Category Archives: Law and Justice

Looking on the Bright Side

A friend, depressed by the depressing political news that is fed to us steadily, asked me to only send her news items that contained a ray of hope. I mustered a little hope, which I will describe below.

It may seem only a small glimmer of a bright side, though all hope can be seen that way. This bright side could be the cusp of a political tipping point in our violent clash of cultures. It is nice to imagine that our Department of Justice will now pursue justice, cast a careful eye over the evidence of the Mueller and subsequent Senate investigations. A legal examination of a series of very openly transactional quid pro quos is certainly in order.

It is worth pointing out again, humans are not often ruled by reason or logic. If we were, it would be hard for nationalist racism and fascist logic to prevail in so many countries worldwide. There would be no debate, in a reasonable world, about the right of everyone to live free of terror and violence. In most places that’s a proposition you will need to fight about.

Of course, we have never lived in a calm or reasonable world, and those of us who hope for rational public debate that ends with more fairness for everyone will be waiting a long time. Here in the US we’re at the mercy of a no-compromise/filibuster political party that is anti-debate and has the means to stop any important political discussion before it happens. That we may not succeed in convincing adversaries this fierce of anything they don’t already believe doesn’t absolve us of our responsibility to act.

We need to keep in mind that it is impossible to convince anyone of anything just by clearly presenting the facts. The facts never add up to much, if you already hold a strong opinion about the matter.

At a time when a lie carries as much weight as an indisputable truth, and Big Lies have often changed the course of history, we must be creative in how we present our accursed “facts.” We have to take care to avoid sounding smugly superior (as the rest of this sentence no doubt fails to do) to those who fervently worship at the altar of powerful emotion, low-information voters of unshakably held opinions, based strictly on faith, which they believe to be infinitely superior to fallible human “rationality”.

The biggest obstacle to convincing anyone of things that are otherwise true and urgent (like the need to take energetic action to avoid total climate catastrophe) is the ease of spreading even the most easily disprovable lies in siloed, algorithm-driven echo chambers on “social media”. One of our two major parties is now, officially, the Party of the Big Lie (Trump, the loser, actually won — in a landslide), at a time when spreading a lie to millions who will never see the lie contradicted has never been easier.

The most important measure to reverse this pernicious, increasingly deterministic trend, is holding liars accountable for spreading lies. There is currently no price to be paid for spreading even the most obvious lies. In fact, in Trump’s GOP, aggressively promoting a featured lie is a certain path to promotion. See how quickly anyone who calls out the lie is attacked and unanimously canceled by quick voice vote.

There is a simple test for weighing the value of absolute “free speech,” including demonstrable lies, against speech that should be actionable in court — the harm that the false speech causes. It is the same test applied to all other free speech [2].

Under our current law you can’t shout “FIRE!” in a crowded theatre when there is no fire, because a panicked stampede is predictable if you do. Free speech does not protect an American’s right to use words to inflame hatred in a way that predictably leads to violence. Violence-provoking lies should be treated the same way in the on-line world.

How about this for a single, absolute ground rule:

promoting, supporting or endorsing an incendiary lie over “social media,”

AND

refusing to publicly retract the lie when confronted with evidence that it is a lie, and called on it by the platform’s monitors, means that you forfeit your right to use the platform.

Period.  Sounds fucking simple enough, no?

Of course there will be violent contention about what is “incendiary” as well as the definitions of “promoting” “endorsing” and any other words chosen.

It is often easier to see the incendiary nature of a lie after the fact, looking at events in light of the lie. That’s why Twitter banned Trump for life after his long, lie-filled speech on January 6th sent thousands down to the Capitol to violently interrupt the counting and final certification of Electoral College votes against Trump. When Trump eventually went on Twitter to disperse his mob, he told them they were right to be angry, that they’d been cheated, the election stolen from them all, that they were special, that he loved them, to never forget this day, but that it was time for them to go home in peace.

Twitter immediately did what it probably should have done years earlier — took away the platform Trump used on January 6th to remind rioters in the Capitol that Mike Pence had betrayed them. If they’d found Pence, and strung him up, would our discussion today be much different? Hard to know, though I think probably not, at least among Trump die-hards, now the dominant strain of the GOP.

The full damage of a lie is not when it is first told. The real harm sets in each time the lie is replicated, insisted on, every time someone else is converted to belief in something that is destructively false.

The predictable growth cycle of a lie is its most dangerous aspect.

Justifying the January 6 riot at the Capitol requires endless new lies — BLM did it, antifa faked it by posing as a MAGA mob, there was no riot, only Trump supporters died (so where’s the harm? That one trampled to death? shit happens) the cops were lying, only a few of the 140 “injured” were seriously hurt, the “lost eye” story is bullshit, the cop who was “killed” died of a natural heart attack, the videos of the rampage were fake, the protesters were law-abiding, nonviolent tourists, for the sake of our country we need to just move on, there’s no need for a Commission, radical Democrats are just trying to get revenge out of blind hatred of Trump, like they always do, and so on.


While we live in this Age of Trump, the age of wildly insane lies taken, literally, as gospel, the only good political news I see at the moment is the heavy shit storm gathering over the head of the defeated former president who insists he actually won in a landslide. The evidence of Trump’s lifelong pattern and practice of cheating and obstructing justice is rapidly mounting. His day of reckoning in several different courts of law approaches.

I don’t see how he beats the rap in the upcoming Georgia criminal case, where he violated the election meddling statute with great thoroughness and specificity– and is recorded doing so. His best hope may be a stand-off between Ron DeSantis’s Florida troops and federal forces in an interstate extradition battle.

A criminal conviction and more major losses in civil court (where cases are decided, 99% of the time, based on the evidence), plus the conclusions of the January 6 Commission,  should loosen Trump’s death-grip on all but the diehard 39% of his cult of personality. Full public disclosure of the extent of Trump’s corruption and contempt for the law will give his many mostly silent, terrified enemies on the right a shot of courage.

Revelations from the likely Rudy Giuliani prosecution should have a similar effect, even in our arational nation. I think bad news in court for Trump could sway many “swing voters” away from his party.   When he had an attorney general who would constantly fix things for him, Trump didn’t need to worry about the law coming down on him. Now he has great reason to worry about the law finally catching up with him, after a long life of getting away with whatever he wanted because he’s super smart, and a big star, and, when you’re like that, you know, they let you do it.

The pieces seem to be nicely lined up for an obstruction of justice case: 

Former White House Counsel Don McGahn will finally testify under oath that Trump asked him to create false records of their conversation about firing Mueller. Having Trump’s first White House lawyer testify that Trump told him to create a false record is a firm building block for an obstruction of justice prosecution.

Trump’s most competent and accomplished enabler, Bagpiper Bill Barr, the AG who advised Trump to have his people defy all subpoenas and muzzle critics, is in the federal court record as a man judges found “lacks candor”. Three federal judges, in three different cases, concluded that Barr’s rationalizations were not credible and his legal reasoning was in the service of partisan politics. Barr was most recently found “disingenuous” when he tried to illegally conceal other records, falsely classified as “deliberative memos” drafted the day he misleadingly told America and the world that Mueller’s report had found basically nothing on Trump.

Barr’s demonstrated lack of candor, and his relentless. public re-election campaign-related criminal investigation into the the origins of the Mueller “witch hunt” require a DOJ re-examination, based on the actual documents. The same goes for Barr’s rationale for falsely announcing that the Mueller Report basically exonerated Trump for both criminal conspiracy with a foreign power and obstruction of justice. Barr’s conduct was an integral, and crucial, part of that obstruction of justice.

Barr’s repeated untruthfulness, including his lies about the secret Mueller “memo” he classified as supposedly used in his deliberations to declare Trump “exonerated” as he’d promised to do before Trump hired him, will come into play in the obstruction of justice case against Trump.

Add to that all the evidence that has come out since Mueller concluded he had insufficient evidence to find “criminal conspiracy” between Trump’s campaign and the Russians. We have more details about Trump’s corrupt quid pro quo pardons to Manafort and Stone, both of whom lied to Mueller for Trump’s sake, to cover up their closely coordinated work with the Russians. The secret internal polling data that Manafort gave Putin (via Kilimnik) steered Russian influence efforts toward American voters in close districts in Michigan, Pennsylvania and Wisconsin, the three states that gave Trump his Electoral College victory [2].

There are a hundred other related details including Trump’s partially successful attempt to disrupt a joint session of Congress (mission accomplished) to prevent the peaceful transfer of power after he lost the election he still claims he won in a landslide (70% of Republicans polled believe Trump won in a landslide).  How about his enlistment of Republican allies like Ted Cruz, Lindsey Graham and Kevin McCarthy, each of whom made pilgrimages to meet with him in Florida in a show of loyalty, to promote his Big Lie and continue to obstruct formation of a January 6 Commission?

Truly sickening that it is taking so long, but such is life in a democracy hovering on the brink of extinction. It takes time for a prosecutor to make a strong, airtight case ready to be tried in court. Hopefully the rule of law will prevail, before it’s too late for law.

You people are such fucking losers.

[1]

outside of the unlimited dark money “free speech” of corporate persons, of course.

[2] Remember this?

The most important states, though, were Michigan, Pennsylvania and Wisconsin. Trump won those states by 0.2, 0.7 and 0.8 percentage points, respectively — and by 10,704, 46,765 and 22,177 votes. Those three wins gave him 46 electoral votes; if Clinton had done one point better in each state, she’d have won the electoral vote, too.

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Heritage

Voting fraud conspiracist and Heritage Foundation (Mike Pence’s current employer) stalwart Hans von fucking Spakovsky rears his ugly head:

And in a March article for the New York Times, Nick Corasaniti and Reid J. Epstein outlined the role of Heritage Action in Georgia’s and Arizona’s voting restrictions, noting that at least 23 of the proposed state bills that dealt with voting had language that looked like that of Heritage.

They also wrote that Heritage plans to spend $24 million to change voting laws in Arizona, Florida, Georgia, Iowa, Michigan, Nevada, Texas, and Wisconsin before the 2022 election, and that the person behind the Heritage voting policies is Hans von Spakovsky, who mainstreamed the idea of voter fraud in the Republican Party, although experts agree it is vanishingly rare.

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Hans von fucking Spakovsky [1]. Of whom a judge wrote, after dismissing his testimony as the biased presentation of a partisan activist posing as an expert witness:

The Judge, Julie Robinson, wrote von Spakovsky’s statements were premised on several misleading and unsupported examples and included false assertions. She said his generalized opinions about the rates of noncitizen registration were likewise based on misleading evidence and largely based on his preconceived beliefs about this issue, which has led to his aggressive public advocacy of stricter proof of citizenship laws. Von Spakovsky maintains a database of what he calls some 1,300 cases of vote fraud

[since 1982, yo!, putting the prevalence of proven voter fraud in the 0.0001% category– ed].

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A giant think tank that writes conservative laws that are introduced by party members in 47 states is a vital part of that political party. The highly partisan nonprofit Heritage Foundation (authors of the original Patient Protection and Affordable Care Act, as I recall) once again rolls out the discredited lies of von Spakovsky, who has been keeping the massive Heritage Foundation database of electoral fraud going back to 1982 (hundreds of cases!!! more than a billion votes, yes, but HUNDREDS of cases!!) to justify enhanced protections for “electoral integrity”.

These new Heritage Foundation approved laws make all the changes to state voting that Trump and the RNC went to court seeking last time. State and federal courts prevented GOP state legislatures from implementing measures to make it harder to vote the last time around. That’s why the Republican controlled states are busily tightening up their voting laws, to ensure minority freedom from majoritarian tyranny!

Lest we forget, Joe Manchin, the Voting Rights Act you support strengthening had its heart cut out by 5 Heritage Foundation embracing Supreme Court conservatives who overruled President George W. Bush, who had immediately signed the extension of the law that passed 390-33 in the House and, after further debate, 98 to 0 in the Senate.

Although there was no hint of this overwhelming bipartisan support in John Roberts’ infamous Shelby County decision, as he struck down the law citing lack of evidence of ongoing voter suppression, there had been 21 hearings where 15,000 pages of evidence of ongoing discrimination in the states under pre-clearance were considered before the law was unanimously reauthorized by the Senate. As Dubya said (from RBG’s dissent) when signing the extension of the 1965 law:

recognizing the need for “further work . . . in the fight against injustice,” and calling the reauthorization “an example of our continued commitment to a united America where every person is valued and treated with dignity and respect.” 

Nice try, Mr. Manchin, but you already face opposition from the Heritage Foundation and a couple of their senators on the other side of the aisle.

Hey, just because challenging drop-boxes, mail-in voting, illegally giving water to people waiting on line to vote, reducing voting hours to end at 5 pm and so on didn’t work to stop Trump’s defeat in 2020 doesn’t mean that implementing these measures into state laws won’t work like a miracle in 2022 and beyond!

These right-wing bastards are nothing if not persistent, and they fight, wielding every weaponizable lie, with the desperate fury of a dying breed.

Hans von fucking Spakovsky, former head of Trump’s secret electoral strategy conference of Republican state officials. I figured it was only a matter of time before he crawled back out from under his rock. Let’s see that handsome face one more time, Hans.

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[1] As I wrote a few months back (before the 2020 election):

But here’s the really creepy part. A right-wing lawyer working for the Heritage Foundation is advising a group of Republican state attorneys general on how to use disproven legal theories about electoral fraud to take control of state elections and “safeguard the integrity of the upcoming election” to support the president and his followers. This man, Hans von Spakovsky, is the Heritage Foundation’s expert on voter fraud:

HANS VON SPAKOVSKY: All we have to do is look at the many cases, proven cases of absentee ballot fraud to understand that the problem with absentee or mail-in ballots is there the ballots that are most vulnerable to fraud, to being stolen. And they also…

ANDREA BERNSTEIN: Hans von Spakovsky who is well known to ProPublica’s Jessica Huseman.

JESSICA HUSEMAN: Hans von Spakovsky is a longtime voter fraud conspiracy theorist, and he got his start like many people who are now doing strange things in the world of voting in the 2000 election.

ANDREA BERNSTEIN: After that, he went to work for the Justice Department under President George W. Bush.

He eventually wound up at the Heritage Foundation where he became their resident expert in making thinly-sourced voter fraud claims.

ANDREA BERNSTEIN: In 2018, von Spakovsky was called in to be an expert witness in a federal trial over a Kansas law that required proof of citizenship in order to vote. Von Spakovsky was there to present data on noncitizen voting.


JESSICA HUSEMAN: The judge basically dismissed all of his testimony, called it cherry picked, called it biased. Said that he was more of an activist rather than an unbiased expert witness. And her opinion basically said that she gave his testimony no real credence in her decision.


ANDREA BERNSTEIN: The judge, Julie Robinson, wrote von Spakovsky’s statements were premised on several misleading and unsupported examples and included false assertions. She said his generalized opinions about the rates of noncitizen registration were likewise based on misleading evidence and largely based on his preconceived beliefs about this issue, which has led to his aggressive public advocacy of stricter proof of citizenship laws. Von Spakovsky maintains a database of what he calls some 1,300 cases of vote fraud.

So, naturally, he is now working behind the scenes for Mr. Trump’s re-election. He has apparently been hosting Republican-only strategy meetings for state government officials involved in overseeing the 2020 election. The frequency of these meetings is increasing as the already contested election approaches, and officials of the Trump administration are involved in the strategizing.

ANDREA BERNSTEIN: Von Spakovsky’s meetings were attended by state, secretaries of state. These officials are often partisan but their job is to ensure the integrity of their state’s elections.


MIKE SPIES: The purpose of the meeting was essentially to sort of jointly strategize.


ANDREA BERNSTEIN: And, again, only Republican officials were invited to the meetings. Up until 2020, they met basically a couple of times a year in Washington. Republican congressional staffers sometimes came and on at least one occasion so did officials from the Justice Department, Trump appointees.

Purge, classic style

A purge is almost never a good thing, though in the sense of a good vomit after gross overeating or over-drinking, it makes a lot of sense. A new democratic government does well to purge diehard fascist members of the former government, but in general, purges are the work of autocrats who need to periodically weed out the disloyal and make terrifying examples of them. A frightful spectacle of vengeance deters those inclined to think for themselves instead of doing exactly what the leader demands.

When I hear the word purge I always think of the underground chamber where my favorite writer, Isaac Babel, was condemned, after a long stint in prison, one of millions of victims of Stalin’s purges. Babel pleaded with his interrogators, men who worked for Beria [1], Stalin’s chief of torture, to let him just continue writing. Babel’s mock trial was short, only a couple of minutes in that tiny, airless room, after which he was taken from that dark chamber and into a nearby courtyard for a couple of gunshots. A trunk of Babel’s unpublished writings, safeguarded by his friends, disappeared, never to be heard of again. That’s a purge.

Yesterday the GOP purged Liz Cheney from Republican leadership in a basement room at the Capitol, by a voice vote. This shouting out of “yay” or “nay” spared potential embarrassment for any individual Republican who would otherwise be on the record in favor of removing Cheney for the high crime of insisting that a violent riot, caused by Trump, watched worldwide on live television, had taken place on January 6, to support a lie that Trump had won the election in a landslide.

You don’t necessarily want your face attached to a vote to do that, since you can’t predict the future, so you meet in a large room in the basement, in a kind of lynch mob, and do it fast. The “yays” have it, Liz Cheney is purged. The whole thing took 16 minutes.

The problem with a purge that does not actually kill your enemy, as any good dictator knows, is that the opposition tends to organize around leaders who remain unbowed during a purge. Cheney, as hideous as her torture-endorsing right-wing politics are — and she is truly a chip off the old aptly named Dick Cheney — has taken a basic and principled position against perhaps the boldest single lie in American political history. Certainly the boldest lie ever told by a president who sent a mob to stop the certification of an election he lost, and, if they got lucky, lynch his vice president and decapitate the government by taking out the next two in line, Democrats Nancy Pelosi and Patrick Leahy.

“Stop the Steal”, in a nutshell, is the wildly counter-factual idea that Trump had the election stolen from him, by a bipartisan cabal of evil bastards, after four glorious years during which his ruthless enemies continually persecuted him for no reason except their radical hatred, that he actually won the 2020 election in a landslide, as he still insists he can prove.

How much courage does it take for a Republican to admit that the whole Trump thing, with its $50,000,000 ad budget to spread the infuriating lie (an ad buy that ended on January 6), with its $3,500,000 organizing budget to bring a massive crowd to Washington, DC to forcibly shut down Congress and “stop the steal,” is a lie? Trump’s claim that a rigged election was stolen from him is one of his trademark “transactional” lies, this one based on the paranoid fantasy of a former president who cannot accept the reality that he lost an election.

You would not think it would take much courage, but outside of Liz Cheney and Adam Kinzinger, you seldom hear a peep from the Red team to contradict the obvious lie of their vindictive strongman leader. It would be nice to hear from Reince Preibus, John Kelly, Mad Dog Mattis, Sessions, Barr, H.R. McMaster, John Bolton, Chad Wolf, former Trump cabinet members Elaine Chao and Betsey DeVos (both of whom resigned right after the January 6 riot) and many others, on this. The united cowardice and calculation of virtually all Republicans in support of America’s Greatest Lying Loser is hard to fathom.

We are balanced on the rim of an active volcano, all of us, along with our democracy. This is going to remain an ugly fight, but it is a crucial fight, existential.

I take a certain amount of consolation from the actual facts in evidence and from the general rule of actual proof in our legal system. Virtually every lawsuit based on a demonstrable lie must fail, as we saw over and over with the dozens of Trump/RNC election lawsuits dismissed for lack of evidence of their claims. There are very few cases where a judge has the discretion, by ruling narrowly along an ideological crevasse (a Boof Kavanaugh speciality), to rule in support of ideology and contrary to the facts. It must be done with skill to avoid being overturned on appeal (unless you write for an unappealable court, of course, as Kavanaugh now does).

Our legal system is in many ways brutal, openly favoring the rights and privileges of the wealthy, and corporation persons, over everyone else. Criminal justice is applied in a systemically unjust manner that routinely incarcerates small-time criminals (disproportionately “non-white”) while leaving the most powerful criminals free to ply their lucrative trade. There is no legal enforcement of “ethics,” a concept applied on a strictly voluntary basis by anyone with the power to decide whether to abide by ethics recommendations.

For all its flaws, our legal system is bound by rules that even the most partisan judge cannot simply ignore. For example, you can insist on your deeply held opinion that Hillary Clinton is a vicious criminal who needs to be locked up. To lock her up you will need actual proof of a crime.

In the case of Trump and his loyalists, their crimes are many, and now shown with more and more powerful evidence. Now that Trump is no longer a sitting president (even Kevin McCarthy admitted yesterday that Biden is the actual president [2]) he does not have the shield of that OLC memo about not indicting POTUS.

Trump and his followers have been brazen, and relentless, but not always very smart. Even the purportedly brilliant legal mind of Bill Barr was addled, and not always smart, while he served as Trump’s zealous gunsel for the second half of Trump’s term. The entire story of Trump’s seamless obstruction of justice (new chapters written daily, stay tuned!) is now fair game for prosecutors and juries, and more and more facts, previously hidden (as part of the obstruction) are coming to light.

To take one thread as an example:

Former White House Counsel Don McGahn, interviewed under oath by Mueller’s investigators, recounted a shameless attempt by Trump to obstruct justice, followed by an even more shameless attempt by Trump to have McGahn create a lying record, denying that Trump ever made the first shameless ask.

McGahn’s public testimony under oath would have been deadly to Trump during the first impeachment trial (had Pelosi had the wisdom to allow an additional article of impeachment for Obstruction of Justice based, in part, on the ten examples Mueller laid out).

Even though Republicans under McConnell had the power to prevent all witnesses from testifying in the first impeachment “trial”, as they did, after vowing to work closely with Trump’s defense team, no chance could be taken that would allow McGahn (a right-wing zealot in his own right, promoter of Gorsuch and Kavanaugh for Supreme Court) to be deposed or testify. Barr suggested Trump invoke an imaginary all-encompassing presidential immunity that covered anyone Trump had ever talked to from ever testifying to anyone. McGahn’s subpoena to testify was held up in court for two years. Until the other day, when his long refusal to obey the subpoena ended with a deal for McGahn to answer a few questions [3].

We now have published facts that were hidden from Mueller, from the public, some key facts were zealously hidden by our disingenuous former Attorney General. It now is possible, for example, to prove that Trump’s then campaign manager, Paul Manafort, had a direct channel to Putin in his long-time friend Konstantin Kilimnik, and gave the Kremlin important secret polling data that allowed Russia to help Trump most efficiently. The facts are going to continue crushing Trump and his myrmidons in court.

It is dangerous, of course, to underestimate the power of organized rage and blind obedience in human affairs. Our experiment in democracy faces a grave danger from the forces of enraged white grievance and a party that now speaks for that grievance in one voice, “the yeas have it”. This free-floating anger has found an avatar in Donald Trump, an unapologetic hater, a man who will never, ever stop fighting.

It would appear, looking over his public history, that Trump, an angry bully since childhood, lives to fight. This fight-to-the-death-and-beyond spirit appeals to certain underdogs who feel that fighting is their only option. It also appeals to all cynical Ted Cruz and Lindsey Graham types who simply attach themselves to what they perceive to be power, in any form. The fight is waged amid the silence of the mass of GOP officials and absurdist claims by little known partisans like Rep. Andrew Clyde (R-GA), who insist, during public testimony, that footage of the “riot” was no different than what could be shot of any tourist group, they were just there enjoying themselves!

By not actually stringing Liz Cheney up yesterday after the mob shouted its approval of her being stripped of her party leadership position, Trump’s followers in Congress may have made a huge mistake. If I had to bet on a Republican presidential candidate for 2024, my money would be on Liz Cheney over DJT. For one thing, it may be very hard, no matter how strong and organized the denial is, for Trump to run against the findings of the eventual January 6 Commission, and the verdicts in state criminal courts of Georgia and New York. Last time Trump had the indomitable Bill Barr fixing everything for him, this time, no such luck for Donnie Bonespurs.

[1]

Naturally when Beria, one of history’s most infamous sadistic torturers and rapists, was eventually arrested (in one of Stalin’s final purges, I think) he cried, screamed and whimpered like a terrified baby. I guess it occurred to him that if “what goes around comes around” is true, he had a horrible death waiting for him. Which he sure enough did.

[2]

“I don’t think anybody is questioning the legitimacy of the presidential election,” Mr. McCarthy told reporters after meeting with Mr. Biden and congressional leaders at the White House to discuss infrastructure spending. “I think that is all over with. We’re sitting here with the president today. So from that point of view, I don’t think that’s a problem.”

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[3]

The House Judiciary Committee and the Biden administration have struck “an agreement in principle” to resolve a two-year-old fight over a subpoena for testimony from Don McGahn, a former White House counsel to President Donald Trump, lawyers said in a court filing on Tuesday evening.

Trump has not signed off on the deal, however, according to the status report submitted to the D.C. Circuit Court of Appeals. The former president could try to take legal action to block any testimony from McGahn, but the filing from the House and the Justice Department — now under the control of appointees of President Joe Biden — seems to try to head off such a move by noting pointedly that Trump “is not a party to this case.”

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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.

source

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.

source

[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.

source

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.

source

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.

source

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.”

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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 variations on the Black Codes, lynching and deprivation of basic 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, since the mid-nineteen sixties, can go to federal court to seek redress of grievances against their state under the constitution, as intended in 1868 when the amendment was added to ensure the rights of citizenship to a new class of citizens..

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.

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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.

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“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.

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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.

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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.

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[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.

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[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: