Category Archives: Law and Justice

The long moral arc of fucking history

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

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

The New York Times reports:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

What is a lie?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[1] tip of the yarmulke to Stephanie Miller

You Are the Object of a Secret Extraction Operation

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

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

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

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

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

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

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

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

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

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

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

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


Fascist-style Populism

Populism is a political appeal to what is popular among the population, and can be of the left or the right. It seems, most usually, and especially here in the US of A, it is harnessed by the right, as in the Koch-funded “spontaneous” “grass roots” Populist Tea Party, a national movement that appeared to spring up over night across the country, in a phenomenon gawked at by mass media as strong proof of a massive popular uprising against the self-proclaimed Hope and Change president, and swept a host of unapologetically angry Tea Party radicals into Congress to transform the Republican party and the US government. What we see on TV, and via social media, becomes our reality.

Just off hand, you might think that populism is good for democracy, the will of the people expressed through a mass movement. It can go either way. Most often populist movements are taken over by demagogues. The ideas are already popular — the government is a bunch of clueless elitist eggheads who don’t share our values. deciding, against our will, what we actually want! Harness this anger and you are a populist. When times are tough, populism swings right, toward authoritarianism. Here is an insightful bit from a discussion with David Sirota on a recent Deconstructed podcast:

So, in other words, human beings being thrown out of their homes, were the foam on the runway for the banks, which really tells you what you need to know about what the overall policy goal of the Obama administration was. They made a decision that they had to save Wall Street which, not incidentally, had given the most amount of money to Barack Obama’s campaign in the history of presidential politics. They made the decision that to save the economy, they had to first and foremost save Wall Street.

Now, maybe you could say it’s not corruption. Maybe you say it’s ideology. Maybe you just say it’s a principled disagreement or a principled belief. And there’s one phrase that that Geithner, I believe it was Geithner, who said: That’s how we saved the economy, but lost the country.

And what’s important to know is how historically anomalous that is from the Democratic Party itself. FDR, not that he was a perfect president, but he came in during an economic crisis. And there’s a lot of evidence — a lot of his quotes, a lot of the things he said — that he understood that if there was going to be a bailout or investments, it had to be bottom up. And he understood that it had to be bottom up for three reasons: It was morally right, people were starving; it was economically a better policy; and then he also made all sorts of statements, saying that this is the way to stop the rise of fascism — that if you do not help the working class in a crisis, then you are creating the conditions for authoritarians and fascists to take advantage of the desperation. And fascism was on the rise in the Great Depression here in the United States!

And so what 2009-2010 leading into the Trump-era suggests is that FDR was right, because the Democrats, the modern version of the Democrats, didn’t do what FDR did. And it ended up creating the conditions for Trump.

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FDR, not that he was a perfect president, but he came in during an economic crisis. And there’s a lot of evidence — a lot of his quotes, a lot of the things he said — that he understood that if there was going to be a bailout or investments, it had to be bottom up. And he understood that it had to be bottom up for three reasons: It was morally right, people were starving; it was economically a better policy; and then he also made all sorts of statements, saying that this is the way to stop the rise of fascism — that if you do not help the working class in a crisis, then you are creating the conditions for authoritarians and fascists to take advantage of the desperation. And fascism was on the rise in the Great Depression here in the United States!

Think of the enraged army of MAGA populists across the country who now routinely call to violently threaten Republican legislators who “disloyally” voted for an uncontroversial bipartisan infrastructure bill they negotiated, a bill that will benefit their communities, a long overdue allocation of resources for the mutual good — and the good of US big business, by the way — that Trump touted when he was president (though he was too busy with other things to do anything about it). According to our right-wing populists, all we really need are strictly constitutional gun laws that respect our sacred Second Amendment right to bring our non-regulated guns wherever we want, as part of goddamned political speech. If you think that’s a problem, cucks, suck lead.

This kind of enraged populism is the necessary precondition for mob rule and autocracy.

Mr. Biden? Mr. Garland? Congress? Senate supporters of the sacred filibuster over the right to vote?

Spoiler from Bezos

You’ve got to love the frankness of this headline question curtly answered in the short blurb below:

Just one more reason certain corporate donors love, honor and host fundraisers for unlovable, dishonorable cartoon coal tycoon/obstructionist Joe Manchin III.

Trump scores AGAIN!

Federal Judge Tanya Chutkan yesterday ruled against Trump’s attempt to conceal all presidential papers relating to the planning and implementation of the January 6 Stop the Steal rally and subsequent MAGA riot at the Capitol. All quotes are from the Newsweek edited version of Judge Chutkan’s decision.

Plaintiff does not acknowledge the deference owed to the incumbent President’s judgment. His position that he may override the express will of the executive branch appears to be premised on the notion that his executive power “exists in perpetuity.”

But Presidents are not kings, and Plaintiff is not President. He retains the right to assert that his records are privileged, but the incumbent President “is not constitutionally obliged to honor” that assertion.

That is because Plaintiff is no longer situated to protect executive branch interests with “the information and attendant duty of executing the laws in the light of current facts and circumstances.”

And he no longer remains subject to political checks against potential abuse of that power. Moreover, contrary to Plaintiff’s assertion that President Biden’s decision not to invoke executive privilege is “unprecedented,” history is replete with examples of past Presidents declining to assert the privilege.

Trump’s lawyers. doing their best with an extremely weak legal hand, argued there is no legitimate legislative purpose to justify release of Trump’s plans to overturn the election. In attacking Congress’s legitimate legislative purpose in obtaining these documents, they were skating on very thin ice. Judge Chutkan clarifies that Congress does not need to specifically announce its intended legislative purpose, particularly if the Executive Branch agrees that Congress has a legitimate purpose. Then she helps Trump out in understanding what those purposes likely include:

The court has no difficulty discerning multiple subjects on which legislation “could be had” from the Select Committee’s requests. Some examples include enacting or amending criminal laws to deter and punish violent conduct targeted at the institutions of democracy, enacting measures for future executive enforcement of Section 3 of the Fourteenth Amendment against any Member of Congress or Officer of the United States who engaged in “insurrection or rebellion,” or gave “aid or comfort to the enemies thereof,” U.S. Const. amend. XIV, § 3, imposing structural reforms on executive branch agencies to prevent their abuse for antidemocratic ends, amending the Electoral Count Act, and reallocating resources and modifying processes for intelligence sharing by federal agencies charged with detecting, and interdicting, foreign and domestic threats to the security and integrity of our electoral processes.

Several times in her decision Judge Chutkan states the obvious, making a public record:

The Select Committee appears to be operating under the theory that January 6 did not take place in a vacuum, and instead was the result of a months-long groundswell.

Defendants argue that to identify effective reforms, Congress must first understand the circumstances leading up to January 6 and how the actions of Plaintiff, his advisors, and other government officials contributed or responded to that groundswell.

The court notes that the Select Committee reasonably could find it necessary to investigate the extent to which the January 6 attack on the Capitol may have been an outgrowth of a sustained effort to overturn the 2020 election results, involving individuals both in and outside government.

But the “very nature of the investigative function—like any research—is that it takes the searchers up some ‘blind alleys’ and into nonproductive enterprises. To be a valid legislative inquiry there need be no predictable end result.” Eastland, 421 U.S. at 509.

See, for example John Durham’s so far two and a half year investigation of alleged left wing traitors behind the Mueller investigation. Compare: five day, extremely limited FBI “investigation” into allegations (witness tips forwarded directly to Kavanaugh’s sponsor, fellow Federalist Society all-star Don McGahn) against Justice Boof Kavanaugh.

The Committee could reasonably expect the requested records to shed light on any White House planning and strategies concerning public messaging about the election, any efforts to halt or delay the electoral count, and preparations for and responses to the January 6 rally and attack.

Such information would be plainly material to the Select Committee’s mandate to discover and report on “the facts, circumstances, and causes relating to the January 6 [attack],” H.R. 503, § 3(1), and to pass remedial legislation in any number of previously identified areas within their legislative purview.

Court: Trump’s claims fall, release the records, Trump loses this one. Trump: Judge Chutkan is fake, smelly and a liar who does disgusting things when she goes to the bathroom! I have already appealed this bullshit decision, will win AGAIN 6-3 in my Supreme Court!

When is preventing the administration of justice by every possible means officially Obstruction of Justice?

My friend, after taking my recommendation and reading Jason Stanley’s great short book about the rise of fascism, which follows an identical path everywhere it takes hold, called the book a bit hyperbolic. Two years later, after an angry mob of violent “patriots” overran the Capitol, at the urging of their leader, he laughed when I described a cartoon of us I’d like the discipline and talent to draw. He and I are emaciated, dirty, dressed in striped pajamas, skeletal hands on the barbed wire fence in front of us, staring ahead with dead eyes. The caption: “still think Stanley’s book was hyperbolic?”

Our democracy is like the famous frog, comfortable in the warm, then hot water, until he begins to boil and learns it’s impossible to leap with boiled legs. When something awful happens by degrees it can slip by unnoticed until it’s too late to do anything about it.

Biden’s earnest Attorney General Merrick Garland will not convene a grand jury to investigate the now well-documented plot to overturn an American presidential election. Even though there is a federal statute directly on point.

Garland doesn’t want, God forbid, to look political so he takes no action, even knowing there was a coordinated, multi-pronged plan, involving the former president, members of Congress, several lawyers, a grimly effective fascistic political strategist/podcast host, at least one former military officer, several talking heads of extreme right-wing media, plus the wealthy donors who paid, in dark money, to finance what we now nonchalantly refer to as The Big Lie and the MAGA riot.

Even knowing there was a January 6th election overturn command center, paid for by Trump’s campaign, at a hotel a block from the White House, where several conspirators huddled before and during the violent assault and breach of the Capitol to prevent certification of the 2020 election, Garland’s principled passivity is as supine as the famously supine passivity of the idealistic democratic leaders of the Weimar Republic, during the final days before the Thousand Year Reich.

So scrupulous is Garland about appearing nonpartisan that he won’t even indict Steve Bannon for openly telling Congress, the Department of Justice and the rest of the administrative state he despises to go fuck themselves, stick their subpoena where the sun don’t shine. Nineteen days after the House made the contempt referral to DOJ (Glenn Kirschner’s counting it down), Garland continues to agonize over how to apply the facts (legal subpoena, Bannon “fuck you”) to the law (willful defiance of legal subpoena without legal grounds = contempt).

The recent subpoena for pardoned asshole, admitted perjurer, QAnon promoter and former general Mike “Lock Her Up!” Flynn brings us full circle on Trump’s endless merry go round of obstruction of justice.

When, weeks into the Trump administration, Flynn lied about illegal contacts with Russians, and forgot to disclose, while getting top security clearance, that he was on the payroll of Turkey and likely other foreign governments, Trump was forced to fire him. Then the big guy cornered the FBI director, problematic anti-hero James Comey, and one on one, over dinner, asked him to drop the Flynn thing, Flynn being a good guy and a valued member of Trump’s team. Comey refused, was fired. Flynn was prosecuted, pleaded guilty to lying to the FBI. This was all normal DC politics and the law, playing out pretty much as it always had.

Then as Flynn watched other Trump operatives play coy in legal proceedings, counting on the quid pro quo pardons that Trump continued to dangle for self-proclaimed political ratfuckers like Manafort and Stone, encouraging them to obstruct their own trials, intimidate witnesses, change their stories, playfully threaten a federal judge or two, he realized how stupid he’d been to plead guilty, just because they had the proof of his lies and it would have been worse for him to go through a full trial.

Flynn hired the insane, well-connected right wing attorney Sidney Powell who argued that Flynn had been tricked into his guilty plea by the cunning canards of a cabal of cannibal pedophile cucks. The Department of Justice worked closely with Flynn’s new attorney, a true right wing Kraken superstar (at that time), and they hastened to dismiss all charges against Flynn, claiming now that Trump’s FBI had been compromised by treacherous partisan Democrats who hated Trump and that Flynn had been suckered into lying and then lying about lying.

Trump’s gunsel, Bill Barr, took the extraordinary step of arguing against his own Department of Justice, who had successfully prosecuted Flynn. He did this behind the scenes, as well as publicly.

At the same time, he loudly appointed a Special Counsel to start an investigation into the Mueller “witch hunt” with an eye toward a propaganda coup, that could be announced with great fanfare right before the 2020 election, like Comey’s 2016 game changer about Hillary Clinton. It turned out Durham had turned up an irregularity in a FISA warrant for Trump associate Carter Page, the apparent lie being the omission of the pertinent fact that Page had been a CIA asset or something of that nature. Barr ran with this — if the Page warrant was obtained based on a lie, the whole Mueller investigation was based on pure hatred of Christian Dominionists by Satan worshipping secular cuck anarchist antifa liberals.

Trump successfully obstructed justice during the Mueller investigation, in at least ten separate counts that Mueller could not exonerate him for. He successfully obstructed justice again by having Barr bury the whistleblower complaint about Trump’s shakedown, two day’s after Mueller’s shambling testimony left no doubt that the Mueller investigation had failed to nail him, of the new Ukrainian president for dirt on Joe Biden. Trump was “acquitted” in two separate witness-free impeachment trials, run by his own party, working closely and openly with Trump’s demented defense team.

After lying for months, now a year, about his election loss and conspiring with a cast of pathetic but energetic characters, he fomented a riot to Stop the Steal. He also had a plan to subvert the constitutional order, sought to replace an acting AG intent on following the law, tried to strong arm his loyal vice president to go along with a mad plan to keep control of the government, and when he refused, incited a mob to string the fucking cowardly traitor up.

If you were writing a novel about a corrupt leader obstructing justice, you might be afraid to put this much detail into it, for fear of straining the readers’ willingness to suspend disbelief.

If I were an Australian, with a deep stake in American democracy, Jim Jefferies, for example, I would probably at this point call Merrick Garland a cunt, though I realize that’s not a word we can use here, in the USA, where words fucking matter.

Garland may well be a very principled, judicious, deliberate man, but he’s not a wartime Attorney General ready to deploy the law boldly against seditious conspirators, making them actually obey subpoenas from Congress — for starters, to end the GOP’s seamless obstruction of justice and ensure that fascism is not our immediate fate here in the land of the free and the home of the highly principled.

Mike Flynn is laughing his autocratic ass off now, as the far-right’s Steve Bannon continues to bray from his basement, basking in his open contempt of Congress and law, and the good citizens shudder, wondering when they will finally just take over, put troops and angry mobs of armed vigilantes in the street and the Enemies of the People, and bigmouths like me, into harsh, airless, stinking, sun-baked Joe Arpaio-style prison camps.

Three faces we should all know

John Durham

John Durham, Special Counsel appointed by Bill Barr to investigate and root out the “traitors” who brought the “baseless, lying, partisan witch hunt” investigation into collusion between the Trump campaign and the Russians to the Department of Justice. Durham has now been at his work longer than Mueller was. He recently issued a third indictment, arresting a man who allegedly did the same kind of thing Mike Flynn did — lying to conceal the fact that he was lying.

In Flynn’s case the lies were eventually deemed ‘immaterial’ by Barr. In the case of the indicted Clinton-supporting alleged liar who gave unfounded rumors to the author of the anti-Trump Steele Dossier (a document which was not, in fact relied on by Mueller – the definition of ‘immaterial’ lies when investigating the oringes of the “Rusher thing”), and allegedly lied about it to Durham’s investigators, he will face justice.

Durham’s face (and this seems to be his official DOJ photo) says a lot about him — he is fierce, implacable, deeply conservative, a devout Catholic (like fellow Christian dominionists [1] Bill Barr, former White House Counsel Pat Cippolini, Mick Mulvaney, Mike Pompeo) and a dogged ratter.

So as not to appear “political” Biden’s Attorney General Merrick Garland has authorized Durham to continue hunting for the partisan liars who brought the fake and embarrassing “Rusher thing” in an attempt to compromise and humiliate the honest and never the least bit corrupt or “transactional” Donald Trump.

Presumably the same fear of appearing partisan has restrained Garland from convening grand juries to indict any of the people we now know conspired with the defeated former president1 to overturn the results of the 2020 election. Not Rudy Giuiliani (who brought numerous baseless post election lawsuits promoting Trump’s Big Lie and, prior to the election, played a key role in the smearing and ouster of US ambassador Marie Yavonovich, so as to promote a fake Ukrainian investigation into Hunter Biden), not either of the two lunatic fringe Federalist Society lawyers, Jefferey Bossert Clark and John C. Eastman, who energetically served the mad former president in his mission to remain in office after losing the election.

Jeffrey Bossert Clark

Clark is the ambitious Trump appointed weasel [2] who wrote a letter based on Trump’s lies and tried to pressure the acting Attorney General into signing the letter to top Georgia officials falsely claiming there had been massive voter fraud in Georgia, that there was an ongoing DOJ investigation into that fraud. Both claims were false, knowing lies, in Barr’s phrase “bullshit.” Clark gave it his best shot in the days immediately before the January 6 riot, he was ready to step in as acting AG, sign the lying letter himself, if Trump said the word. Trump backed down under pressure from DOJ officials and his own White House Counsel.

On January 14th Clark resigned his post at the Department of Justice and immediately went to work for a far right nonprofit that brought lawsuits against mask and vaccine mandates and abortion providers. The latest on this fucker, who cited a vague privilege instead of testifying before the January 6 Committer on Friday:

“The Trump taint is sticking to Jeffrey Clark,” Business Insider reported Thursday. “In the 10 months since the would-be Justice Department coup, Clark’s name has been scrubbed from the conservative legal group where he’d landed his first post-Trump job. He lawyered up in the face of congressional scrutiny. But, just days before his Friday interview with the House committee investigating the January 6 attack on the Capitol, Clark parted ways with the defense lawyer Robert Driscoll, Politico reported late Wednesday.”

Clark is just the latest attorney to suffer repercussions for their relationship with Trump.

“In the eyes of several former colleagues, Clark has joined the ranks of once respected conservative lawyers — including former New York City Mayor Rudy Giuliani, the former prosecutor Sidney Powell, and the constitutional scholar John Eastman — who have been burned flying too close to Trump,” the report noted.

After Clark stonewalled the January 6 Committee last week he should have been found in contempt and locked up pursuant to Congress’s power of inherent contempt, until he agreed to testify truthfully. Unfortunately, while legal, it would appear as “political” as the prosecutions Merrick Garland is thus far not pursuing. To the party that honors rules and norms, and places a quaint reliance on empirical facts, this kind of hardball tactic is apparently inconceivable.

Which brings us to another Federalist Society stalwart and former dean of a presumably right wing law school, John Eastman.

This jackass, who spoke at the January 6th Stop the Steal rally and subsequently lost his job, turns out to have authored a battle plan for Mike Pence to defy the Constitution, and more than 200 years of precedent, on January 6th and insist that since there were alternate slates of electors from each swing state Trump lost (there were no alternate electors — every state had certified its electors a month earlier) he was invoking his (imaginary, counter-factual) Twelfth Amendment power to disqualify the electors in those disputed states, call the election undecided for lack of an Electoral College majority and send it to the gerrymandered House for a straight party-line vote (that would, under the rules for deciding a deadlocked election, bypass the actual majority in the House) where Trump could be declared president by the loyal members of his own party, who enjoyed a majority in the House for this purpose only. You can read this braying jackass’s short, to the point, memo to Pence HERE.

Under Eastman’s learned constitutional analysis, the Vice President who loses a re-election bid, under powers arguably (but only by someone insane) granted by the convoluted, procedural 12th Amendment, has the absolute final say on whether or not he lost his re-election bid. Clearly the intent of the Framers, no?

The absurdity of this claim aside, Eastman provided step by step instructions for how Pence needed to proceed, to sidestep constitutional and procedural objections and silence Democrats when they “start to howl”. Eastman was in the war room at the Willard Hotel, taking the short walk over to exhort the crowd to go to the Capitol, shortly before the January 6th Stop the Steal rally unaccountably turned into a violent assault on the Capitol. His hotel bills, we learned recently, were paid by the Trump/Pence 2020 campaign.

Of course, indicting him for anything — and how can you indict a lawyer for a good faith argument for illegal actions to overturn a certified election? — would only play into the hands of the really hardcore right wingers who want a violent overthrow of democracy. And so, in Biden and Merrick Garland’s judgment, you dig, we must avoid the appearance of being overtly on the side of not overturning US elections, because, you know, it would only infuriate powerful American Nazis.

Makes me wanna holler.

[1]

Dominionism, or Christian Dominionism is a term coined by social scientists and popularized by journalists to refer to a subset of American Christianity that is conservative, politically active, and believes that Christians should, and eventually will, take control of the government. The term is sometimes used as a “catch-all” by bloggers to describe any politically active Christian, but not every conservative, politically minded Christian is a Dominionist.

Christian Dominionists believe that God desires Christians to rise to power through civil systems so that His Word might then govern the nation. The belief that “America is a Christian nation” is sometimes called “soft dominionism”; the idea that God wants only Christians to hold government office and run the country according to biblical law is called “hard dominionism.”

Dominion theology’s beliefs are based on Genesis 1:28, which says, “Be fruitful, and multiply, and replenish the earth, and subdue it: and have dominion over the fish of the sea, and over the fowl of the air, and over every living thing that moveth upon the earth” (emphasis added).

This verse is taken by Christian Dominionists as a divine mandate to claim dominion over the earth, physically, spiritually, and politically. However, this is taking a large step away from the text, which only says to have dominion over the creatures of earth, and to “subdue” the earth. It is likely that this verse simply means for humanity to a) multiply and expand over the face of the earth instead of staying in one place and b) keep and take care of all other living things. There were no political entities in Genesis 1.

However, dominion theology goes even further with this verse, leading to two other philosophies: Christian Reconstructionism and Kingdom Now theology. Christian Reconstructionism is an intellectually high-minded worldview, most popular among the more conservative branches of Christian faith. Reconstructionism says that dominion will be achieved by each Christian excelling in his or her individual field (Christian artists taking dominion of the art world, Christian musicians taking dominion of the music world, Christian businessmen taking dominion of the business world, etc., until all systems and fields are “subdued”).

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[2] From a January 24, 2021 story in the New York Times

WASHINGTON — It was New Year’s Eve, but the Justice Department’s top leaders had little to celebrate as they discussed Jeffrey Clark, the acting head of the civil division, who had repeatedly pushed them to help President Donald J. Trump undo his electoral loss.

Huddled in the department’s headquarters, they noted that they had rebuked him for secretly meeting with Mr. Trump, even as the department had rebuffed the president’s outlandish requests for court filings and special counsels, according to six people with knowledge of the meeting. No official would host a news conference to say that federal fraud investigations cast the results in doubt, they told him. No one would send a letter making such claims to Georgia lawmakers

When the meeting ended not long before midnight, Acting Attorney General Jeffrey A. Rosen hoped that the matter was settled, never suspecting that his subordinate would secretly discuss the plan for the letter with Mr. Trump, and very nearly take Mr. Rosen’s job, as part of a plot with the president to wield the department’s power to try to alter the Georgia election outcome.

It was clear that night, though, that Mr. Clark — with his willingness to entertain conspiracy theories about voting booth hacks and election fraud — was not the establishment lawyer they thought him to be. Some senior department leaders had considered him quiet, hard-working and detail-oriented. Others said they knew nothing about him, so low was his profile. He struck neither his fans in the department nor his detractors as being part of the Trumpist faction of the party, according to interviews.

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