by spreading Russian propaganda leading up to the election and meddling in every other possible way. After all, Barr must have reasoned, what’s really the big deal about helping the president in an arguably shady effort Trump wasn’t even convicted for when a politically motivated impeachment was brought against him? More to the point, investigating an ally of the president was absolutely and completely within Barr’s discretion, as top US law enforcement official.

It’s not like Mueller got the truth out of Manafort or Stone in time to prove beyond a reasonable doubt that the Trump campaign had been in an actual criminal conspiracy with Russia. We now know that Manafort gave critical polling data to the Russians so they could help Trump win the Electoral College in 2016. We also know Stone, among other unsung services to his far-right colleagues, worked with Wikileaks on the timing of revelations harmful to Hillary Clinton’s campaign. Some of us know it, anyway — there are millions who believe the whole thing is a hoax on top of a lying liberal hoax. And that storming the Capitol to stop these election-stealing murderers is more than justifiable, it was patriotic.

God bless these United Shayssssh.

[1]

I know, I know, Barr said “support” not “obey” but these pricks always dogwhistle in easily translatable code.

[2]

I see in finishing the article I got Barr’s quote from, that Adam Serwer (staff writer for The Atlantic) put it even better, in a tweet (from December, 2019, mind you):

Bill Barr, almost verbatim: “nice community you got there. Shame if something happened to it because you said the police shouldn’t murder innocent people.”

11:32 PM · Dec 3, 2019

Liz Cheney posed the proper constitutional and practical questions to her Trumpist colleagues 3 days before the January 6 MAGA riot

Leading up to, and even immediately after, the Trump-donor funded MAGA rally, and separate subsequent march to and riot at the Capitol on January 6, loyal Trumpists with presidential ambitions, like senators Lyin’ Ted Cruz (R-Texas) and rioter high-fiver Josh Hawley (R-Missouri), were holding up the certification of Biden’s victory and calling for the formation of a commission to investigate why millions of Americans believed allegations of widespread voting fraud that may have, quite possibly, led to Joseph R. Biden being able to steal the election from Donald J. Trump.

These senators, and their indignant counterparts in the House, kept insisting “we’ll never know who the real president is, unless there’s a commission to revisit every faulty or corrupt bipartisan state recount and each of the dozens of unfair court decisions from judges prejudiced against Trump … unless we form a commission to study this, America will never know who our real president is!”

We know who the real president is. But tens of millions of Americans, for some reason, believed (and still believe) the Big Lie (which 2/3 of Republicans polled spontaneously appear to regard as the Big Truth) about widespread voter fraud that led to the theft of an election, and so seven Trump supporters in the Senate, and 140 in the House (including ‘March for Trump’ speakers Madison Cawthorn and Mo Brooks, both of whom gave stirring speeches right before the riot), contested the awarding of Electoral Votes to Biden and called for a commission to figure out exactly how the Democrat [sic] party pulled off this slick, massive, historically unprecedented voter fraud. In service of Trump’s lie about a rigged, stolen election, they called for the formation of a commission, before any Electoral College votes were made official.

To which uber-conservative Liz Cheney (R-Wyoming) responded, on the first page of her long January 3 memo to her anti-reason caucus:

The recent proposal for a new “Commission” is even more problematic [than Congress overruling state determinations about Electors]. It is not reasonable to anticipate that any commission so formed could wrap up its work in 10 days; indeed, the subsequent debate at both the state and federal level would likely require months. Did those proposing a new commission realize that they were in essence proposing to delay the inaugural? Did they mean to set up a new future precedent where the inaugural is delayed and we have an “Acting President?” For how long? Who decides when that process is over? Will that require another Act of Congress? Could the Acting President veto any such future Congressional action? If Congress has authority to create such a commission now, are state elections, recounts and state law legal challenges just “make-work” until Congress gets around to investigating and deciding who should be President? Members who support the new commission proposal may need to answer each of these questions. And in particular, Members should be prepared to answer how such a commission would be justified by the actual text of our founding documents.

source

No wonder the Wyoming Republican Party censured Cheney! Many want more fitting, more consequential, punishment than censure — she should be primaried, tarred, feathered and drummed out of the Grand Old Party! What kind of goddamned stupid, counterproductive questions are those, at a time when a rigged election has been brazenly stolen, when Black Lives Matter rioters — and antifa terrorists — are burning down the country in a reign of terror as power-mad pedophile cannibals drink our children’s blood and laugh at us while patriotic white militias do their best to hold off the violent non-white hoards?!!!!

Is there a single coherent answer to ANY of the questions Liz Cheney raised in her memo three days before the widely supported MAGA riot? I address this question to the 147 Trumpist Congress members who voted to block the certification of the 2020 presidential election on the grounds of massive fraud Trump claimed, without proof (and advertised to the tune of $50,000,000), had happened everywhere he “lost”. Their answer, of course, is a united “fuck you, Democrat [sic] party! Fuck you, Liz Cheney!”

Right-wing culture of cruelty

In 2013 Bill Moyers had a guest, Henry Giroux, who made an excellent and depressing case for America’s Culture of Cruelty [1]. In a materialistic society that monetizes everything and reduces every encounter to a transaction over monetary value, where the super-wealthy consolidate ever greater say in our laws, most of us are expendable, worth only as much as our net worth. Cruelty may be carried out with impunity against people without economic or political power, that’s what “winners” and “losers” is all about. That’s just the sad reality, for losers — winners get rewarded, losers lose, no mystery there.

America, with our divisive, concession-free, attack ad-based politics, is no less cruel as a culture in 2021, despite the growing humane impulse of many of us in the face of cascading evidence of brutal inequality, and outright state brutality, during a deadly pandemic that calls on each of us to summon our higher natures, to consider others, to finally end these ongoing plagues.

Instead, we have unified, irrational, bare knuckled political calculation in the GOP’s uncompromising resistance to voting for even a long overdue Covid-19 relief bill. The GOP is united in refusing to endorse vaccines and basic safety precautions, on the depraved theory that if there is less misery in the country and less Americans die of the pandemic it will make Biden and his Democrat [sic] party look good and hurt Republican chances at the polls in 2022.

People rightfully fear cruelty, particularly when it has the power to harm behind it, hence the vindictive Trump’s continued hold on the party he took over after humiliating and exhausting all opponents to win the nomination and the Electoral College in 2016. He has demonstrated over and over his zeal to punish, to make examples of, to humiliate, to pardon friends and attack and vilify enemies.

Predictably, and depressingly, the 6-3 right-wing Supreme Court that McConnell orchestrated (it would be 5-4 today if Merrick Garland had had a hearing and confirmation vote in 2016), with the three Koch-vetted and dark-money supported extremists appointed by Trump, is marching ahead with quiet, decisive cruelty.

The other day Brett “Boof” Kavanaugh authored a 6-3 decision making the law of the land that teenagers convicted of violent crimes can be imprisoned for life without the possibility of parole, as long as a judge exercises “discretion,” considering the sentence and deciding it’s appropriate.

Ruth Marcus, writing in the Washington Post, in an op-ed called At the Supreme Court, a tale of two Bretts:

Supreme Court Justice Brett Kavanaugh has enjoyed a life of comfort and privilege, the son of a Beltway lobbyist and the product of the Ivy League. Mississippi prisoner Brett Jones has endured a life of misery and abuse, the son of an alcoholic father who brutalized his mother and a stepfather who beat him.

As fate would have it, their lives converged this week: In an opinion released Thursday, Brett Kavanaugh upheld Brett Jones’s sentence to life in prison without the possibility of parole for killing his grandfather just 23 days after his 15th birthday. (And, yes, let us pause here to note a certain irony in the fact that the opinion was written by a justice whose confirmation hearings featured discussion about how people can change after high school.)

The 6-to-3 ruling in Jones v. Mississippi was notable not only for the juxtaposition of the two Bretts. It offered a snapshot of a court transformed by the arrival of Kavanaugh and two other conservative justices named by President Donald Trump. And it demonstrated how a conservative majority bent on reshaping the law can do so without the showy fanfare of explicitly overruling precedents.

source

According to the punitive right, rehabilitation and personal growth are myths, when applied to poor people. A fifteen year-old with a history of abuse, from a family of limited means, convicted of murder, sentenced to life without parole, just has to continue to be punished, without hope of anything beyond a long prison life, no matter what profound changes he may have undergone while locked up. Fair is fair.

A fifteen year-old from a wealthy family must not be made to unduly suffer, must not have his life “ruined” decades later by being confronted with his unfitness for a Supreme Court seat, for creepy things he was credibly accused of doing at that immature age.

Kavanaugh’s personal unfitness to serve on the Supreme Court was not only his failure to accept responsibility for his youthful bad behavior, it was even more powerfully demonstrated by his angry, tearful, paranoid partisan screed about a cabal of Clinton-assassins and powerful Jews intent on lying about him and spending millions in dark money to keep him off the nation’s highest court, thereby ruining his life [3].

The right is always supremely generous extending mercy and understanding to their own in this game of cruelty. After all, who among us, at a tender age, has not drunkenly fallen on top of a cute much younger girl, in a locked room, started groping her and been too drunk to actually recall it years later? Could happen to anybody at Georgetown Prep! And, besides, it’s totally, totally different from killing someone at fifteen just because you were “abused” by your stepfather.

Makes me think of that study of political orientation that was done a few years ago. Liberals tend to be optimists about human nature, conservatives are pessimists. Liberals skew toward forgiveness and permissiveness, conservatives toward retribution and punishing. Liberals tend to seek to understand the reasons for violence and strategize about how to change conditions that produce it, conservatives prefer to keep things exactly as they are and harshly punish those who deserve it.

Boof Kavanaugh, who deliberately lied several times during his confirmation hearing (including about the definition of “boof” on his elite prep-school yearbook page– everyone knows it’s having a tube inserted into your ass and having vodka poured in — Boof said it was an inside joke about his flatulence, LOL!), and was voted into his lifetime post by a party-line 50-48 vote, the smallest margin since 1881 [2] (and only after McConnell nuked the filibuster for Supreme Court nominations to allow an up or down vote), is a mean son-of-a-bitch, no matter how many millions in public relations dollars from dark money sources went into crafting the image of the gentle, woman and girl protecting junior high school girls’ basketball coach and religious churchgoer during the bitter fight for his nomination. Recall that the Jesuits of America eventually called for the religious Catholic Kavanaugh to withdraw his name from consideration, and that instead he angrily and tearfully cited a vast, evil left-wing conspiracy, in his defense of not having his life ruined by liars.

Here’s what the face of that gentle man, and supremely qualified, unbiased right wing lifetime justice, looked like, when he was challenged by liberal partisans during his confirmation hearings. It is the entitled face of our culture of cruelty.

Brett Kavanaugh testimony – viral photo captures 'horrified' faces of women  behind tearful judge as he denies sex attack claims

[1] Giroux writes:

… a growing culture of cruelty brought about by the death of concessions in politics — a politics now governed by the ultra-rich and mega corporations that has no allegiance to local politics and produces a culture infused with a self-righteous coldness that takes delight in the suffering of others. Power is now separated from politics and floats, unchecked and uncaring.

source

[2] The article linked above notes:

Two of the oldest justices on the court — Stephen Breyer and Ruth Bader Ginsburg, both nominated by President Bill Clinton — were confirmed with near-unanimous support that would seem nearly impossible today. Breyer was confirmed in 1994 with an 87-9 vote; one year earlier, the Senate confirmed Ginsburg 96-3.

source 

[3] Part of the remarks that he claimed to have written himself, that should have disqualified him for his Supreme Court position, particularly since millions in right-wing “opposition group” money supported the well-organized (calculated and orchestrated, one might say) campaign to put him onto the court:

Federal vs. State Rights

In our federal republic, established by our Constitution, government power, unless explicitly granted to federal authorities, is presumed to be under the exclusive control of the state governments. The Tenth Amendment, the last provision of the Bill of Rights, reads: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. Under our federal system every state has its own marriage laws, criminal codes, family law, business laws, voting laws, gun laws, abortion laws, drug laws, capital punishment laws, etc.

The legal wrangling over States’ Rights vs. Federal enforcement of citizens’ rights has a long and sordid history in the US, during which federal enforcement of civil rights (guaranteed in the post-Civil War Constitution) have often been denied to selected groups of citizens (usually “non-white” groups). This continuous effort by states to restrict the rights of certain citizens is rearing its hideous, often irrational head as I write these words. 60% of American state legislatures are currently ruled by Republicans, after a fifty year effort to gain control of state governments and the federal courts by conservative groups funded by billions in largely “dark money”.

Those who argue for inviolable States’ Rights can rest their argument firmly on the Tenth Amendment, although they had a much stronger argument for it before the Civil War. and the resulting constitutional amendments that were added to the U.S. Constitution. These changes to the constitution were intended to increase liberty and justice for all and create a federal guarantee of these new rights.

Four score and seven years after the founding of the United Sates an American civil war raged, following the secession of one third of the then-existing states, over the issue of States’ Rights, specifically, a state’s right to decide if a sizable percentage of its population would have only the same rights as cows, pigs, donkeys, chickens, hunting dogs and other chattels.

After that long, bloody war, slavery was definitively abolished throughout every state in the Union (except as punishment for those duly convicted of any of the new, targeted crimes, like the enhanced “anti-vagrancy” laws that affected mostly former slaves and returned them to unpaid bondage). Following the Civil War, Congress passed three amendments to establish in law what had been contested by the Confederacy in a hard fought war — that race is not grounds for enslavement or inferior treatment under law.

The thirteenth, fourteenth and fifteenth amendments outlawed slavery [1], guaranteed federal enforcement of due process of law and equal treatment under the law, and extended voting rights to men formerly enslaved. The devastated states of the former Confederacy were required to sign on to these amendments as a condition for re-entering the Union (and receiving federal funds to rebuild their shattered infrastructure.)

The federal government made sure to reserve its right to enforce the 14th Amendment, a right that explicitly superseded the power of any state on matters covered by the newly amended constitution — as required by the 10th Amendment. The last section of the 14th amendment explicitly states that Congress may make any laws necessary to enforce the guarantee of due process of law and equal rights to all Americans, regardless of what state they lived in.

One equality-enhancing innovation that flowed from the 14th Amendment was Congress’s creation of the Department of Justice in 1870, to enforce newly universal civil rights for all citizens, now constitutionally defined as anyone born in the USA. The 14th Amendment was ratified after president Andrew Johnson vetoed the Civil Rights Act of 1866, on the grounds of white supremacy.

The first post-war civil rights act was enforced only haltingly and was soon written out of law by the Supreme Court’s absurdly narrow interpretation of the 14th Amendment [2] and later rulings upholding segregation. The idea of civil rights for Blacks was a dead letter in many states for generations, until The Civil Rights Act of 1964 again made it possible for individuals to enforce those rights in federal court. The Civil Rights Act only became law after decades of organizing, activism and struggle against often violent racism at law, efforts that culminated in the Civil Rights Movement of the 1950s and 60s. Democratic president Lyndon Johnson knew that signing the Civil Rights Act would turn the white south solidly Republican, which it remains to this day. He hoped that the Voting Rights Act of 1965 would level the playing field in those states, by allowing Blacks to register and vote in large numbers.

There are many devilish details in how the Supreme Court, Congress and the States spun the 14th Amendment, and more than one civil rights act, into oblivion. One of the most infernal examples is how quickly and efficiently several judges on the Supreme Court wrote the protections of the 14th Amendment out of law, for individuals (corporate persons continued to make good use of it during the first Gilded Age and beyond) during its almost century long judicially-induced coma. In the years from 1873 to 1963 no citizen, outside of corporations, was able to vindicate their civil rights under the 14th Amendment. The amendment that was supposed to provide access to the federal courts for citizens denied basic civil rights by their state government took a century long nap and the doors of the federal courts were closed to any persons not corporate in nature.

These maneuvers by federal judges and federal and state legislators allowed many of the worst evils of slavery to persist virtually unchanged for a century of winked at white supremacist violence after the Peculiar Institution was legally abolished. The Ku Klux Klan Act, which after vigorous enforcement by the new DOJ actually shut down the Klan for a short time, was quickly abandoned in a political compromise over the close presidential election of 1876, Reconstruction officially ended and law enforcement was left solely to state and local officials in the former Confederacy. Then, a century of Klan rule in many places.

None of the Congressional shenanigans over the course of that unjust, murderous, openly racist century would have been possible without the Senate filibuster and the steady, impartial hand of the Supreme Court, deciding case after landmark case that enforced segregation and other forms of unequal treatment under the law as matters of States’ Rights.

The filibuster was regularly used by a racist minority to block any law that would allow federal oversight of a state’s discriminatory racial practices. The 14th Amendment, which is now recognized as applying the protections of the Bill of Rights to the citizens of every state against infringement by their state, gave the federal government jurisdiction over the enforcement of civil rights. Enforcement of civil rights for millions of our newest citizens was the primary mission of the Department of Justice, at least for its first few years of existence. (Compare, for example, the recent policies and actions of the DOJ under the racist Jeff Sessions and unapologetic, pugnacious right-wing provocateur Bill Barr — read that ten month old article on Barr’s treachery in light of the Chauvin conviction for murder and the Big Lie about the rigged, stolen 2020 election, yikes)

The facially non-racist mantra of the filibusterers is always bipartisanship and “States’ Rights,” an impartial, hallowed, constitutionally endorsed doctrine expressing an understandable preference for local sovereignty and freedom from a central government “bureaucracy”. States’ Rights, its inconstant advocates always insist (on certain issues — abortion, marijuana, gay marriage — the same people insist federal bans should prevail), has nothing whatsoever to do with race, however disgruntled angry Black, brown and anti-racist white citizens might otherwise feel about it.

At the troubled heart of the States’ Rights argument is the unspoken, eternal question of who, in each state, actually gets the right to have a say about those rights and who in the state will enjoy them. The phrase is one of those glittering generalities, used to justify all sorts of devilment, like “Freedom is on the March” (shock and awe, Iraq), “Manifest Destiny” (ethnic cleansing of indigenous people and free land to pioneers) and “Liberty and Justice for all” (play ball!)

States’ Rights is really an argument for keeping the power relations and status quo firmly in place. “Local Rule” is an argument against change of any kind, unless it is to criminalize political protest, further suppress voting, harshly punish the users of certain drugs, and their families, ensure that partisan officials can overrule election results they don’t like, as many GOP state legislatures are now doing.

States’ Rights, the right of a free people to local sovereignty, has also long been advanced by historical revisionists as the sole reason why the states of the former Confederacy seceded from the Union. The Civil War had NOTHING to do with slavery, y’all, in spite of what the Articles of Secession of each state may have said about the constitutional right to own and breed slaves free from federal government tyranny.

Senator Strom Thurman (racist, segregationist father of a black daughter) heroically filibustered for almost twenty-four hours to block the Civil Rights Act of 1957. More than twenty bills to make lynching a federal crime were killed by filibusters over the years, most recently less than a year ago by fucking Rand Paul. Racist obstructionists constantly blocked any bill that would have made racist practices — like unpunished racist terrorism or openly restrictive race-based voting laws finally eliminated by the Voting Rights Act of 1965 — federal crimes that could be enforced by the Department of Justice rather than by the otherwise sovereign and impartial states of Mississippi, Georgia, Florida, Louisiana, Alabama, South Dakota.

Americans do not know this history. Many barely recall the horrific videos of the bloody insurrectionist riot at the Capitol that took place only three months ago. Imagine if Mike Pence and Nancy Pelosi had actually been captured and executed, as the crowd that breached the Capitol announced its intention to do.

Wait…wasn’t that a peaceful and legal demonstration by patriots rightfully outraged at massive Democrat [sic] voter fraud that stole the election from Mr. Trump? Weren’t those loyal, peacefully assembling patriots set up to look violent, and make Trump look bad, by Black Lives Matter and anti-fa? If we allow a commission to investigate the so-called Trump riot, claim proponents of the stolen election, don’t we have to investigate Black Lives Matter and antifa and their raging riots last summer, claiming George Floyd and a handful of others had been “murdered” by police? Why do Blacks and anti-fascists always get off the hook for their terrorism? (One possibility, there is no evidence that either group engage in the kind of organized, deadly, terroristic violence we saw at the Capitol where police were attacked and 140 officers were seriously injured, along with $30,000,000 of damage to federal property. The vast majority of those arrested in connection to Barr/Trump’s militarized federal crackdown on both groups last summer had all charges against them dismissed, almost a year later).

I am interested in history, read history books and articles about history and law, as well as historian Heather Cox Richardson’s nightly newsletter, and I had little grasp of the legal underpinnings for a century of open racism at law until I went to law school and learned about the Constitution and Supreme Court precedents in detail.

Did you know, as I learned in first year “Con Law”, that virtually all of the early federal civil rights cases were brought under the “commerce clause” a few words in the Constitution that gives the federal government jurisdiction over interstate commerce? A segregated restaurant in Georgia that served potatoes shipped from Idaho? Interstate commerce, yo, here come the federales. As a public accommodation, post Brown v. Board, you’ve got to serve everybody, or you’re in violation of the commerce clause… chump.

All Americans know that slavery was abolished after the Civil War, the constitution was amended — but how did this ongoing shit — racist voting laws, unaccountable Klan lynching for a century of “Separate but Equal”, the huge wealth gap between whites and Blacks, disparate treatment under the law for whites and people of color, disproportionate, unpunished police violence — actually happen?

States’ Rights, my friends, and a federal government obstructed at every occasionally well-meaning turn by committed zealots, halted in its tracks from enforcing the plain intent of the framers of the 13th, 14th and 15th Amendments.

The only Framers talked about today, by conservative purists like the Federalist Society, following in Antonin Scalia’s “originalist” footsteps, are the original group, from 1789. You know, the founding fathers who wisely compromised on things like slavery and apportioning representation in the House on the white population plus 3/5 of the slave population and carved in stone that a well-regulated militia being necessary for the protection of a free state — no regulation of guns allowed! It’s like the Civil War never happened for them, or, if it did, the kerfuffle was a reasonable response by states to having their constitutional right to own other human beings as chattels ripped away from them, their genteel, Christian society torn apart.

You can find these same manipulative weasels making the same speeches today (yes, I heard you the other day on the steps of the Supreme Court, Lyin’ Ted, you “fat wolverine”), defending the rights of certain people (coincidentally always white) to be free from the tyranny of other people (oddly, always “non-white”), mindless, manipulated people who want to “replace” them, as the theory goes. Republicans like Cruz call for bipartisanship, and the sanctity of the filibuster, whenever they are in the minority, even as their colleagues make state laws to suppress the vote, reserve the party’s right to tally all votes, and criminalize protected peaceful assembly, while immunizing those who kill protesters with their cars, as the great state of Florida did just the other day.

The massive multi-racial largely peaceful protests after the murder of George Floyd, protests Bill Barr’s DOJ sent federal troops to violently put down (pursuant to Trump’s hastily promulgated executive order on defense of federal property), are held up as an example of “anarchy” and unreasonable and violent expressions of irrational rage.

Now that the murderer of George Floyd is convicted, as a result of the massive public demonstrations that led to his prosecution, states are getting busy curtailing the First Amendment rights of speech and assembly in their states as they remain uncompromising on the Second Amendment, which they claim does not allow any regulation of gun ownership whatsoever.

Cynical, power hungry politicians playing to their “base” will do whatever it takes to remain in power, no matter what the majority of their constituents might actually want them to do. They will spin everything in terms of liberty from tyranny, in the manner of Groucho Marx flummoxing his unpaid workers:

But there is also history, the record of things that actually took place, who said and did what, what event precipitated another, what the law was and how the Supreme Court ruled on it, which can explain a lot about why the modern day counterparts of the slaveholding class are basically the same impious, largely racist ilk who used Christ’s teachings to justify holding other Christians as farm animals.

[1]

With a very important, and profitable, loophole written into it, no doubt the result of a political compromise by the centrists of their day, insisted on by those who could benefit from it:

“except as a punishment for crime whereof the party shall have been duly convicted”

13th Amendment:

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

see also, Thirteenth (excellent and highly recommended)–

[2]

The infamous Slaughterhouse cases put the 14th Amendment into a century long, judicially-induced coma. The only rights of federal citizenship the amendment protected, according to the unappealable majority on the Supreme Court in 1873, were the right to freely move from state to state, the right to use navigable interstate waterways and one equally crucial liberty I don’t recall at the moment. Everything else was left to the states, whatever the “intent of the framers” (most of whom were alive and outraged after the ruling was announced) might have been. Wikipedia blurb:

The Slaughter-House Cases, 83 U.S. 36, was a landmark U.S. Supreme Court decision that held that the Privileges and Immunities Clause of the Fourteenth Amendment to the U.S. Constitution only protects the legal rights that are associated with federal U.S. citizenship, not those that pertain to state citizenship.

This ruling was effectively reversed ninety years later when a federal court in the South allowed a lawsuit brought on 14th Amendment grounds, under the never-repealed Ku Klux Klan Act, to proceed. This allowed the federal government to prosecute the Klan murderers of civil rights workers Chaney, Schwerner and Goodman. Wikipedia:

The murder of the activists sparked national outrage and an extensive federal investigation, filed as Mississippi Burning (MIBURN), which later became the title of a 1988 film loosely based on the events. In 1967, after the state government refused to prosecute, the United States federal government charged eighteen individuals with civil rights violations. Seven were convicted and received relatively minor sentences for their actions. Outrage over the activists’ disappearances helped gain passage of the Civil Rights Act of 1964.[5]

Since 1967, tens of thousands of 14th Amendment cases, violations of the Civil Rights Act of 1964, have been litigated as many of us work to bend the moral arc of history toward justice.

The precedent set by the Chauvin murder conviction

The verdict yesterday, while welcome, and historic — police supervisors testified that an officer was out of control when he killed (we can now say murdered) a handcuffed prisoner — sets a limited precedent.

The writer of an op-ed in the Times today makes this horrific point:

Yet [in spite of an “avalanche” of damning evidence] right up until the reading of the verdict, much of the nation was on tenterhooks about the outcome of what ought to have been an open-and-shut case. This suspense over whether the reams of evidence would matter is itself a scandal. Only by wading through the facts as the jury saw them can you appreciate this.

source

The Chauvin precedent seems to be:

In a case where there is overwhelming multi-perspective video, witness and forensic evidence of the officer’s guilt, and his supervisors testify against him, and the defense has nothing but ridiculous, irrational, counterfactual stories aimed at producing reasonable doubt in at least one racist juror, and there is a massive movement on the streets in a country ready to explode from centuries of ongoing, unaddressed racism and police brutality with no accountability — sure, in that case, a jury of twelve will vote to convict that kind of murderous, very bad apple. 

It’s a rare and encouraging moment of accountability, yes, but the uniquely overwhelming, unambiguous, incontrovertible evidence in this particular police killing of a handcuffed “suspect” is something to keep in perspective (as I figure out how we point the Jewish space laser at certain rabid Qanon members of Congress, and at Tucker “Jews will not replace us” Carlson, who needs to be replaced, if not simply vaporized.)

Bear in mind that the original police report blandly reported that a suspect, after resisting arrest, appeared to have been suffering from a medical condition and was rushed to the hospital where he died. Darnella Frazier’s real-time videotape of the murder directly contradicted the official report — and went viral worldwide. But for the 17 year-old’s courageous action documenting the killing, the lying police report would have been the last word on Mr. Floyd’s death.

In another great moment for justice, the Department of Justice is investigating whether Chauvin violated George Floyd’s civil rights by slowly choking him to death [1]. It’s the kind of thing you read and think “what the fuck? the fucking law… grrrr…”

It reminds me of the infamous, little known, constitutionally pernicious Cruikshank case, which was brought by the brand new Department of Justice in 1873 after a white mob massacred more than a hundred Blacks in Colfax, Louisiana. The case was the first decisive death knell for the “equal protection under law” promised in the new Fourteenth Amendment. It was a long nail into the coffin of Reconstruction after the Civil War and a case that could be cited in support of any “states’ rights” argument.

The case was brought on violation of civil rights grounds against the mob that massed for a day of burning, shooting and slaughter, after an election that was going to put candidates voted for by Blacks into office, an election the mob claimed had been stolen. The mass killing, the indictment read, denied at least two named victims (one was named Tillman, as I recall) of their civil rights.

Cruikshank made its way up to the Supreme Court where the indictments against Cruikshank and his fellow pogromists were dismissed due what the majority found to be to the inartful [2] drafting of the original indictment by the Department of Justice. The case held that the US could not prosecute a federal criminal case against a conspiracy of private citizens to violate the civil rights of the dozens of people they butchered on Easter Sunday, 1873. That kind of prosecution was left exclusively up to the discretion of the individual states, in spite of whatever might be implied from the language of the Fourteenth Amendment or the laws passed to enforce it.

The case made abundantly clear that the 1870s Supreme Court had a very, very narrow view of the 14th Amendment, which had been ratified to provide rights the states denied on “states’ rights” grounds. States would be able to openly deny these civil rights for close to a century, largely due to the holding in Cruikshank, and its more famous sibling, the aptly named Slaughterhouse cases.

Here’s the plaque some fucking racists erected in Colfax, long after the events of that hellish Easter Sunday in 1873:

[1] Democracy Now reports:

The U.S. Justice Department has opened a civil investigation into whether the Minneapolis Police Department has engaged in a pattern or practice of unconstitutional or unlawful policing. Attorney General Merrick Garland announced the probe Wednesday, one day after former Minneapolis police officer Derek Chauvin was found guilty of murdering George Floyd.

Attorney General Merrick Garland: “Yesterday’s verdict in the state criminal trial does not address potentially systemic policing issues in Minneapolis. … The investigation I am announcing today will assess whether the Minneapolis Police Department engages in a pattern or practice of using excessive force, including during protests.”

The probe is separate from a federal criminal investigation into whether Chauvin violated George Floyd’s civil rights.

source

[2]

This piece on the recent origins of the word “inartful” by the late William Safire is artfully done. He attributes it to Barack Obama, to whom he ironically tips his cap for another remark, which Safire gives us the ancient on-the-nose Latin analogue for.

The Harvard-trained senator’s best subtle play on Latin so far was his comment about problems with those checking out his potential vice-presidential choices: “I would have to hire a vetter to vet the vetters.” As lawyers know, this catchy noun-verb construction is bottomed on a phrase in the poet Juvenal’s sixth satire in the second century A.D. advising his friend Ursidius to remain a bachelor because eligible young women were no longer as chaste as in the old days and, as wives, tended to dally with those assigned to protect them: “Quis custodiet ipsos custodes?” is translated as “Who shall guard the guardians?”