Government |
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20 December 2022
The ACLU is not a Charity
The ACLU is famous for taking a trenchant view of certain questions that arise in the law, the law that emerges from the Constitution and the Bill of Rights and later Amendments to the Constitution, which we sometimes call "Civil Liberties." I was a member of the ACLU at one point, but decided that I do not—and still do not—agree with many of the positions they take. I have listened to the Chief Executive Officer, Anthony Romero, speak on the role and stance of the ACLU nationally, and I found him bordering arrogant. Their calling, they say, is to make the United States a more perfect union. That is a high calling. And, so there you have a hint to the valence of the group. It begins to look like a political party without actual candidates. I do think that on the whole they are not smart enough to do what they are doing without serious ongoing external review. I would normally let them go about their business because it is possible my animus misses the hints they may do more good than evil, but this Christmas season they have taken advertising air-time on the television shows I watch to beg for funding. Certainly they need funding, but the holiday season is by informal tradition the time for charities like St. Judes Childrens Research Hospital and The Shriners Childrens Hospitals and K.I.N.D. and Care and the Red Cross, etc. and et al, to remind the country that none of them can go on with their charitable work without support. Truthfully, the intrusion annoys me most because ACLU still professes to believe they took the correct side at the Supreme Court on the case of Citizens United v. U.S. Federal Elections Commission. Clearly, they did not! As you may know the SCOTUS ruled in Citizens United that corporations and trade untions may not be restricted in the amount of their donations to political campaigns. ACLU saw the restrictions as a direct affront to the First Amendment. The Court then ruled that money is speech. ("money") We know that corporations are not people or citizens, but back in the rampant Gilded Era, a SCOTUS granted them "civil rights." ACLU was not yet born. The problem with taking that point of view of civil rights is it is willfully blind to the consequences of unrestricting the wealthy from what could well become—and actually became—untethered flooding of the donor system with money representing their narrow, minority-political interests, requiring, in turn, that everyone else has to fund-raise 24/7/365, thus corroding the idea of democratic government with avarice, cupidity, and corruption. The SCOTUS remarked in its decision to unrestrict campaign funding that the provision of the Federal Election Campaign Act of 1971 that requires divulging the source of the donations would rebalance the "system." Well, has it? By no means does the public get 24/7/365 notice that Exxon or UAW or Tesla are funding certain campaigns. I think, moreover, you have to admit that any entity dependent on external funding would be sensitive to and, perhaps, in favor of fewer restriction on where and how much their money comes from. The SCOTUS rationale unleveled the playing field. It took a hundred years and a Civil War for the nation to realize that we need an "equal protection of the law statement," and so finally we put one in the 14th Amendment. A republic predicated on the concept of "the rule of Law" applied evenly across all that the law governs should have had this concept enunciated from the beginning. Sometimes lawyers fixate on the First Amendment as being superior to all other Amendments. It is vitally important, but it is not superior. The Equal Protection Clause of the 14th Amendment tells us that corporations and trade unions may not be accorded more access to the eyes and ears of the body politic than any other discrete group or population, but this notion, supporting the Campaign Finance laws, was ignored in principle and fact by the ruling in Citizens United. I will not repeat what I have already written about the vanity and arrogance of the "judicial review" process John Marshall's court usurped. For the record, Freedom of Speech is curtailed and regulated in many ways. The 1917 Espionage Act, 18 U.S.C. § 792 et seq, as amended, regarding classified materiel prohibits the disclosure (by speech or any other way) of national defense and other kinds of classified information. We also do not allow incitement of riot or insurrection, which clearly is a kind of speech, nor do we countenance that basic rule that yelling "fire" in the theatre is okay. Speech on social media will be coming up soon for regulation. We should all hope that the decision protects us and speech—in that order. All of this brings me to announcing an article in the New York Review of Books, of November 18, 2022, "Originalism's Charade," by David Cole, for all of you who are aghast over the antics of Clarence Thomas and Samuel Alito, Brett Cavanaugh, Neil Gorsuch, and Amy Coney Barrett, these being the avowed "originalists" on the current SCOTUS. JB Index: Government
10 December 2022
SCOTUS
I have written about this many times before. "Judicial Review" is not constitutional. It was deliberately left out of the Constitution of 1787-8, deliberated for months, but in the end left out. John Marshall was over the top in Marbury v. Madison by claiming the right to declare Congressionally created and Presidentially agreed to laws unconstitutional. Just so we are clear on this very important point, "Judicial Review" is a form of legislation, negative to be sure, but not always completely negative, as with the Voting Rights Act of 1965 or Obama Care being dismantled piecemeal by the Court. The foundational concept of our constitutional system is the separation of powers. Legislation belongs to the Housume of Representatives and the Senate, not to the President or any part of the Executive and not to the Judicial branch of our goverment, either. Everyone wants a "line-item veto," including the principals of the SCOTUS. According to our founding principles, only the Legislative branch can create and edit the law. Editing or line-item vetoing necessarily changes the meaning of a document, including laws. Supreme Court Justices do not serve "for life." The Constitution says that they serve "during good behavior" (Article III, Section 1.) Those who do not understand the creative process that resulted in the Constitution should realize that, if the Framers—who were the elite educated of their era—wanted anyone to serve until they died, they could and would have said so politely, directly, and clearly. This is both a "textualist" and "orginalist" interpretation. They didn't, and several factors enter the issue now. Life expectancy was significantly shorter in the 18th c., so having a seat on the bench for 40+ years was leerally unimaginable. Behavior was not better then than now, amazingly so given Clarence Thomas, so it could be imagined that sooner or later one or more justices would trip and fall and lose his tenure. There is a case now before SCOTUS called "Moore v. Harper" in which the idea that state legislatures have complete control of elections and without any checks or balances from state executive or judiciary. The idea, not so much a Theory as a Hail Mary raised by Dr. John Eastman, the architect of the January Sixth and fake electors plot to overturn the 2020 Election. We are told that the dissent in Bush v. Gore (2000) contained whispers of this idea, but REALLY?, dissent is not precedent, only history. States do not have complete and final authority. The Constitution governs the entire country and in Article IV, Section 4. we see the following: "The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence." Needless to say, perhaps, "Republican Form" means "representative democracy" in 1788 and 2022. Also needless to say, domestic violence is use of force against the citizens of the country and against their rights. Noodling this endlessly in the media does not dilute a bit of it. JB Category: Government
11 November 2022
Self-Deception
Today is Veterans Day in the United States. I am a combat-zone veteran—US Navy, three ships and five years at sea— which is almost meaningless now, but at the time was full of tentialities and anxieties. The November 8th General Election in the US is still hanging by several threads. It is still possible, mathematically, if not statistically, for the Democrats to hold the House, and in the Senate, many are predicting that an even 50-50 split will give Vice President Kamala Harris more work for the next two years. The point I would like to make today is that it is too easy to say that America still has a functioningsu democracy, given that the Republican Party, led currently by Trump, the smaller of the two major political parties in America, is forthrightly not in favor of free, full, and fair elections — democracy. Trump himself is surely soon ready to be dethroned—which will happen in the near aftermath of his arraignment in US District Court of Washington, DC, for various crimes related to espionage and obstruction of justice. But the point is: not quite half of America is committed to restricted democracy in which non-white, non-Christian, non-straight persons will have to struggle to have their voice heard in our elections. Nevertheless, I am and Nicolle Wallace and literally millions of Americans are greatly relieved that this election has had the result it so far has. Women have won amazing political ground all across the country. Gretchen Whitmer emerges even more strongly as the next possible femme candidate for President. Her saga is one of those stories you would not dare to invent as a novel. Michigan is bright Blue today. My favorite person in politics now is Mallory McMorrow, State Senator in Michigan. She is now and going to be very important to this world. My take-away from this election is that there are many very fine people available for public service in our country, people who see the country for what it is and can be. Seeing one's subject as closely as possible to what it actually is, and not as one hopes and wishes, is the trick that eludes us humans continuously. I will venture that those who understood their environments most accurately survived. Of course, there were soon Other groups surviving, but with different assumptions about nearly everything. This compounds the interest in getting it right, understanding things accurately. The Trumpists understand that things of all kinds are not what they could be, and they prey on the imaginations of unsophisticated people (and as those who see themselves as leaders and wielders of power over them). The idea is to re-tribalize the mass of people, pitting one society with all its good and bad points against another. The essential elements are division and between divisions antipathy. We are not yet done with that, but in the US there is still hope. In Russia, though, hope is a thin gruel. Masha Gessen wrote the lead article in the October 17th edition of The New Yorker Magazine in the THE TALK OF THE TOWN section, a Comment titled "Different Worlds." (The piece is not available online.) Her point is that there is a notion and ideology of there being a "Russian World" in which, as Putin describes it (in her words and translations) ... ... the West destroyed the Soviet Union in 1991, but Russia came back, defiant, and strong. Now the West wants to destroy Russia. "They see our thought and our philosophy as a direct threat," he said. That is why they target our philosophers [N.B.:Aleksandr Dugin and killing instead his daughter Darya] for murder." The ultimate goal of the West—specifically, the United States and Great Britain—is to subjugate people around the world and force them to give up traditional values, to have "'parent No.1,' 'parent No.2,' and 'parent No.3' instead of mother and father (they have completely lost it !)" and to teach schoolchildren that "there are some other genders besides men and women and offer them sex-change operations." Putin has said, repeatedly, that only Russia can save the world from this menace. Ms. Gessen does not point to the Russian Orthodox Church in her article, but it screams between the lines as the pillar of righteous indignation over the destruction of age-old values that have suppressed the reality of humanity. This point underlines the unpleasant fact in reality that much of what must be (un)done (Chto delat') is institutional and encrusted by tradition with formidable "truthiness" and outright falsehoods. Clearly Putin must understand, personally, that his sculpting of the Russian world is completely ephemeral. Power cannot abide the thought of never having power again. Or, perhaps, it is more accurate to say that it always has this frame on its thoughts, a constant reminder of impermanence and, therefore, the endless quest for something enduring. They will, it seems, deceive themselves endlessly. JB Category: Government
21 October 2022
Listening Carefully
Today, on MSNBC's Dateline White House with Nicolle Wallace, two guests said things that looked and sounded as "asides." They were not. Zoe Lofgren, Representative from California (D) of the January Sixth Select Committee, one of four attorneys on the Committee was being pressed by Nicolle to divulge what the Committee has in mind now that they have issued a subpoena to Donald J. Trump for sworn testimony and documents. She is not authorized by the Committee Chair to say too much, but all of them do "accidentally" say things that are interesting. The Congresswoman said (paraphrasing): well you should look at the list of documents we are asking for.pou should find something of interest in that list, perhaps something unexpected. Nicolle had not yet memorized the list, so she let the comment pass with barely a wave of her hand. Here is the subpoena itself. You should scroll down and read carefully the long list of documentary evidence they want. The other guest, who was on at the same time as Trump's former attorney Michael Cohen, was Neal Katyal, former Acting Solicitor General under President Obama. First, I am hoping that the MSNBC staff get the tape of the Cohen interview online soon. He was voluable and as impatient as most of us are to know what Merrick Garland will do, in both of the main cases: the Mara Lago classified documents and the January Sixth Insurrection and the Run-Up and Aftermath. Cohen was beside himself (almost) with the anxiety of Trump wandering around in the "wild" with Top Secret information to sell to MBS in Saudi Arabia or someone in President Xi's retinue or adversary group in China. What then happened was the comment of Neal Katyal. Paraphrasing again: I think law enforcement has him (Trump) where he cannot do any harm. He's not dangerous right now. REALLY! I was hoping this might be the case, while Merrick AG Garland wrings his hands again and again. So, unless I am dreaming, FBI and Secret Service (such as it is) are within a pounce of him, if he so much as makes a call to Tuscany for special mushrooms. Who really knows. Professor Neal Katyal very well might. JB N.B. The changes to the website are because I seem to have been hacked, or my aged fingers typed in some amazingly sturdy code that makes the old format inoperable. Category: Government
17 October 2022
Fidelity The complex title to this short essay is a combination of the mottos of two of the most important agencies of the federal government, the FBI and the Secret SI wrote in my very recent essay on "Accountability and Normalization" this concluding sentence: The lesson is: if you do not demand accountability, you will normalize bad behavior, in this case the Secret Service must be drained like a fever-ridden swamp and the FBI (and DoJ, itself,) must be thoroughly cleaned so that it can finally get "it's arms around" the domestic terrorism insurgenoblem that we have all be nervously ignoring for 27 years, since McVeigh blew up the Murrah Federal Building in Oklahoma City, killing 168 and injuring hundreds more. We (Congress) could begin with a good Insurrection and Domestic Terrorism Law. Let me dispatch the last idea at once. Writing a new law about domestic terrorism and insurrection is impossible with a Congress that will inevitably see it aimed at politics as it is now practiced by one of the two major parties in America. The Department of Justice will have to get along with the ragged set of laws we do have, but the consequences are that terrorists can be very cunning about existing laws, and will escape the kind of sentences that they richly deserve. More important is the fact that when justice is cobbled together like it is now, the cobblers lose incentive and the will to go where they must. Alas! As for the FBI and the Secret Service the mottos of which are my title today, cleaning them out really does run up against the 1st Amendment on a case by case review of agents whose reflexes are no longer reflective of their oaths of office in some measure. Nicolle Wallace and Frank Figliuzzi and Peter Strzok and Andrew Weissmann discussed this today on Deadline White House. Frank Figliuzzi went first and admitted that there are agents who refuse to carry out assignments because their politics tells them that it is a waste of time or that what the perps did does not rise to the level that would justify their attention. He also said, and the others agreed, that FBI Director Christopher Wray misspoke (at least) when he said the FBI did not specific intelligence about the run-up to and the insurrection as it played out on January 6th. Figliuzzi was Assistant Director for counterintelligence at the FBI during 25 years of service. He is, in my opinion and his, biased toward the FBI, but a straight-shooter when the way to get things fixed can no longer be done quietly. Here is an article he wrote over the weekend on this subject: Intelligence failures before Jan. 6 warrant ever more investigation. Please read this. It is obvious, too, I hope, that the Secret Service that has been in trouble since its misbehaviors (with prostitutes) in Columbia, South America, while protecting President Obama, but recently against polite requests and official demands for their phonetexts during January 6th, refuse and instead destroyed them, is due for a renovation. The DHS seems incapable of getting them to honor their oaths of office, and the new Director (9/17/2022), Kimberly Cheatle, in her first month has not yet gotten a handle on the agency. Along with Chris Wray, Ms. Cheatle may not be in charge much longer. If I were the President or Vice President right now I would be asking the Marine Corps to substitute for the Secret Service. I would do that on the 18th of October this year. The Marines certainly will not have the same sort of expertise, but they can field a dependable group of personnel, while the Secret Service's ability to do that is highly questionable. Then, Christopher Wray and I would be having an important talk. Wray was appointed by the previous President, you know, and Joe Biden has kept him on for any of a handful of reasons, one, that changing the leadership too often drains out the esprit de corps, which includes the tradition of iron-clad political neutrality. Wray may want to keep the job, so if I were Biden I would give him 15 days to present to the President his plan for cleaning the FBI, for clearly some of its personnel are not living up to any part of their motto of Fidelity, Bravery, or Integrity. JB Archv: Government
13 October 2022
Accountability or Normalization
Lehman Brothers Holdings Inc., founded in 1850 in Montgomery, Alabama, Headquartered in New York City, declared Chapter 11 bankruptcy liquidation on September 15th, 2008. The company was comprised of 25,000 employees involved in investment banking, trading in securities, including US Treasury securities, and among their holdings and those to be traded or used as security for other transactions were tranches of paper containing sub-prime mortgages, so sub-prime as to suggest to clients that the company was going to fail. Clients left and it became a self-fulfilling prophesy. What ensued was the Great Recession as, world-wide, financial institutions lost their confidence that their trading parters were actually solvent or that the securities they held in good-faith were worth anything at all. Another self-fulfilling prophesy, and the Great Recession ensued and lasted, officially, until mid-2009, just over a year and a half as measured from December 2007, when, in retrospect is has been acknowledged that the US housing boom bubble had popped and home mortgages made to people whose mortgage debt now greatly exceeded the value of their property walked away from them. This nutshell view cannot possibly contain everything that transpired. At the root of Lehman Bros. problem was "dishonest" accounting, probably understood by the perps as "deceptive" accounting, a tangle of interpretations that seemed to allow Lehman to disguise its weaknesses. The disguise worked for a while, and those who began the effort continued. In fact, others picked up some of the new accounting. So, it was determined later in the rubble of the global financial systems that Lehman had taken totally unacceptable risks, but that had bent, but not technically broken the law or even the Accounting Principles governing US and most terrestrial finance business. Henry Paulson was the Secretary of the Treasury under President George W. Bush. To put it briefly, he was unable to assess the extent of the problem while in office, and so when President Barack Obama was elected and inherited the mess on Wall Street, it was actually a mess on Main Street, too, everywhere on the planet. Hold that thought! Timothy Geithner, President of the Federal Reserve Bank of New York, became Pres. Obama's Secretary of the Treasury until 2013, by which time, the global finance system comprised of the Federal Reserve, the Exchequer in UK, and similar government entities in other first and second world countries, plus a myriad of finance and banking private companies and corporations were unsteadily back in business. How did that happen without (a) the perps being called to account (!) and (b) Main Street not being made whole—or at least some version of "whole." A complete global collapse of economies was averted. In fact, a page of the US Treasury website says he, Geithner, was responsible for avertng global economic collapse and damage to the US economy. This is a fanciful idea, which you would be well-advised to keep to yourself on and off Main Street. The damage to the economy has never been repaired, the damage done to millions of householders, wage-earners, and their children who ended up not going to college after all. In fact, the masses did notice that being made whole—or at least as "whole" as Wall St. was—did not happen and did not seem to trouble their usual politicians, so when Ms. Clinton called some of them "deplorables," they turned a page on American political history and elected Donald J. Trump to the Presidency. This is the lesson I wish to draw from these four paragraphs: better not wash one's hands of the accountability side of any disaster, or you will be playing whack-a-mole ever afterward. As Liz Cheney said yesterday, if there is no accountability, it (whatever it is) becomes normal ... and will happen again. What Obama and Geithner were faced with is a multi-fold problem with two main concepts undergirding the nature and limitations of their response to the problem. One, the US dollar was and is the dominant Reserve Currency of the World, which is both an enviable position for the US, but full of responsibilities and hazards. It is considered a matter of national security that this position is maintained. So, Obama and Geithner had to see to it. And, two, the US part of the global financial structure was, on horseback appraisal, stronger than virtually any other, but it was weakened in areas not yet completely discovered or understood. Obama let Geithner "save" Wall St. without prosecutions that would have destabilized their recovery. The perps got a pass, because the perps were the only ones who really know how to run a global economy. This policy news never reached the masses, much less the deplorables. Congresswoman Liz Cheney has guided the January Sixth Committee well toward the goal of identifying Donald John Trump as the #1 actor in the January 6, 2021 Insurrection at the Capitol. The 13 October two and a half hours Select Committee public report and rmeeting had some surprises for us. The one that struck me hardest was the problem that seems to exist within the US Secret Service and the FBI, namely, that there are a substantial number of personnel in either organization that sympathize/d with the armed mob that Trump called to Washington and told to go to the Capitol to protest, but actually to interfere with the ceremonial counting of the Electoral Votes by Vice President Pence, perhaps to assassinate him and Speaker Pelosi, as well. It is pretty clear from the shrapnel of the Committee disclosures that the Secret Service and FBI had tons of intelligence about the gathering mob days and weeks before the event took place—as I wrote in my essay on January 7th—but for reasons that will come out later, hopefully, chose not to use it. Why? The case of subversive personnel in the Secret Service and FBI is vaguely analogous to the situation encountered by President Obama. He knew that Timothy Geithner was a banker's banker, a person from the "financial class," but he needed someone who knew what he was doing, given that the main objective was to save the global economy, piece by piece, starting with the US. He understood that Geithner and he would be depending on the suspected perps to make the system work again. He agreed with anyone who said that charging the perps with irresponsible behaviors in court would be counter-productive, yet, as I have written above, not doing so would ignor the necessity for accountability and promote world-risky behaviors in the future. Now President Biden and Vice President Harris are serving with protection from the Secret Service and hoping that Secretary of Homeland Security, Mayorkas, and that AG Merrick Garland are sufficiently secure in their assessments of the Secret Service and of the FBI, respectively, for DoJ to attempt charging Donald J. Trump for a list of federal crimes as long as your arm, hoping to win and send him away for his few remaining days, but, PIVOTALLY, hoping more that the consternation that will ensue from charging, arraigning, trying, and convicting Trump will not bring Oath-Keepers, 3%-ers, and Proud-Boys into the streets armed to the teeth, trying to start a new civil war, and, by the way, that the POTUS and VPOTUS can be protected. The lesson is: if you do not demand accountability, you will normalize bad behavior, in this case the Secret Service must be drained like a fever-ridden swamp and the FBI (and DoJ, itself,) must be thoroughly cleaned so that it can finally get "it's arms around" the domestic terrorism insurgency problem that we have all be nervously ignoring for 27 years, since McVeigh blew up the Murrah Federal Building in Oklahoma City, killing 168 and injuring hundreds more. We (Congress) could begin with a good Insurrection and Domestic Terrorism Law. JB Archv: Government
1 October 2022
The Court
As some of you know, I am not a fan of the Supreme Court. More, I am sure that the Constitution does not provide (a) lifetime terms of office for Article III judges and justices, and (b) the Constitution DELIBERATELY does not provide for "judicial review," as conceived by Chief Justice John Marshall in the notorious case of Marbury v. Madison. The Constitution says that justices and judges are appointed on "good behavior." I can see how that could be construed as an endless term—if the person behaves well and does not experience dementia or other mental deficits or do not recuse themselves when they are clearly in a conflict of interest personal, political, or intellectual. As I have said and repeated here, "judicial review"—the act of declaring a law unconstitutional or not commenting on its constitutionality was discussed at length in Philadelphia at the Convention and it was decided that the Constitution should not give Article III such powers over Article II and Article I branches of government. It is more than a check, and certainly completely imbalanced. The Court is fallible, but it it has the power to nullify law, fallibility is unacceptable. So there it is: either hire infallible justices or restrict them to ruling on cases. If the Court comes up with the same verdict again and again—which they might—then Congress should take note and fix the law the Court finds so onerous, but must must leave intact. Today in the NYTimes there is a Guest Essay about the Court and about President Biden's reluctance to fix it. His reluctance will be his undoing. For whatever it matters, that reluctance is the single thing that makes me hope he does not run again, even considering the good work he has done. Being an "institutionalist" is not a decision to stand pat on broken and abused and misused parts of government, or it should not be. I urge Joe Biden to get down off that long-legged horse and augment the Court with responsible jurists—six more would be the minimum necessary to avoid catastrophic damage to our society. JB Archv: Government
27 September 5783
Minority Rule
For most of you the idea of minority rule is not abhorrent. You are sufficiently aware that when fewer than 50% of registered voters bother to vote, that is minority rule. You are also aware of the history of the Republic, namely that it was begun as a white, property owners, representative (not direct) democracy, therefore, definitely minority rule. Most of you recoil at the use of the term "fascism" to describe minority rule, probably because you do not see yourself as having a voice in a fascistic situation, whereas you do see a place for your contribution in minority rule. This is the great pivot point we are now facing. On Monday evening Rachel Maddow on her show at MSNBC began with what for me was the startling news that Italy, where I was homeported for a year back a long time ago, when communist labor unions and mafia assassinations were the bogeys in the news, has just chosen Giorgia Meloni as its first femme prime minister. She represents, in a multi-party system, the far right. Her share of the Italian vote is 26%, with the rest all getting less. Her Brothers of Italy Party will join with other rightwing parties of Berlusconi and Salvini to achieve around 45% of the vote. I misunderstood Rachel to say that Giorgia is the grand-daughter of Benito Mussolini. The European and Mediterranean media do not say so. The Times of Israel says Often intense and combative as she rails against the European Union, mass immigration and “LGBT lobbies,” the 45-year-old has swept up disaffected voters and built a powerful personal brand. “I am Giorgia, I am a woman, I am a mother, I am Italian, I am Christian,” she declared at a 2019 rally in Rome. Brothers of Italy grew out of the country’s post-fascist movement, but Meloni has sought to distance herself from the past, while refusing to renounce it entirely. Rachel then pointed out that Viktor Orban in Hungary and the PM in Poland are also from the far right and instituting minority rule, although in the case of Poland the personality of a charismatic leader is not evident. What is evident in both, and probably Italy, too, is that there are vocal and active remnants of the far left, including Comintern remnants now focal points of state repression, as well as the recent rise of hitherto repressed groups like the LGBTQ and ethnic and religious minorities, all of which is very disconcerting to some. So, the new large scale vocal desire for minority rule in the United States may have some of the same points of contact with European nations, which are basically the emergence of repressed minorities such as Blacks, LGBTQ populations, in certain areas Asians, stark cultural and religious differences, and fear of losing one's putative voice in the polity. I say it that way, because we know that many people eligible to vote do not, or at least have not until the arrival of the oddly charismatic Donald J. Trump and his alliance with the ever-present White Supremacy tribes in America. Minority rule is fascism when those who rule continue the process of reducing the elements of the populace who could vote. So, I think it was David Corn on the Maddow show who said that the Republican Party has been the one in America to fight off the fascistic elements in society, such as the Birchers, Joe McCarthy, the Tea Party, but met its match in Trump. Republicans were predictably going to lose to the fascistic elements as their share of the popular vote inexorably declined. They needed voters and so as the middle politics group became less and less accessible they turned to the far right for help. The help they got will probably destroy them. Many of my associates and friends frequently say they vote for the man or woman based on their character, their ability to lead or legislate. They fastidiously eschew both of the political parties, as if this were an act of purification. They do not watch the sausage being made, is the point. The plain fact is that democracy involves everyone who has an opinion: the far right, the far left, the religious zealots, the unassimilated, the old-line, the idealistic young, the old, everyone. So, those willing to vote for minority rule have to consider what are the animating features of the minority. Is it continued voter-suppression until a full-on dictatorship is achieved? It is totally irresponsible to ignore the motives and goals of your bed-fellows, you know! We know you are frustrated, but get a grip on what you are doing. The road from Youngstown to Jonestown is short! I believe that Corn is correct, that the duty Republicans have had all these years is to hold off the nutcase far-right and to isolate, then smother them. The Democrats have had the burden of holding off the far left, the outright communists, because they were clearly in favor of a dictatorship (of the proletariat) and the socialists, because, well, they would take from the rich to give to the poor, the needy, the huddled masses yearning to breathe free (but unwilling to work for it, they said.) They are still saying that as the Republicans now in league with QAnon will believe anything at all that gives them the vocabulary to vent. It is not political therapy; it is political suicide! JB Archv: Government
21 September 22
The Last Day of Summer 2022
It has been hot here! Five straight weeks of high 90's and low 100's temperatures with more humidity than usual, too. Growing up in the D.C. area we slogged through high 90s temps and 90s% humidity — without air conditioning. Just fans. The evenings were very muggy. I remember wondering why we lived in such a place, but clearly there were worse places. I will take humidity over mosquitos any day. Last Days are a thing with humans. Some of the contemporary Christians are obsessive about Last Days, particularly those rangy, less organized congregations led by charismatic pastors, some with a notion that the bigger the audience, the more the donations. The background of fear—of death—is universal, partly because no one knows what it is like to be dead. So religions and even ideologies palliate fear with doctrines of righteous behaviors likely to make the trip through life a bit more acceptable, if not actually appetizing—but hopefully. Remember, a third, at least, of all humanity lives on the edge of economic poverty, to say nothing of intellectual poverty. It was more vivid when we hunted and gathered, but in a state of nature, so to speak, the ideals are quite different from downtown Middleboro in 1927 or a hundred years later in Phoenix. We try to plan so that the bumps do not destroy us or ruin what we have built to make things easier for us. When Great Britain was ruled by divine-right kings, a genetic line out of north-central Europe in what is now called Germany, and when mental illness infected the king, those who were affected by it wondered what could be done. How do we plan a world, a life for ourselves, that is not tormented and abused by mad kings and their evil courtiers? Typically, human beings put off until "tomorrow" things they hope and believe will be less onerous as time passes. Sweeping things under the rug is one way of getting things out of sight and out of mind. This happens at the level of nations and households and begins with individuals. The summer of 1787 in Philadelphia, in the Commonwealth of Pennsylvania, was hot and humid, oppressive. This is the consensus of historians. It fits, they say, with the heroic nature of the task at hand that summer: to create a nation from the tatters of that present with the human resources at hand. It was, at once, a daring thing to do, but as we know the situation had been lumping up under the rug for a very long time, time enough to accumulate nearly 700,000 slaves in the colonies, now "sovereign" states, political entities made recently from companies chartered for the venture capitalists by the King of England, the current iteration of that office, George III, now raving mad. We, as their critics have to give the conventioneers the benefit of our understanding what they knew, what they wanted to do, what impediments there were, the known unknowns and the unknown unknowns. Remember coal was just coming into more widespread use in the colonies at this time, wood and whale oil were used in the main. Electricity had not been understood, much less harnessed. Petroleum was yet to be discovered. Indoor plumbing was known, but not widely. The lifespan of a male person at birth was around forty years; at age 20 perhaps 55-65 years. The white population of America was a mix of literate and barely literate and refugee populations like the first colonists of Georgia, convicts and ne'er-do-wells from the bustle of British civilization. The common term among the conventioneers was "rabble." This rabble vastly outnumbered the mercantile classes and the well-educated. They decided to have a republic, a representative democracy, despite all the plausible issues surrounding them. So, the first thing we can say is that the conventioneers were idealists in the sense that they had read the major works of the European Enlightenment, understood the principles as rational responses to the human condition and the natural world. And, they forged onward to assemble pieces of government into a constitution that would guide themselves, their countrymen, and their descendants in the business of running a new country, separate (they hoped) from most things (almost) they had ever known about real governments. But they did not question their mutual beliefs about human nature, and at this stage their worries about the natural world were not yet considering the human impact on it. A representative democracy was, nevertheless, something that would give conventioneers nightmares in the sweaty nights in Philadelphia. How would they keep the engine (a new idea spawned by James Watt very recently) from running away with itself. The mechanical governor had been invented to keep steam engines from explosive behavior. They knew that the House of Lords had some calming/squelching effect of the House of Commons, so they invented the Senate, borrowing from the ancient Roman Republic a name and a readymade reputation. They were confronted by the fact that Rhode Island and Delaware and New Hampshire were small and Pennsylvania, Virginia, New York, Massachusetts were populous, so they saw that the Senate could be that device to quell the worst fears of the rabble in their new House of Representatives. It was anti-democratic from its inception. And then they created another hedge against the power of the rabble, the Electoral College, a device to water down the raw opinion of the rabble about who should be President to a palatable and manageable level ... by the educated and business classes. The conventioneers did not ever think of the states as ficticious sovereignties, but they were! There could have been jurisdictions called states that did not have sovereign powers, but the slavery issue paramount among many others convinced the conventioneers that they needed a way of getting these big issues off the table, a system of carpets under which to sweep the intractible issues of the day. States! Give them the problems, and let's see what they do with them! What an appealing idea! Off-load huge problems to states, but hedge them in with national guarantees of liberties. It was understood but barely spoken of, and never in terms of the "under the carpet." Significant members of the media, the legal profession, politicians, and retired old men, believe that the Constitutional "Order" is so broken, frayed, and poorly conceived that we have no choice but to begin again with a system that works in a world where quantum mechanics and general relativity and granular globalism and colonizing Mars are real ideas with real consequences for normal people seeking a reasonably comfortable and fear-free life. The contemporary circumstances look like they could erupt into chaos at any moment —easily when the fascists deny the results of the 2022 Congressional Election— and, therefore, we should be ready and poised to do what must be done. Begin anew! Again! JB Archv: Government
1 September 22
"The Security Jeopardy Fallout!"
When you leave a job where you have been working with classified materiel, you are given a debriefing in which you sign a document affirming that you will not talk about anything classified you have seen or heard. You do this with the understanding that you are a target now (if not already) of foreign agents who would dearly love to get you in a compromising situation and learn something their country does not yet know about our national defense and national security. It is pretty clear that Donald J. Trump, if he signed such a document, did not read it, did not listen to the person debriefing him, and fully intended to do whatever he wanted with national security information, since the laws on the subject clearly could not possibly pertain to him. He was very wrong, and the result has to be that he is taken out of circulation until he fully understands what he has done to this country. Sue Gordon the Former Principal Deputy Director of National Intelligence at ODNI — was on Deadline White House on MSNBC yesterday (8/31/22) in a series of conversations with Nicolle Wallace, analysts and guests about the troves of stolen classified information, NDI and some S/CSI and TS/CSI, seized at Mara Lago. Among them Frank Figliuzzi, former Assistant Director of Counter Intelligence at the FBI has been giving us an appreciation of the severity of the breach of security and compromise of national defense information. Gordon gave it even more gravity. The problem for those of us on the outside is that classfied materiel sounds interesting, but we cannot know what it is about or what it says. This will be true even in a judicial case against Trump, if it is decided that the materiel stolen can be protected now and a trial can be mounted against him. There is the possibility that TS/SCI information is SO SENSITIVE that the DNI cannot risk exposing it to anyone in the judicial processes. So, the most interesting part of the breach of security is not the breach, but the information, and the half-life of that information can be a very long time. My guess is that the result(s) of the Trump breach of security will pop up years from now and still be exceedingly embarrassing. It is possible that the information about French President Macron has already surfaced and become known. Why else among all the trove of hundreds of documents, one and only one has been identified to a subject, namely, as relating to the French President? Is this the US way of acknowledging a complaint by the French that the information has already surfaced. France is our oldest ally, you know. If it were not for the French Fleet, Yorktown would have gone the other way. The damage assessment of the Trump Breach is going to a hair-raising event. Flies on the wall will not be allowed out of the room. A compromise lasting 19 months means the materiel is essentially in the public domain, whatever it is, and as quietly as possible counter-measures must be and are now being taken, HUMINT sources are being withdrawn, microphones in vases of dried flowers are no longer to be trusted. And, we have to deal with the source of this debacle. Trump will not be quiet about what he has stolen and read. He is a braggadocious monetizing egomaniac. There is no controlling him at arms length. We cannot afford to have him on the loose. If 74 million Americans had not voted for him, he would be in Guantanamo right now, his civil liberties suspended permanently, and his coterie would be facing prison bars from the inside. Yes, this is that serious. Without details it is difficult for the general public and Trump partisans, particularly, to understand the full impact of what has happened and could happen shortly. It sounds academcic and over-blown, and possibly untrue. Meanwhile, the Five Eyes nations: Australia, New Zealand, Canada, US, UK depend on each other for the safety of their intelligence operatives and technology. There are other nations with which we share intel, also, France, Japan, Norway, and other NATO nations. The compromise of the US classified information sends a shudder out among all of them. They have a right to know whether their contributions and, therefore, their assets have been compromised. And around it goes in an almost never ending splash of embarrassed horror. The kid gloves treatment received by Trump so far will stop at some point. Lindsey Graham's threat of riots in the streets either will or will not take place. I would like to believe Lawrence O'Donnell, who believes the mass of Trump voters will sit on their hands quietly at home—and so far he is mostly right. Lone wolves will emerge, get killed by police, and that will be it. Trump will—must—disappear. It is all his own doing, and in many respects it is the best thing for the country and the world. Graham will get over him, even if he cannot retrieve the 8x10 glossies of their encounter. If you are still wondering "what could go wrong" because of the Trump Breach, your imagination is under-nourished. Russia and China are and will continue to exploit everyone who was close to Trump, everyone of them are blackmailable! Iran is deeply into this, and the result we do not want is a nuclear Iran, but there was nuclear information, we think, in the Breach. Saudi Arabia is also a probable nuclear beneficiary. Any nation trading with Russia during the Ukraine War is a possible suspect. Our ability to control crisis situations is diminished already by the Breach itself, and the divulging of that classified information could easly turn a tide against us. And, you know, Trump does not care a bit. JB also in: Government
22 August 22
"Egregiously Wrong!"
Nine Supreme Court Justices v. 535 Members of Congress is one way to look at the issue. David Cole takes several other pathways in his article "Egregiously Wrong" in the New York Review of Books of August 18th. Cole is the National Legal Director of the ACLU and the Honorable George J. Mitchell Professor in Law and Public Policy at the Georgetown University Law Center. (I realize that not all readers subscribe, but I heartily recommend that you do, and if you cannot, please let me know if you want a single copy of this article or any other I may in the past or future refer to.) I think one of Cole's best points is taken in his discussion of originalism, the fact that of the whole multitude of Justices ever seated in the Supreme Court only a small handful have been "originalists." That means that the points of view taken by the 2022 Court with five originalists seated: Thomas, Alito, Cavanaugh, Barrett, and Gorsuch, are not coherent with what the court's majority points of view have been for most of its 232 years of operations. What this means is that the court now has the ideological wherewithal to overturn virtually any previous decision of the Court. I have spoken already about the concept of "judicial review" itself as being unconstitutional. The concept was discussed in that Philadelphia 1787 year of Constitution writing. There were proponents and they lost. They did not persuade the Convention to include supreme court judicial review in the Constitution. The idea was rejected. It was not an oversight! Judicial review as Chief Justice John Marshall created it, is not in the Constitution—deliberately. It is a pernicious doctrine with supporters in the states and the federal government and passive critics in all those places, too, all of which does not make judicial review legal, constitutional, or advisable. That five justices can overturn the Congress and the Executive is ludicrous. Cole does not address this. The problems the 2022 Court presents are adequately set out by Cole. They should raise the hair on the back of our necks, but that phylogenetic display is far from enough. It scares no one, protects no one, and it is easily dismissed in the welter of politics and legal matters before us. The question is how to reform the Judiciary of the United States from the top down within a political situation such as the one we will have in 2023? We will probably have a Senate that is tractible. We may have a willing House of Representatives. We need constitutional amendments to actually fix the situation, but statutes will have to do, since the politics of the nation continues to be infected by violent and irrational ultra-radicals. When I was born the life expectancy of a male was 47 years. In 1800 it was 30-40 years. The median male age in 1800 was 33.9 years. Obviously average age of the politicians who wrote the Constitution was well above that, but it was not 82 years. We now live too long to give anyone a job for 40 years, committing ourselves to his or her point of view for that long time. The first thing we must do is cure all the "lifetime" appointments. How to do that without amending the constitution is by contract. Offer justices and judges fifteen year contract-appointments, acknowledging that the Constitution states that "Judges of both of the supreme and inferior Courts, shall hold their Offices during good Behavior ..." [nothing further on length of service], which was erroneously interpreted as "perpetual" (or lifetime), which should now beunderstood as "not perpetual," and given as fifteen years of continuous service, as befits the experience and expectations of this service, i.e., more than twice any other term of Office of the government. We then must pass a law that specifically denies to the Supreme Court the sole privilege of "judicial review," but which asserts the common-sense notion that "constitutionality" is the responsibility of those who make the laws, so ... Congress must specifically assume that duty, and in consideration that many members of Congress, although they may have law degrees, are NOT constitutional scholars, that Congress must consult with the Judiciary in the writing of the law. The Judiciary consulted would be that part of the national judicial system that typically deals with the matters at hand. It is fatuous to think that five of the Supreme Court Justices are sufficiently knowledgeable about everything to attemp "judicial review" of everything. The question of whether the US Constitution permits the US Congress to make specific laws, might well be reconsidered not as a "permission" but as a "responsibility," and in any case, the Chief Justice of the Supreme Court could advise the legislative process about that during the writing of the bill. Finally, (for this essay), the fantasy that human rights are the province of states — because the nascent federal government of 1787 saw that it would be the overwhelming (and dis-unifying) question of slavery on Day One, and so punted unenumerated human rights to the states — must be acknowledged as the ugly cowardice fantasy that it was and, therefore, human rights are solely the responsibility of the federal government, given that human beings are equally human in every place. This includes laws regarding detention, incarceration, and capital and corporal punishments, requiring that state laws be completely consistent with federal law. JB also: Government
12 August 22
Classified Materiel
I resigned my USN commission for a USNR commission in early 1967 and quietly became a Lieutenant (O-3) on inactive duty. I had been on active duty in the summers of 1959, 1960, and 1961 as a midshipman, then assigned successively to three ships in various billets. First ship was assigned to a 9-month cruise to Antarctica, where I was the only person aboard having studied Russian. Second ship was homeported in Naples, Italy, for just over a year. I was Navigator and collateral duty intelligence officer and classified materiel control officer and top secret materiel control officer. On this ship we twice encountered Soviet military forces in what in those days was called "navigational harassment situations." Third ship I was Operations Officer in charge of the Communications Officer, the Navigator, Signals NCO, Combat Information Officer, and again intelligence officer and top secret and lower classifications materiel control officer in the combat zone of the Vietnam War. The last official thing I did was courier a lot of classified materiel from Japan to CONUS, most of it, I was told, could not be destroyed in Japan, probably to impress upon me that it was top secret NOFORN stuff. That was all a very long time ago, and clearly nothing I have seen or written here is the least bit relevant (or classified) all these 55 years later. Still, there are probably people who would like to inject me with something to get me to talk about it all. Utterly futile! I cannot remember what I had for lunch a couple days ago. My point, though, is that I have some passing acquaintance with the rules and regs about classified materiel during the cold war and a hot war. Donald J. Trump is a businessman. He does not understand people who are not engaged in the business of making money for its own sake. He does not and did not understand anything about classified materiel or the subjects of that genre. What he knows about nuclear weapons the average sixth-grader knows. What he knows and respects about sources and methods of national defense secrets is virtually nothing. He does know how to collect intelligence about banks, real estate buyers and sellers, prospects, ideosyncracies, weaknesses, and such. He listens in his world for snippets of such information and locks it in his head. The other thing about being a businessman is that Donald sees the world as some sort of game where you buy and sell stuff and use money to carry out the transaction — and that having money is important, almost as important as making other people believe you have money. So, perforce, Donald knows how to monitize almost anything: golf, hotel rooms, charities, universities, etc. You probably see where I am going with this. The FBI searched Mara Lago under the provisions of a warrant, which refers to three different federal laws, to which you can refer at the linked report, one of them being the Espionage Act. This is where my attention is right now, where my own eyes and ears are directed, because buried in the rational of these laws is the concept of Treason. All the furor, so far, has been about what kind of hightly sensitive documents are involved, and how to lawfully retrieve them. So far not one of the legal experts, news hosts, or former and experienced federal national security personnel have mentioned the aching question about retrieval. That question is: did Donald J. Trump, former President of the United States, have any document, but particularly any highly sensitive document, photocopied, and uploaded to the internet? !!! The federal government is bending over backwards to keep its process as pristine as possible, but there are questions aplenty of why it has taken eighteen (18) months to bring this situation to a head? I and millions of others need the answer to that question as well. I am also interested, as are 67,390,000 Frenchmen, what Trump was doing with classified documents about the President of France. (see this as item 1A on page 6 of 7 of the linked document). Finally, (not really), I am disconcerted by the attitudes taken by young and middle-aged members of the news media that give more "presumption of innocence" to the former President than you or I would receive. Clearly there is a flaw in our form of government that the President is at least tentatively seen as slightly above the law. Donald J. Trump is a crook, making Nixon look like a naughty, filthy-mouthed cub scout. Possession of the documents, which were not declassified by any stretch of Trump's or your imaginations, is prima facie evidence of guilt. At this point I think the Secret Service should be ordered to keep Trump firmly inside the boundaries of the United States. Sudden trips to Saudi Arabia or Moscow are out of the question. JB in Government
9 August 22
"Fresh"
The search at Mara Lago for government documents, some of them classified, some compartmentalized into extremely sensitive classes, took place about 18 long months after the documents were unlawfully taken from the White House by Donald J. Trump to his home in south Florida. We, none of us in the public, do not know anything more about the "gravity" of the situation that prompted DoJ and FBI to convince a federal judge that the documents would very likely not be forthcoming from the former president by any means reliant on "trust." What we can infer is that the "gravity" of the situation was/is intense, because of the political impact the search would inevitably create. What we do know are the broad outlines and the public policies and specific rules of procedure of the federal government, specifically DoJ/FBI, and those things, particularly the word and concept "fresh," give us a hint, not insight, but point us in the correct direction. "Fresh" means that the search was not, could not, have been approved simply on the basis of the January 2021 unlawful removal of documents to Mara Lago or the subsequent determination (sometime during 2021 and perhaps 2022) that that Mara Lago facility does not have secure places to hold the documents. What was necessary for the "dramatic" act of obtaining and executing a search warrant was some FRESH piece to the puzzle. We do not know what the "fresh" pieces were or are, but it was completely convincing at least from a national security reckoning. Classified documents, especially compartmentalized documents, contain sensitive information the subject and content of which can reveal Sources, Methods, Interest, and Depth (or shallowness) of Knowledge. In yesterday afternoon's brief posting, I asserted that, for a hypothetical instance, a sensitive medical record of the leader of a foreign country could be one of the sorts of things that might be classified top secrret and compartmentalized, and something which a Donald J. Trump might find interesting. We know from his Covid encounter he is emotional about his own medical facts. A medical record, to continue the hypothesis is not "fresh" after 18 months of languishing in a closet somewhere in Mara Lago. The use of that medical information would be "fresh." How would we know that Trump had used such information? Clearly, the sources and methods part of this question will remain undisclosed for as long as those who know can keep it that way. Another possibility is that a compartmentalized document has information bearing now on something that was not considered particularly relevant 18 months ago. Whatever it was that Archives, DoJ, and FBI found to be "freshly" important might never be revealed, but we DO KNOW there was something very "fresh" involved. The world is balanced precariously on the edge of really bad scenarios vis-a-vis Russia and, now, China at Taiwan, not to mention the fascists among us, now ranting about a new civil war. Given the total response of the Trumpists to the search of Mara Lago, the intensity of the response, and the threats of mayhem, revenge, and even war, Merrick Garland, FBI Director Wray, and we are left with what we expected from them — more or less something short of worst case ... so far. I believe they hope by their noise and rhetoric to deter Merrick Garland from further "provocations" like the Mara Lago search. Serious people are seriously worried about this, and there may be outbreaks of violence. I do not believe they are ready for Civil War, but I do believe they are always considering a Civil Insurgency, as I have noted several times before. JB see also Government
6 August 22Article 4, Section 4 ~850 words Primary elections in past few weeks have not been a reflection of peace on earth or goodwill. Trumpist fascist candidates are trying to outdo each other to see who can be the "baddest," most iconoclastic, liberalism-bashing candidates ever. We have had strange candidates over the past 240-some years, but not in such numbers and rarely singing from the same hymnal. It has given me pause several times this week, especially as left- and center-inclined talking heads here and there say that the Trumpist winners are supported by fans even more ready to tear down the curtains and reveal the Oz they so despise. (The irony of an Oz running as a Trumpist, does not dilute the fact that anyone (else) with a name like that is clearly here to replace someone named Smith or Jones.) Actually, although you will hear names like Biden and Pelosi and Schumer and Obama frequently, the real bogey in their imaginations is black or brown, gay or lesbian, probably unhappily pregnant, and presumably non-Christian-declaring and taking over neighborhoods and schools they once lived in or attended, not so successfully. It is a rage of incompetent frustration with the changes that leave them holding an empty bag, egg on their face, watching the big picture they struggled to comprehend as teenagers and twenties evaporate before their eyes. And this is not new, except Donald has them in his thrall, as the ultimate iconoclast and "tell it like they want it to be" rich uncle. It is all stoked by demagogues, speakers with the gift (das Gift) of riling up crowds prepared for some sort of battle to the death in their dreams. The far right intends to adjust the democracy to make sure only their people with vocal Christian credentials, if not actual Christian character, vote. They intend to dismantle democracy as we have known it since 1965 or so, and return to a regime where significant sectors of the society are no longer represented. They have declared that vote totals they do not like will not stand. That's what dismantle means. Let me be clear: they intend to pretend a "republican form of government," but it will fail the definition of "republican": "a representative democracy." When I was a high-schooler, George Lincoln Rockwell was parked across from the school cafeteria on Chesterfield Road in Arlington, VA, passing out neo-Nazi literature to the sons and daughters of government and military employees, the far right has been a constant voice for fascism in America. Actually fascists have been around for most of the 20th century, covering up whenever they needed to. There is a prevailing sense in the political middle and left that this will/might/should all go away, that the General Election of 2022 will boot these fascists into the dustbin of history. I am not sure this is the case. In the seven so-called swing states, one or more of them may actually elect fascists to the top offices in the state. Then what do we do? Well, we cannot do anything until these states actually explicitly put and end to the republican form of government there, their representative democracy. I can imagine a state lying low until the General Election in 2024 to up-end the legitimate vote tally to bring in a fascist senator, representative, and President and Vice President. Then what do we do? Article 4, Section 4 of the US Constitution provides the guarantee of a republican form of government, in every state, but it is not cut and dried, by any means. Please read the commentary on this. We have no definition of how or who is to act. We know that a declaration that, say, Pennsylvania is no longer has a republican form of government, would be litigated to death, the death of patience and sober thinking. Can the federal government put an entire state into political escrow? ... suspend its government ... remove duly elected or not-so-duly elected men and women there from office? Can you see Merrick Garland doing anything? Biden? Harris? Blinken? Austin? Pelosi, Schumer, McConnell, Kevin McCarthy? Clarence Thomas, Brett Cavanaugh? I have assumed that most of the states will hold their noses when another state goes fascist. When Huey Long was in Louisiana, everyone held their nose. The American tradition is to wait it out until someone dies or does something that the police and courts know how to deal with. The world is much different from the days of Rockwell, Tammany Hall, et al. The stalemate/"containment"/detente with Russia and China would not, could not, hold. The stakes are really high now and the rhetoric even now is not back-burner level. Putin would move decisively (he might think) and all hell would break loose. Certainly this country would never be the same. I am going say, it will never be the same anyway. We have to get everyone used to the idea of change as the normal thing, with big changes in health, technology, and cultural norms in the obvious immediate offing. We need to prepare intellectually and civicly for the very likely possibility of states abandoning the precepts of the Constitution. JB archived: Government
26 July 22
The Vice Presidency
Almost two weeks ago I wrote that all is not well in this Democratic administration led by Joseph Robinette Biden. On Bastile Day (the 14th) I wrote: A couple more things. Kamala Harris is obviously not, or ... [typically] has been, the "last person in the room with the President." He has done almost nothing to reassure us that he is preparing her well for the ever more likely time when she will have to take over. Rumors are out all over the place that she does not have his confidence. Those rumors are in the national press. My friend in NYC has been saying for over a year that the pair of them cannot possibly be on the ticket in 2024. My first guess is that Biden does not know how to work with Harris, and that is because he is too deep in the old school view of women. He passed the signing pen for his recent Executive Order on women's pregnancy care to her in such an abrupt way that I had to comment aloud. It looked petulant, not decisive. Today in The New York Times Jeffrey Frank delivered a guest essay that undergirds my expressed "intuition" about the situation in "Kamala Harris Is Stuck". Democrats, please read it. The fate of the nation actually depends on, as Merrick Garland put it recently, "We have to get this right" ... and equally on Biden and Harris getting their act right, too. This means that Biden has to "publicly understand" that he really is going to die someday. He is younger than I am, so I know about how hard it is to think of such a thing, but it is necessary, and in his place and time, essential. He's got some supposedly "mild" case of Omicron variant Covid now. He's got the best medical support team available to anyone on the planet, but sometimes Fate knocks very quietly as a first and last warning. You read in the middle of Frank's essay that Kamala has no executive experience. "She had been in the Senate less than four years when Mr. Biden selected her, and he did so knowing that she had never served in an executive role." Well, Jeffrey, for six years she was Attorney General in California, leading the 2nd largest Department of Justice in the nation. It was one of the key executive experience elements on her resume, especially given the battering the US DoJ took during the Trump mal-administration. That experience may well yet prove to be invaluable, especially if Merrick Garland cannot find the way to "get it right." For me this is all quite a bit less than who gets the nomination for the 2024 ticket. It is a matter of survival of the country should Biden not be the first president to celebrate his 80th (or 81st or 82nd) birthdays in office. Kamala is bright, healthy, 58 on October 20th this year. She is the first of her race, of her ethnicity, of her gender to be one heart-beat away from being the most powerful person on the planet. The emerging conclusion within the party, meanwhile, is that Joe Biden should not run in 2024. His time came; he has been tolerably good at it, given the chaos in the other branches of government; but, clearly the baton must pass to younger women and men. As a matter of national security he must be preparing Kamala to take over. She should know everything he knows about the domestic and the international situations. He should know what she thinks about those areas. It is possible they they may disagree. Biden cannot ignore her, and Harris may not undermine him. The trust and respect between them has to acknowledge there will always be the possibility of different points of view. If she succeeds to the Presidency suddenly, she needs to feel confident, and we that the country and world are in good and knowledgable hands! Biden needs to make a show of this to erase the uncertainty he has allowed to germinate. He can set a great new example for those who follow by gracefully observing the necessity for a smooth succession in perilous times. JB see: Government
8 July 22
"Dabblers in Democracy"
On Thursday the 7th, Lawrence O'Donnell on his MSNBC news analysis program, The Last Word, embarked on a very interesting statement about American democracy and the current assaults being mounted against it. I am pretty sure I agree with every syllable of what he said. One of the remarkable things about O'Donnell's way of presenting his analysis is that he does not actually mince words. When you watch this video you will hear him say directly that the Founders were not very high on democracy. I have written as much many times here. The word democracy does not appear in the Constitution or in the Bill of Rights or any of the Amendments to that Constitution. It is remarkable that he says what he says, because abroad in the land is a mythology, an orthodoxy, a sanctification that swoons over the Constitution as if it were the world's most perfect document. There are religious people that believe the Constitution was divinely inspired. I am neither. Lawrence is absolutely correct that the Electoral College is an abomination of democracy. He worked in the US Senate for Sen. Daniel Patrick Moynihan, as his Chief-of-Staff, yet he will be among the first to tell you that the Senate is deliberately anti-democratic and that originally so much so that the Founders did not want The People to elect Senators. They were elected by state legislatures, as if those white men would know the hearts and minds of The People. Congressman / Representative Jamie Raskin (D-Maryland) is one of the nicest men you would ever want to meet. Raskin is one of those guys who holds the Constitution up high and above its obvious flaws. I understand why, of course. It IS our Constitution, and it will be until we amend it or replace it, even though it is the source of the "fragility" of our republic. Yes, it is that defective! Still, they swear to protect it and defend it, and we understand why. It is all we have between us and armband fascism. I have alluded to the fact that I, too, am dabbling with democracy, writing a new constitution for that day when the red states overturn the votes of the people in favor of their own party ideas about who should be in Washington. It is quite a project, so when O'Donnell said that the British partiamentary system was abhorent to our Founders, he had said something very important, and I have been thinking about it non-stop since. I have said often that the reason for government is human nature, and what I mean, of course, is that if human nature were free of pathologies we would scarcely need government, well, a maybe a little. But it isn't free of veniality and corruption, and so writing a constitution is definitely a multi-faceted enterprise. The Founders were interested that all 13 states would be a part of the new nation. That was critical, so critical that they engineered a compact with slavery, they mistrusted their fellow man, did not even consider women at all, lied to and cheated the natives, and in many of the states slave owners took it upon themselves to spawn annual crops of new slaves of their own seed as their property. I cannot be in awe of the Founders, the Framers, I am hopeful, though, that we the people of this century can understand the human tragedy of our situation and learn how to read history and correct our institutions and the behaviors we have within them. JB archived at: Government
28 June 22
Hearing #6: Today was suddenly the day that Cassidy Hutchinson testified in person live on international television. She is only twenty-five years old, but was the principal assistant to the 2nd most powerful person in government in America, at the time it was Mark Meadows, formerly a Republican Representative to Congress from North Carolina, but on the fateful months and days leading up to January 6, 2021 and the roughly two weeks following to the end of the Donald J. Trump presidency, White House Chief of Staff. She told us quite a bit, stitching together unknown micro- and mini-events and known major events into a tapestry no longer plagued with conjecture and mere common sense. There is no question now that the plot to overturn the 2020 election was Trump's plot. He was not being swept along by hyper-enthusiastic supporters; he was the moving force. He had laid out his plans and was down to one last hurrah to turn the tide that was sweeping him out of the White House. He knew two days before January Sixth that the Vice President would not interfere with the count of electoral votes in the "Electoral College" assembled as the Joint Session of Congress. His last chance was to be violent and create a pretext for throwing the election into the House of Representatives on the basis of murderous chaos. Cassidy Hutchinson stationed where, as former Obama National Security Advisor Ben Rhodes said to Nicolle Wallace on Deadline White House today: the person in that position was sitting at the center of things and would know everything, way more than me. Indeed, Cassidy is under huge security threats from the violent extremists supporting Trump still. Trump is lashing out at her vehemently, as you would expect. It was not a matter-of-fact day of J6 Committee hearings, but for me it was not so much exciting as it was confirming, gluing the puzzle pieces together, especially the legal puzzle. My take-away is this: It is now more important to the nation to prosecute Trump and to risk losing in court prosecuting him, than to not prosecute, believing that would avoid riots and rancor. Before Cassidy testified there were threads of insanity pleas, of crucially missing testimony which now we know happened and can be pried out of the players, and threads of honest disbelief now clearly willful ignorance and conspiracy. We are not yet in court with Trump, but Merrick Garland cannot shy away from what will be a ground-breaking case against the former president. So much of the case is known, so I believe DoJ has a very, very, very good chance of winning the case and any appeals based on law. There could be more chaos, but I think Trump's goose is cooked, and he is not even a flight risk, unless his Secret Service detail has been corrupted. Trump's lunge at Bobby Engel's throat (clavicles), head of the President's protective detail, while being taken against his will back to the West Wing inside "the Beast" SUV, tells the Secret Service (and the nation) all they need to know about this person. There are several — fewer than a dozen — people whose testimony is needed. DoJ knows how to get at these details and will. They know how important it is to convict Trump for the traitor to his country that he manifestly is. JB archived at: Government
25 June 22
Dobbs
There may some who think my last essay "Hearing #5 ... Plus" was insensitive to the huge impact of the SCOTUS decision to overturn 50 years of precedent in Roe v. Wade. For that possibility I apologize. Dobbs v. Jackson Women's Health Organization (Dobbs) is clearly a very poorly constructed argument which will cause immediately told and untold grief and harm to thousands of women. It will also change the assurances of citizenship for all 167.5 million women in the country, changing their outlook on life and their understanding of their new position in society as lesser beings whose bodies can be commandeered in law by the state, in fact into an involunary servitude to carry a foetus to term against her will, her health, and even her life! Among the 162.4 million male persons in the country, some significant number will be personally involved in decisions to be made on whether or not to bring a new life into the world. It is a difficult decision, to which I can attest. The entire population has had its unenumerated right of privacy sullied, indeed violated. Of course it is all intolerable. And the point is we shall not tolerate it. I was very pleased with Hearing #5 of the J6 Select Committee, and the first thing through my mind when I learned that Dobbs had overturned Roe was that there are no real coincidences. Dobbs was meant to flatten the impact of the story of the traitorous former President Donald Trump. The fact is that Dobbs was to be announced in late June, and it is now late June. I railed against the J6 testimony being muffled by Dobbs. I also note for the record that Clarence Thomas's gun ruling has not gotten the attention it deserves, nor has his threat to undo contraception, same-sex marriage, and the privacy of sexual behaviors. Okay. It is vain, insane probably, to complain about all these issues when glowing in the gathering darkness of this young century is the pure fact that our system of government, created before anyone understood electricity, before political parties were organized and took over government, long before bullets were invented, yet in an age that also practiced abortion prior to "quickening" in the womb, the government no longer functions for The People. Listen! The US Constitution does NOT provide for SCOTUS to have the power of "judicial review." Judicial Review was debated in Philadelphia and in the states and there were proponents for it, under the sway of those finding "checks and balances" in the organization being drafted. But, please notice "judicial review" does not appear in the Constitution, nor does it appear in the Amendments. The concept was rejected, until Chief Justice John Marshall took it upon himself to "institute" it in the famous case of Marbury v. Madison. Marbury was not in the province of Marshall to rule upon, and so he did anyway to pull of this outrageous coup. There are much better ways to deal with mistakes and the evolution of opinion than arrogantly pulling the rug out from under the population. It is almost unimaginable how the idea has prospered, given that just five "justices" can overturn the work of Congress and the President in the creation of our laws. This is "check" on steroids, but so "unbalanced" as to be insulting. Five out of nine is the majority of SCOTUS while the House majority is half+one of 435 Representatives, and the Senate majority is half+one of 100 Senators, and the President of the United States, who will have to see to it that the laws are faithfully carried out signs or vetos legislation and it is not Law until the President says it is or the Congress reconsiders and passes it with a two-thirds majority in both houses. Amy Comey Barrett in her confirmation testimony in the Senate last year said that Marbury v. Madison is "settled law." It is not, but you can bet that as a self-fulfilling prophecy that jurists will say it is. In fact Marbury is one of the main problems of a constitutional government the main document of which does not contain the word "democracy" in its entire text as amended. It is high time that we stop the irrational veneration of a very flawed document, accept the humbling truth that we must limp along until we have devised a better one, but even given the flaws we must live with for a time the understanding that no person or group within our contemporary government or country or states has the right, the power, or the permission of The People to abridge our freedoms and liberty! JB archived at: Government
24 June 22
Hearing #5 ... Plus
First the very bad news: The Supreme Court actually reversed Roe today in the Mississippi case Dobbs v. Jackson, which will become known and notorious as "Dobbs." We have been around and around on this for weeks, months, years, eons, so I want to express my sorrow about it now, and double my Planned Parenthood monthly donation again, but not let this outrage push other news off the page. This event should galvanize all voters, but especially women to understand that the courts are being molded with every vote they make. It is time to wise up! The Fifth Hearing of the US House of Representatives Select Committee on the January 6th Attack on the Capitol, sometimes referred to as the J6 Committee, concentrated on the attempt by Donald J. Trump in the waning days of his presidency to use the US Department of Justice to assert from that Department that there was rampant election fraud, despite the fact that former AG Bill Barr had taken the precaution of inspecting elections around the country, particularly in the seven or so "swing" states, and had then declared that there had been NO massive fraud found, thus reenforcing the earlier statement by Chris Krebs, Head of the Department of Homeland Security's Cybersecurity & Infrastructure Security Agency (CISA), “The November 3rd election was the most secure in American history." The Trump DoJ-ploy would raise an issue in some states that could conceivably drive these states to rescind their first electoral votes, or other such chaos that would force the resolution of the presidential election into the House of Representatives, where a vote by states—not members—would elect Trump. This plot required placing someone else in the top spot at the Department of Justice, and an Assistant AG named Jeff Clark volunteered. The Hearing concentrated on the testimony of the former Acting Attorney General Jeffrey Rosen, the former Deputy AG, Richard Donoghue, and former Assistant AG for the Office of Legal Counsel, Steven A. Engel, which was conducted mostly by J6 Committee Member Represenative Kinzinger (R-Ill) and Lis Cheney (R-Wy) with some comments also from Committee Chair Benny Thompson (D-MS). Television has reproduced the entire event several times already, so I will simply comment that the Committee elicited a compelling narrative of the unsuccessful attempt by Trump to add this DoJ part into the total plot to overturn the election. What emerged as the subtext was that there were men in office who took their oaths of office seriously in those days, respecting the presidency, but refusing to allow Trump to go outside the law and practice of the pivotal Department of Justice. The "suptext," the supertext or over-riding message, for me was the how the principle of the Rule of Law works within the activities and belief systems of mere mortal men and women. When I was growing up my parents loved me more or less unreservedly—unconditionally. I felt that, although to be honest, I was also pretty sure that that caring-love was my due, as the two of them had engineered my existence. In my infancy I could do no wrong, but I could put myself in hazardous or precarious situations, so I was whisked out of most such situations sometimes with words accompanying the whisk, so by age four or so I was expected to remember these words as admonitions and strict guidelines to future behaviors. Well, of course, I forgot. I remember dad telling me to eat those lima beans. I heard about starving children somewhere, and I parked that somewhere in a recess of my brain to check out later, and then came the comeuppance part. No radio tonight, if those beans do not get in your mouth! (Yes this all happened before television.) (Yes, I spit them out later!) I can almost remember my thoughts on lime-bean evenings, or later when my little sister got in my way and I had removed her preemptorily and now faced dad as the culprit of a necessary personal crime. I got spanked, cried or not, and remember thinking how unfair it was that this huge man could do this to me, — but why, I wondered? Did he think that spanking or raising his voice (for lesser offenses) was his right, or did he think it was his duty, or, even, did he have a clear picture in mind of the hypothetical consequences of my behavior and his behavior? I have to admit that being slightly precocious with language, dad often spoke to me man-to-man, even though my "theory of the case at hand" was that I was still a kid. These thoughts superimposed themselves over and mostly around the testimony on screen yesterday, and I began to see the relationships between and among "awesome power," "loving parenthood," and "rules of behavior" as emblematic of "personal conscience," "oaths of office," and "the rule of law." I saw Rosen and Donoghue, particularly, not being these high ranking men, but as inhabiting these official offices, glued there by their oaths, but nevertheless human beings with conscience, ambitions and fears, too. In the aftermath, Neil Katyal, former Acting Solicitor General of the US, asked the piercing question: where were these two guys during the second impeachment? It was a very, very good question which resonated throughout the day's commentaries. It brings up the classic Thomas Paine idea of "the summer soldier and sunshine patriot," those men who choose to risk little of themselves, despite their greater, more important interests. It puts yesterday's testimony into a more realistic perspective. Not only power corrupts, but so does fear! JB N.B. — Oh, and btw, you can now carry concealed throughout the unlikely to be very much longer United States of America. Thank you Justice Clarence Thomas! archived at Government
22 June 22
Hearing #4:
Rep. Adam Schiff's presentation of the January 6th Select Committee's findings (so far) on Donald J. Trump's attempts to overturn the 2020 election in several of the so-called "swing states" was impeccable. The facts of the attempts were elucidated, but the important gist of the hearing was the manner of Trumpists applying "pressure" on officials and civil servants in their way. But even more important than the description of outright bullying and threats of harm was the deeply rooted courage and devotion to principles expressed in their oaths of office of the immediate victims of Trump's onslaught of fear-mongering bullying. Later in the day I had tea with dear friends out in the warm, dry sunshine, and discovered that these dual citizenship people were irreducibly optimistic about the situation and particularly buoyed up by the testimony of Speaker Rusty Bowers, whose religious underpinnings (LDS) were clearly the fiber of his belief system and his fidelity to his oath of office in the Arizona House of Representatives. He single-handedly blocked Trump's and Giuliani's attempts to corrupt the Arizona election. At times during his extended testimony, Speaker Bowers had to pause to gather himself. It was impressive to watch this man with whom I share almost nothing but my own oath of office to serve and protect the Constitution of the United States. My friends are more charitable, saying that there are millions like him whom we can trust to be solid when the awful moment engulfs them. Rusty Bowers believes the US Constitution is divinely inspired. Maybe he remembers that the barely agnostic Thomas Jefferson was not among those in Philadelphia, but rather our Ambassador to France at the time. There is no doubt in my mind that the Framers were quite probably imbued with their own religions and so they too may have believed there was divine inspiration to their acts. I do not believe the document rises or falls on that. At the conclusion of Mr. Bowers's testimony Rep. Schiff introduced a private thread of Mr. Bowers thoughts, notions that seem to come from another era, but are certainly germane to ours: ADAM SCHIFF: Mr. Bowers, I understand that as you flew from Phoenix to Washington yesterday, you reflected upon some passages from a personal journal that you were keeping in December 2020 while all of this was taking place. With your permission, I'm wondering if you would be willing to share one passage in particular with us. RUSTY BOWERS: Thank you very much. — It is painful to have friends who have been such a help to me turn on me with such rancor. I may in the eyes of men not hold correct opinions or act according to their vision or convictions, but I do not take this current situation in a light manner, a fearful manner, or a vengeful manner. I do not want to be a winner by cheating. I will not play with laws I swore allegiance to, with any contrived desire towards deflection of my deep foundational desire to follow God's will as I believe He led my conscience to embrace. How else will I ever approach Him in the wilderness of life? Knowing that I ask this guidance only to show myself a coward in defending the course He let me take — He led me to take. JB archived at: Government
21 June 22
To Prosecute or Not?
On Monday on MSNBC Joyce Vance, a legal analyst for the network, former US Attorney, and now Professor of Law at Alabama University, detailed the gnarly problem facing DoJ and particularly Attorney General Merrick Garland. There were other commentators present, including former Assistant Director of the FBI for Counter Intelligence, Frank Figliuzzi, and of course Nicolle Wallace. Joyce Vance's explanation was foggy because she did not want to point out everything that is involved. Basically she said that the "national interest" is the fulcrum of the decision process, but what constitutes "the national interest" is open to interpretation. Among the first things you learn is that the founding principles of the nation are at stake, namely, "the rule of law." Also on the table would be the distinct possibility of riots, mayhem, loss of life, and deeping of the chasm between the Trumpist Republicans and everyone else, a problem involving nearly everyone. Meanwhile the January Sixth Committee of the House of Representatives is doing a fantastic job of elucidating the events leading up to, on the day, and following January 6, 2021. Jack Goldsmith, a formal Asst. Attorney General under George W. Bush, writes his opinion of the situation in Tuesday's New York Times "Prosecute Trump? Put Yourself in Merrick Garland's Shoes." It is an opinion with a major red herring—whether Garland himself has the authority to go forward. Goldman also calls the January Sixth Committee's work "one-sided," which is really a deliberat falsehood, if the question is whether the Committee is being honest with the evidence they have assembled. From my point of view they are simply stating the facts and the facts piled on facts, and have come to a reasonable conclusion far short of the "anti-Christ" theory, namely that Trump is probably guilty of two or more federal felonies in his effort to overturn and reverse the election of 2020. The gnarly issue is, from my point of view, does DoJ feel confident that with all the evidence they have can they try and convict and sustain the verdict through appeals or not? If not, then do not try, instead, when we ask you this summer, resign. There must be someone with courage to take this monster down. What remains at stake then is the meaning of the "equal application of the law" and "the Rule of Law" itself. The obvious alternative is viable in Banana Republics, and it would result in the decisive fracture of the nation, as would a perfectly normal conviction. We cannot allow this decision to be based on threats of violence! Having lived in Texas for five straight years more or less recently, I am not worried about them (or other states) seceding from the Union in retaliation for convicting Trump. The Republicans in those places are literally out of their heads and ready to do just that. So be it! JB archived at: Government
16 June 22
Hearing Three: I missed the first 20 minutes of the Hearing today. The Hearing by some halftime accounts was a really hard to explain tour through the so-called "weeds," which in contemporary media language (also out on the street) means "too much information," too much detail. The first question you have to ask is "to much for whom?" Quickly, though, the MSNBC hosts and commentators dropped "weeds" for "law school," which was close to appropriate. Media have a tough role in serious situations like this one, which is interleaved with legalese, not only in understanding it and conveying it more clearly to their audience, but in deploying their personnel assets appropriately throughout the news cycle. Judge J(ohn) Michael Luttig (68 y.o.), formerly of the US Fourth Circuit Court of Appeals was probably the main reason for the media's problems with the first half. What popped into my head first was "fine old wine but a tight cork." Luttig was heralded for days before on MSNBC about his up-coming testimony, especially since he is a noted and appparently well-respected Conservative jurist. His law degree is from the University of Virginia (1981), although his baccalaureate is from Washington and Lee (1976), which is the 2nd oldest educational institution of the Commonwealth (after William and Mary). Judge Luttig is not to be easily dismissed as well past his prime. Prominent intellectual people rarely do obvious things without reason. Luttig's purpose before the hearing was to bear professional and authoritative judgment that no Vice President of the United States, in the role of President of the US Senate has any authority whatsoever to interfere with the counting of the Electoral Vote Certificates in the January 6th Joint Session of Congress, which is the formal and ceremonial conclusion of the presidential election conducted the previous November. He did that, but it was almost excruciatingly difficult for him to get it all out ... and he knew it looked excruciating ... and that was our clue that we were not in the weeds but very much in midst of the crop. Several Vice Presidents were mentioned as having second thoughts as they opened the envelopes containing the Electoral College ballots: John Adams, Thomas Jefferson, Richard Nixon, Al Gore, and Kamala Harris. None, it was said, tried to mess with the system, and in the case VP Harris, it was merely said that the tradition and law prohibits her from so doing on January 6th 2025 after the presidential election of 2024. What looked like weeds in Luttig's explanation of the 12th Amendment, was this seemingly innocent clause, which says: ... –the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted; .... The President of the Senate is the Vice President of the United States, of course, and in that clause he or she is directed to open the envelopes, and then the votes shall be counted (passive voice), which means that the President of the Senate does not necessarily have to do the actual counting (but could). The Amendment goes on after this clause with the announcements of the results, now public knowledge. Why then, in such a simple statement, did Judge Luttig take so long to say so. Later on in the hearing he spoke at a more "normal" pace, indicating that he could and that his excruciating performance was an exception, perhaps for a reason. So hear goes. You have to ask why the President of the Senate is told to open the envelopes when any person with a pair of scissors or letter-opener could do it? The answer is that the nation needs to know and believe that the envelopes had not been tampered with—and that their contents were as previously reported by messengers, press, and individuals long before January 6th. Notice that the Amendment does not say anything about that. The implication is that the august personage of the VP & President of the Senate assures us more or less automatically by his or her mere presence. It is a talismanic seal of approval. So, obviously, explaining talismanic authority to the television audience was not attempted. But then why, after Luttig established that Trump and Eastman & Co. were pushing a traitorous, illegal, and unconstitutional act on VP Pence, in fact Luttig saying ominously in addition that the threat was ongoing, why was VP Harris mentioned, just for fun? I doubt it. It is clear that if the Republicans carry out their intention to overturn the 2024 election, if the Republican candidate for President loses, then VP Kamala Harris will be restricted by the 12th Amendment to only open the freakin' envelopes, when she has credible knowledge that a well-advertised criminal act has taken place in certain states. Thank you Judge Luttig for deftly bringing this problem to the Select Committee's attention for them to recommend a correction for this issue. Now we know why he was speaking haltingly—this is a very complicated situation! Talismanic aura's are not going to suffice. Judge Luttig is carefully correct. January 6, 2021 was an attempted coup d'etat, but had no legal theory to substantiate it. And, there is a looming problem and at the moment no legal way to correct a situation where in reality the Electoral Ballot Certifications are false and corruptly sent to the President of the Senate. JB archived at: Government
13 June 22
Hearing Two: The 2nd January Sixth Committee Hearing was about what Donald J. Trump was told and should, therefore, have known and understood about the results of the November 3, 2020 presidential election. He lost and there was no appreciable or significant election fraud! Nearly everyone—all those in authority and in a position to know the facts—said so to him. The January Sixth Committee has clearly and firmly established this point. So the next issue is whether or not Trump was engaging in what the law calls "willful blindness" or "willful ignorance" which was brought up on MSNBC by Joyce Vance, formerly a US Attorney and now professor of law at the University of Alabama. Fundamental to the legal notion of "willful blindness/ignorance" is "pretense," that is, that the person consciously or sub-consciously chooses to not know or to ignore facts presented to them. They pretend blindness or ignorance of these facts. In the case of Donald Trump the issue is "resistance to believe authoritative reports of displeasing facts." As to "resistance" the public image of Trump has been even since his "Apprentice" show on NBC-TV that he was and is unlikely to accept losing gracefully. Some said Trump cannot and will not accept an election defeat. What does this mean? Are people saying that we must carve out a space in reality where Trump does not lose? Are they saying that Trump's reality already has that place carved out ... and that it has never failed him, that everyone around him has always gone along with him getting his way. Donald Trump was told over and over again that he lost and that there was no appreciable fraud. He ignored this again and again, telling his advisors again and again of additional "probable" cases of fraud—all of which were bullcrap, nonsensical, and absolutely false. The word "perseveration" popped into my head. I know an autistic person who perseverates for half an hour at a time or more, repeating something "endlessly," seemingly helpless to stop. We all have experienced musical "ear-worms" very occasionally, then they go away. For Trump the idea of fraudulent elections would not and has not gone away. So, either he was not and is not in his "right mind" and his "state of mind relative to his unlawful acts" is not therefore criminal, or, more likely and more reasonably, he has been carrying out a long criminal plan to cast doubt about his failure to win the 2020 election. In fact, on this question we should recall, as Katie Tur, on MSNBC reminded us, Trump began his 2020 theme of fraudulent election in April 2020, and indeed had done the same thing in the 2016 election that he ultimately won. In addition to that, Trump had harped on the idea that the news media were "fake," producing false news that no one should believe. And, he drummed on the idea that he was far ahead in the polling (but was not) and would win the 2020 election (and did not) unless there were election fraud. Perseveration is an involuntary ideational condition for those with autism, but it is a personal strategy of sociopathic narcissists and children attempting "to get their way" in the face of parental authority. For Trump allegations of election fraud are the way to poison, dismiss, and get around the democratic process that produces results he does not like. Frank Figliuzzi, former Assistant Director for Counter-Intelligence in the FBI commented on MSNBC today that he has heard what Trump was told, but now he wants to hear what Trump himself said as he was told that election fraud did not happen. This would close the circuit, so to speak, on Trump's state of mind. There is no doubt that Trump conducted his presidency quite often in what we can call "on the verge of a tantrum" to intimidate those who might disagree with him. Figliuzzi is absolutely correct that as a matter of Law, childish or sociopathic behavior is not a defense for miscreancy or criminality. But, we and the AG in DoJ have to be certain that Trump is sane. I believe he will accept a ruling of insanity to avoid prison. Former AG Bill Barr's testimony was very important today. I got the picture of Barr believing that Trump was sane but tantrum stubborn. The "crazy opinionated uncle" at your Thanksgiving dinner table is not actually insane, we believe, so Barr was probably within his rights to believe Trump to be amenable to argument in principle, if also manifestly disappointed about the election and likely not very willing to listen to authoritative evidence that he lost fair and square. And, of course, Trump's tantrum by January 6th 2021 was already over five years in the making. Trump is not delusional or crazy or legally insane. He is a disordered personality and a danger to our country. For those of you who always look for the trail of money in a criminal enterprise, Zoe Lofgren provided the evidence that Trump "perseverated" with the election fraud hoax to provide reasons for supporters to send him over $250 millions of dollars. As former RNC Chair, former Lt. Governor of Maryland, Michael Steele noted, Trump's abiding and animating interest in politics is to improve his financial condition. He is never above stiffing a gullible public! JB archived at Government
10 June 22
AG Garland v. Handcuffs
The first public session of the House Select Committee on the Events of January 6, 2021 was a block-buster, full of evidence-laden statements by Co-Chair Liz Cheney, (R-WY) and Chair Bennie Thompson, (D-MS). In the immediate aftermath on MSNBC, Nicolle Wallace asked Dan Goldman, former Counsel to the first impeachment trial of Donald J. Trump, what he thought. Goldman said: "We may be watching chilling video and wrenching testimony, but Donald Trump should be seeing handcuffs." Yet today on Deadline White House Nicolle Wallace, with reporter Betsy Woodruff Swan and Frank Figliuzzi, former Assistant Director of the FBI for Counter-Intelligence, on the discussion panel (remotely as were all but Nicolle herself), asked panelist Jeremy Bash, former Chief-of-Staff at the CIA and Chief-of-Staff at the Department of Defense, if he agreed with the "handcuffs comment." And, Mr. Bash said it is a close call and he himself is not not yet convinced the Department of Justice will choose to pursue former President Trump! Nicolle Wallace is a very professional interviewer and she asked Mr. Bash what is on the other side of the ledger (from a charge of conspiracy and earnest prosecution of Trump) and Dash did not answer, but merely said that DoJ might not be ready to go down that path. (!) Nicolle and I want to know in plain English words what that "path" is and why US Attorney General Merrick Garland might believe he has to option to not take it. Of course we, our country, has never prosecuted a former President for wrong-doing, or removed one from office, although we are fairly sure that wrong-doing has occurred. The burglary at the Democratic Headquarters suite in the Watergate Office Building is one of the most prominent such cases, but it was never prosecuted, nor indeed, was Nixon impeached for planning it and then covering up his complicity. In the Iran-Contra affair in the Reagan administration, Reagan's direct knowledge and participation was key. He knew of and did nothing to stop .the violation of the arms embargo against Iran, and of the intent to use the profits from the sale to help the Contra party in Nicaragua against the socialist Sandanistas. Underlings were convicted, but later pardoned by George H. W Bush. I believe that the issue for Merrick Garland taking the path toward prosecution of a former President is the precedent it would set. At issue is the concept of all citizens of the US being equal before the law, as against the possibility (very remote, given 240 years of never happening) that vicious party politics would in the future overtake the decision to prosecute and/or that small offenses would be exploited in the media with prosecution threatened to weaken the administration, but also, of course, the national security of the nation—which I imagine the point of view Mr. Bash understands quite clearly. All of this does not hang on me writing about it. Clearly enough, former President Trump and his lawyers already understand the "reticence to prosecute" syndrome and have used it to their advantage, as did Nixon up to a point, and Reagan as well. Fool me once, shame on you, fool me twice (or every so often) shame on me. We cannot allow Merrick Garland to make this decision by himself. The complex organic truth is that reticence to prosecute is more dangerous than the manageable media furor that will accompany prosecution of presidents and their friends. Really the issue is whether the next time the criminality might not fail its purposes. JB Archived at: Government
12 May 22
Checks and Balances
The constructive principles of the 1787 US Constitution are:
The over-riding decision was that the government was to be a new kind of government completely different and disassociated from absolute monarchy, constitutional monarchy, theocracy, depotisms of any kind, including personal or group dictatorships, but rather in the "Republican Form," as the framers went on to describe in the seven short Articles of the Constitution. Simple or participatory democracy was ruled out as an unmanageable matter of scale—in the absence of ubiquitous personal, digital, world-wide communications. The framers did not define Republican Form, as they considered that everyone knew its definition, to wit: a form of government in which all powers are considered to be permanently and inalienably vested in and arising from the consent of the people, who are citizens—a democracy— and expressed faithfully and honestly through representatives elected by the people, or if appointed or commissioned or hired, consented to by elected representatives, in short: a representative democracy is a republic and vice versa. The framers recognized three more or less distinct functions of government:
It is easily asserted that the functions of government have expanded or developed anew since the 18th century to include
The checks and balances incorporated in the 1787 constitution are reasonable ideas in what was by the standards of our present time very nearly a monocultural society from the time of Washington through the administration of John Quincy Adams. There were, of course, some bad actors in that epoch, but there was something of a consensus about personal behavior that expired when Andrew Jackson was elected and expired anew for different reasons with the next five and the mid-century slide into armed conflict over slavery. The first five presidents were complicit in the framing of the republic as a slave-holding nation, the rest were complicit in maintaining slavery, excusing it, but primarily concerned with the industrial revolution and westward expansion and fitting all of that into the original constitutional order. It is not surprising that the 1787 "checks and balances" are both "oppositional" concepts (like the executive veto and the impeachment powers over the executive and the judicial branches by the legislature) and "cooperative," "constructive" concepts (like the advice and consent powers of the Senate over the executive officers and the judicial principals). These two categories of checks are not symmetric and do not balance. The executive veto deals with output, but all the other checks are on personnel, as to their fitness and to their behaviors. Marshall's "judicial review" is an output check, but clearly deliberately not included in the actual Constitution. It is something of a miracle that the framers were able to agree on these ideas, but they seem to have been seduced by the creation of a noisy, "inchoate" democracy— made up of a very large percentage of barely literate and illiterate citizens—into the belief that disagreements and differing goals would not continue to generate stubborn factions which would harden into political parties, the power and discipline of which would nullify almost every kind of a gentleman's agreement. Politics is the most serious issue of our constitutional system. I am hopeful that when the US Constitution is re-written, by which I really mean REPLACED, that the interesting ideas the framers had about separation of powers to avoid dangerous concentrations of power, and emphasized by mechanisms that would check and balance the formal and the human relationships between and among separated powers are considered thoroughly. For instance, I have proposed, in the immediately preceding essay of 10 May 22 "It's Broken!", that the Senate no longer be the "upper house" of the legislature, but be completely redefined as concerned with the functioning and processes of the government, including Ethics, Checks, Balances, and Inspector General administration, artificial intelligence and data integrity, and online, on-going, proposed amendments to the constitution. JB (The Project, Government)
10 May 22
It's Broken!
You might say the United States of America was born broken and that the states were never really united. There are endless arguments about how slavery and other egregious norms of behavior, custom, and law, like indentured servitude, coverture, limited manhood suffrage, and other ideosyncracies of English Common Law distorted the background in front of which the country was conceived and its founding documents written. The people who designed the new nation were businessmen and landowners whose ideas about citizenry were formed in the pre-industrial epoch in which science (natural philosophy) was a novel and a leisure activity of the well to do. Class consciousness was very important to individuals, but was already blurring as shop-keepers took up permanent urban lives and commerce reduced the power of noblily, except those who joined in. Still in 1787 the population of states favored rural lives and attitudes. In other words, life in the colonies which came to be called states, was vastly different in most respects from what we have now in the 21st century. Monday evening on Lawrence O'Donnell's The Last Word news and analysis show, former Attorney General Eric Holder was a guest, partly because of his new book, coming out today, and because Lawrence and General Holder see eye to eye on the question of how broken the Constitution is and, therefore, the Government of the United States really is. It hinges, as Holder and O'Donnell and I always say, on voting, the single right that gives life itself to the democracy and guarantees all other rights, the very place where the framers bobbled because they knew universal suffrage would rapidly change the ethos they themselves were bringing to the birth of the nation. The bobble left the creation of the voting systems to the states, even the voting in national elections. MSNBC has not seen fit to provide us with the words General Holder clearly spoke about what is to be done. Clearly now, every aspect of the Constitution regarding voting and the systems that insure that it is fair and honest must be revisited. The framers understood certain rights of the people were glaringly obvious, but they decided in the sweaty Philadelphia summer — consumed and frazzled by the question of how to invent a representative democracy among commercial-chartered colonies converted to allegedly sovereign states, some of which were committed to and dependent on human slavery — that they could not possibly enunciate every right, so (some delegates fearing a strong central government, despite the failure of the Articles of Confederation) they eventually punted the whole question to the Bill of Rights, ending with the 9th and 10th Amendments, the first of these asserting, in just this one sentence: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Notice that those unenumerated rights are held by the people, so that when the 10th Amendment says: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." This sentence is about "powers" not "rights," but it in the very last clause distinguishes people from the states. The doctrine of commutative concepts tells us that, in the previous amendment, rights are not retained by States, but by the people. You can argue, of course, that the people speak through their states, but they also speak through the national government, albeit modulated by the Electoral College vis-a-vis the Presidency, and the State Legislatures (until the 17th Amendment) the Senate. The House of Representatives is the obvious forum for declaring rights of the people, understanding "the people" to be "all of the people of the nation," it being pure chaos for human/legal rights to be different among the states. You will notice that this principle looks quite different when many of the delegates saw the human slaves as property and some saw them as human beings, unfree citizens. In fact the framers did not have a coherent and universally accepted idea and definition of human beings. That's how long ago this all took place. The parts of government, the most obviously broken or no longer useful: — I believe the Senate, two per state and territory, should concern itself not with legislation, but with the processes of government, such as guiding and receiving periodic reports from Inspectors General and their equivalents throughout government. — The Senate should, as part of its oversight of process manage the introduction of AI and very large data for the Legislature and the Executive. — The Senate shall guide and supervise Ethics in Government, particularly with respect to the activities of Inspectors General. Everything Lawrence O'Donnell speaks of on this general subject and everything General Holder said Monday night will require Constitutional Amendments. Ultimately the document itself should be rewritten to express modern understandings of terminology and the fact that removal from office by the regular election process no longer satisfies the needs of the nation. The Senate should provide online drafts of the rewritten document for review by and for the people. JB (The Project, Government)
3 May 22
Roe and Casey
Justice Alito, at his comfirmation in the Senate, said that all cases brought before the Supreme Court should be decided by the Law—the Constitution and Statute Law and Case Law, i.e.. precedent (stare decisis literally "old decisions")— and, moreover, he said, public opinion should have no role in the Court's decisions. Alito is the author of the First Draft (of February 2022) Opinion on the Mississippi law which limits abortion to the first 15 weeks of gestation (a case known as Dobbs v. Jackson Women’s Health Organization), believed to be a pretext case to have the recently imbalanced Supreme Court overthrow Roe v. Wade (1973), and Casey (1992), which supported Roe and reaffirmed the concept of precedent. Alito is from all outward appearances and self-identification a male human being, who doubtlessly believes that abortion is tantamount to murder, based on the idea that after the "conception stage" during which the mass of cells established by the fertilization of the ovum by one spermatazoon slowly begins to form (or not) into an embryo ("the embryonic stage" defined for humans as the 5th through 10th week of pregnancy), during which cells that will form into the heart muscle begin to "beat." After much ado, most anti-abortionists believe that the "heart-beat" is conclusive evidence of human life, and that the embryo and later the fetus has a Constitutional right—but not in the Constitution—to life, which is in the province of government and law to defend. Human life as humans see it is precious and "sacred" for those whose world view incorporates deity as the first cause, the continuous cause, or a variety of other concepts that place deity beyond mere human logic. But at some point societies recognize that there must be a first moment when a human being begins to exist and becomes biologically viable, that is, however immature, it could live on its own, but not necessarily independent of parental care, as with all babies. Choosing the heartbeat as the symbolic moment when a human beng is potential is based on a fallacy of reasoning. Heart cells beat because of the bio-chemical structures of which they are composed, and heart muscle cells can and do beat on their own in a Petri dish. The sanctity of human life is questionable as a societal "norm" or principle. Right now there is at least one war going on in which the combantants are earnestly, and with the grace of their deities supporting them, killing other human beings on purpose. All societies understand at some level that death of humans by accidents, storms, wars, traffic, self-abuse, homicide and other causes is inevitable ... and only in cases where humans intended that outcome does Law come into play. One of the most difficult things to prove is mammalian intent, particularly human intent. Does human sexual intercourse signify an intent to procreate? Well, it could, but most of the time, I am told, there is no such intent to make a baby, and rather, that is the furthest thing from either mind. If you do not intend to make a baby is that the same as you intending to not make a baby, but rather to only enjoy the physiological and emotional outcomes of sexual intercourse. I think the difference is whether you had any intentions at all: not intent v. intend not. This is the precise logic of language, but Law cannot say of the man or of the woman which of these was present during that sexual intercourse ... or later when the spermatazoon finally found the ovum. The Law, being incompetent in this, has no business intruding on the privacy (another word not found in the Constitution) of presumptively ethical human women and men. The consequences of government and/or religions interfering with these private matters are dire indeed. Moreover, there is the stark and very dark suspicion that such interference is deliberately intended to reduce the civil liberties of female human beings to the advantage of males. This is unacceptable in every respect! The draft opinion was leaked to provoke public opinion—despite Justice Alito's horror of that—and to bring this matter to the only acceptable final conclusion that abortion is entirely a matter of personal health between a woman and her licensed medical care-giver. JB (Society, Government)
18 April 22
The Court
We have an aversion to judges. "Judge not, lest ye be judged." (Matthew 7:1-3 Bible, King James Version). It is an age-old warning to everyone when, with an excess of self-certainty as part of their human nature, they apply their opinion to our situation. The founding parents of the United States understood that there must a judiciary of some kind within the government, because there was in England and France and nearly everywhere, and there still is. The issue has been: how final is the opinion of a judge or court and should there be a final court beyond which no appeals may be made. I think most people believe "finality" is, while important, not the more important issue, rather it is how well can we set up a judicial system that consistently renders "good" opinion, fair ones based on widely accepted contemporary principles. I am going to assert that no judicial decision should be absolute for all time. Then, of course, the devil is in the details—but that's what we want: the right and the ability to adjust our thinking to be relevant to our own times, given that some ideas have longer lives than others. Right there we see the schism between conservatives and progressives. The April 7, 2022 issue of The New York Review of Books has an article by Linda Greenhouse "Should We Reform the Court?" The review article rambles around the several points of interest in that terrain, coming to the conclusion that, although no one is paying much attention to the Final Report of President Biden's "Presidential Commission on the Supreme Court of the United States," the ideas voiced in the Report, asserted to be "once fringe," are now "front and center." The Commission (Please note the four links on the right margin on the first page of this website.) consisted of thirty-four members, some few of whom you may already know, like Lawrence Tribe. They broke down into subcommittee working groups to review five subjects: 1) origins and history or the reform debate, 2) membership and size of the Court, 3) life tenure, 4) the Court's role in the constitutional system, and 5) the Supreme Court's procedures and practices. If you are interested in what the Commission voted unanimously to accept and deliver, you should read the Final Report. You are not required to bear in mind that very few people have been interested. I have my own suspicions about why. For me the main issues are a) the Court's constitutional roles and b) how best to assure that the membership is chosen to represent and carry out those roles. With my mind made up about the size of the court—I am wholeheartedly in favor of at least doubling the number of members—I have assumed that the work of the court now amounts to much more than nine members are able to carry out, producing equal and timely justice. Moreover, as important as this work is, I believe, with some of the Commission members that no more than an eighteen year term of office is appropriate, preferably twelve. Judges live longer than they did on average in 1787, moreover, we live in a world of rapid and detailed communications, quite unlike the situation in 1787. Delay is no longer intrinsically tolerable. Surprisingly, perhaps, I think that the decision in Marbury v. Madison was wrongfully decided. I realize that is pretty cheeky of me, but it is not just me, despite what the editors of History.com think. The Constitution itself describes the limited kinds of cases for which the Supreme Court has "original jurisdiction." The case of Marbury did not fall into the the original jurisdiction of the Supreme Court, but Chief Justic Marshall, (never before a judge of any court), took the case, and ruled, famously, that SCOTUS could declare legislation passed by the Legislative Branch and signed into law by the Executive to be unConstitutional! It is ridiculously overbearing on its face! Moreover, and to the point, Marshall did not have jurisdiction or the pulpit; Marbury should have been in a lesser court; but Marshall, and others, saw an opportunity to amend the Constitution quickly and decisively. The Constitution provides for a three branched government, each branch independent of the other, but provided with the power to check (reevaluate) and yet to balance (harmonize) the powers of each of the other two branches. Why then did the Constitution not include this sort of check by the Judicial Branch on the Legislative Branch and the Executive? The obvious answer was and is: they did not want to. You will not find such a check anywhere in Article III or anywhere else in the Constitution. Checks and balances are a naive mess in the Constitution, but I think you can see in the shadows real doubt about democracy almost everywhere in the document. In the 1803 of Marbury we had less than a generation's worth of experience with democratic government, but the one thing that the framers, including those who were never elected to office and those who wrote the Federalist Papers, feared most was the rabble, the working, barely literate or illiterate commons. American democracy may well be the oldest continuing government involving democracy, but that involvement has from the very beginning been constrained by and shrouded in two fears: the fear of kings and autocrats, and the fear of people who are not well-educated—well-enough-educated—to understand the complexities of life in a society about to emerge into and continue successfully in its (and the world's) "global mercantile-industrial age." The industrial revolution was underway in Britain during the late 1700's, supported in the main by profits from sugar plantations in the Caribbean, worked by slaves. Some historians think the American (political) Revolution was an outgrowth of this situation. The other major issue is that the US Constitution was created without taking into account that "factions" could and probably would become political parties, and that the most powerful of these were the states that took to slavery to power their development. As we know these parties would invest themselves into the very machinery of governmental power. Yet almost nothing in the Constitution beyond vague statements about "Good Behavior" guide the government's activities. We find out in spades in the past ten years that "behavioral norms" and traditions are what keeps it functioning, or contrarywise, breaking normative behavior standards destroys government. I do not see any way of reforming our government in a lasting way short of a new Constitutional Convention, but I realize that political parties are aghast at the prospect of significant change—unless they can build themselves into it. A smaller task, reforming the Supreme Court, may be possible, so long that it has N.B.—Article III, Section 1 of the Constitution says: "The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, ... [and receive compensation]." Associate Justice Clarence Thomas failed to recuse himself from considering a case involving his own wife earlier this year. Recusal is not some new concept that he can ignore because it not written down as a rule of behavior. It is obvious and ubiquitous and absolutely necessary. Thomas's behavior disqualifies him from holding office, and so he should resign. If he does not, he should be impeached. If impeachment cannot be carried out to its end, then his activities on the bench should be ignored, his remuneration terminated, and a replacement appointed, confirmed, and sworn in. JB (Government)
The Ides of March 22
The Pursuit Of Justice
I declared my hope for evidence that the US Department of Justice is at least investigating the role of former President Trump in the events of January 6th, 2021, and such other matters as the well-known attempt of the President to intimidate the State of Georgia Secretary of State to find more than 11,780 votes for him, thus to give him the Georgia state electors. I am satisfied with Garland's remarks, since Garland must demonstrate that DoJ is politically neutral to those on the political left and right that already know that Trump politicized it. He said the DoJ will pursue anyone at any level as long as it takes. Time, however, is a significant factor, given that November 2022 is a national election for Congress, a body riven by politics and reduce to a razor's edge in favor of the Democrats. Garland is on a tight-rope, clearly, but there are scenarios that could take place that give some confidence to the entire nation that swift justice is sure justice, even in this war and politics fraught year. (Government)
A Snowball's Chance
What do you think the chances are that Merrick Garland's Department of Justice is ignoring the failed coup d'etat that Donald J. Trump admitted to last weekend in a rally in some small town in Texas? Fifty-fifty, you say? Maybe 10%? Really, how could they keep so totally silent about something like a full-blown investigation into all the crimes we now know Trump and his enablers have done or tried to carry out? Somewhere along the line I learned the metaphor of the invisible man in a snow storm. The image is of snow piling up on the head and shoulders, the tops of ears, the wrinkles in clothing, the tops of shoes. Eventually, you obtain a pretty good idea of what is in that snow—a person. DoJ is in Washington, DC, at 950 Pennsylvania Avenue, NW. Main Justice is there, but of course there are hundreds of other places where FBI and district offices are located. It does not snow inside these places. It was December 14, 2021 when the US House of Representatives voted to hold former White House Chief of Staff Mark Meadows in contempt of Congress for failing to appear to testify under federal subpoena. Why is it taking so long for DoJ to bring an obvious indictment of Contempt of Congress, when it is known everywhere in the world that Meadows did not show up? So wait a second, maybe snow does drift inside Main Justice after all. What would you as Attorney General do if Congress sent you a case about "testimony truancy" in the midst of your investigation of a violent and deadly coup d'etat, which is still on-going in some respects? They could have brought the indictment, (as they did with the vicious buffoon Steve Bannon), but that would likely tip their hand in any of a thousand possible ways (which they believed would not happen with Bannon). So not indicting at this point is perhaps "snowy evidence" of something much bigger going on. Frankly, I find that to be very thin gruel, but I will hold out until March 1st, or if there is a solid rumor out there, until the Ides of March. I have already written about the mess in Justice inherited by Garland and Biden and Harris. Jeffrey Clark is the tip of that iceberg. Adam Schiff provided a weird little hint about Mr. Clark when he referred to corruption at the very highest levels of DoJ, then a bit later, Schiff said "it is important to point out that the Justice Department isn't waiting for us [The One-Six Committee] ...." Listen for yourself, in this video of Lawrence O'Donnell interviewing Rep. Schiff. My Ides of March deadline for Garland to announce—at least that DoJ is working on the big picture— is based on the fact that there will be only seven and a half months in which to arrest, try, and convict Trump and perhaps twenty others for Conspiracy to Defraud the Government, criminal insurrection, and attempted tampering with Georgia State election officials. There will an planetary uproar when Garland announces that Trump, Trump Jr., Ivanka, Meadows, Flynn, et al have been arrested and detained as flight risks. It will shake the world, even Putin, who (as I and the NYTimes began to suggest last time) is concocting vicious lies about the Ukrainians so to mount a pretext for invasion. Watch this space! JB (Government)
18/1/22Article IV, Section 4~750 words
"Section 4. The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence." The first clause is the so-called Guarantee Clause and as sweeping as this statement is, the exact meaning of the word Republican is a bit uncertain. The Framers probably agreed among themselves, but failed to say it out loud! Ask Google what "Republican" meant in 1783 and you vanish down one of the world's deepest rabbit holes. At that point in Western Civ, —the latter years of the 18th century—it was an Enlightenment term which rejected monarchy, aristocracy, dictatorship, but promoted "constitutionalism" (meaning written declarations of purpose and organization all subscribed to by the people involved). It includes both simple and representational democracy, Jefferson thought the former to be not "practicable beyond the extent of a New England township." So we accept that the principle of Republicanism is the notion of indirect—representative—democracy ... and all that assumes about norms of behavior of those committed to public service over their own private interests. It was in the years 1792-93, ten years after the Framing and Ratification of the Constitution, that Jefferson and Madison established the Democratic-Republican Party, which as we know became the Democratic Party. The GOP, Grand Old Party, was founded in 1854 in Ripon, Wisconsin, by Whig Party members who recognized that a new party was needed to oppose the spread of slavery into the mid-west and western states after the Kansas-Nebraska Act of 1854 nullified the Missouri Compromise, thus leaving it to local state legislatures to make the decision about slavery. Clearly, given the demogogery rampant on the frontier, these Whigs knew that slavery would prosper wherever popular sentiment could be harnessed by slavers. Before I make my main point it seems to me that the second clause, the Protection Clause, is self-evident in modern, contemporary English that the federal authority can be brought to bear against domestic violence. It is probably not an accident that this idea summarizes what has been guaranteed in the first clause. The US, i.e., the federal government, guarantees that every state shall be a representative democracy, an uncorrupted expression of the will of the people of each and every state. This means that even Texas with its mythical (?) right to revert to being a separate republic is guaranteed to be a uncorrupted representative democracy. It is upon these words that federal legislation now pending—the Freedom to Vote Act, and the John Lewis Voting Rights Advancement Act—are Constitutionally predicated. These bills, hopefully acts, soon, go into detail about the federal authority to guarantee that elections are free, fair, and uncorrupted by those who would interfere with the rights of all voters to have their votes counted and certified. Both bills have passed the House and neither has passed the Senate, thanks to the truculence of Kyrsten Sinema and Joe Manchin, both of whom believe that voting rights apply to all political parties and therefore should be voted FOR by at least some of all parties, in the face of the fact that the GOP is no longer a democratic party, but instead a Leninist organization committed to Lenin's idea of "democratic centralism," which means that any detail of party policy once agreed to by the central authority is binding on all members of that party. The GOP is now subscribing to Bolshevism, which at the time it was establish in revolutionary Russia was in fact a smaller party than the Menshiviks, but was more adept at lying and propaganda. But consider this: Even without the detailed laws, the federal government already has the Constitutional authority and responsibility to make good on the Constitutional Guarantee. It will be negligence if the Attorney General, the Vice President, or the President does nothing to make good that guarantee. The details of that action would be subject to such things as habeas corpus, Miranda, and other such. I suspect that when President Biden orders the National Guard to observe and guarantee free and fair elections in certain states, there will be violence, and suddenly we are reading the second clause again. Article IV,Section 4. is proof positive that the Constitution of the United State of America is not a suicide pact or any kind of invitation to self destruction. JB (Government)
1/14/22
General Complaints
In a world where nearly everything has been knocked askew to some extent by the Covid-19 pandemic, by the Trump presidency, lawlessness, and aftermath, by the 2008 Great American-Generated World-wide Recession, its causes and effects, the failure to prosecute the rich perps in banking and finance, and the concommitant failure to even acknowledge the huge insult to the economies of the poor and middle classes, and most of all—the living and looming catastrophic global climate change and a billion lies told to protect the financial interests of those causing it, ... there are a few smaller things I think need attention, fixing, amending, and perhaps goosing the perps! First on my list is President Joe Biden's stubborn (arrogant and stupid) refusal to add four new justices to the United States Supreme Court. He has the opportunity now, but may not have it in a few months. The Court has been packed already with radical conservatives whose aim is to disestablish the so-called administrative state. You know, the government that provides food stamps, pandemic behavior rules and advice, civil rights enforcement, and all manner of things that seem to step on the sore toes of self-righteous, personal-liberty-grasping, conservatives seeking a return to a state of being like 1927 or so. I will not vote for Biden again, if this does not happen. I may not have the chance, since it is widely whispered that he is way too old to be President. Kamala Harris is negligent in not pushing hard on Biden to do this! I am told that she does nothing, and is not considered by people out here in the trenches as a viable candidate for VP or P in the future. She needs some dynamic speaking lessons, too. Second, is the Vice President for Breaking News at MSNBC, (I think). The problem is that Rashida Jones, the relatively new (and hastily promoted) President of MSNBC, under the umbrella of NBC Universal, Comcast, etc. is not all that well respected in the industry, nor does she have the full confidence of the other MSNBC players, which includes Rachel Maddow, Lawrence O'Donnell, Nicolle Wallace, and up to very recently Brian Williams. On the other hand, she is the cowgirl who needs to corral the spirited and formerly uncoordinated actors and hosts in order to take on CNN and put a dent in Fox. The Jones regime now requires the entire "family" to acknowledge that one of MSNBC's strong points is presenting Breaking News across the entire panoply of shows. To do this VP Breaking News is more than just allowed, but actually commanded to put graphics on screen that seem to explain what is being said. THIS IS THE REAL AND MAJOR PROBLEM! These inserts at the bottom the screen, remain on screen long enough for any fourth grader to have read them ten or fifty times. What is not shown enough is the name and credential of who is speaking. Of course the host needs no introduction, and neither do POTUS or VPOTUS or The Speaker of the House. But guests do need to be identified, just as if they were being quoted in a high-school or college-level term paper. The essence of truthful news and analyse is having a very good idea of the value of sources. Talking heads are sources and MUST BE identified by name and position AT LEAST 50% of the time they are on screen. Third, Travis Stork, MD, whose Wikipedia page says he is an American television personality, author, emergency physician, and was an actor in The Bachelor. He got his MD at Virginia, where he should have learned that flogging herbs as home remedies for sleep disorders and replacement potions for medically (FDA) approved support products is essentially dishonest, particularly if he does not practice medicine in the areas he flogs. He should have become an obstetrician with a name like that, obviously. The brand he flogs buys too many commercials for back to back or back, hop, back broadcast. I would never buy their products, mainly because they are not rated by USP and because Travis is exactly what Wikipedia says he is—an actor. He owns a set of scrubs and wears a stethoscope jauntily. Fourth and last for today, is the notion in American broadcast and cable network television that the audience has one way of expressing its like/dislike of, respect/disrespect for, gratitude for/disapproval of news or even entertainment programs. These are not canned soup, bread, automobiles, or any other kind of thing we buy or do not buy. In fact, we are not buying programming; we are submitting ourselves to the advertisors who support the program. There should be a way, now that we have the internet, for people to rate programs with the proviso that their own reputation for rating is accumulated and immediately available on their personal profile. Rating the news as to their respect for the truth, their respect for the intelligence of their presumed audience, and their willingness to not deliberately disguise the full truth of a subject by mischaracterization of truths by condensation, elision, body and tonal language, or any other means. Rachel Maddow in her endlessly repetitive presentations tends to insert mention of complex factual situation in abbreviated form that seems deliberately to ignore their complexity and nuance, even facts she has herself reported. She does this because she repeats herself too much too often. JB (Government, The Media)
1/2/22
"What Kind of Utopias Can We Imagine The title, although it was Irina Dumitrescu's question, her comment about a novel based in medieval feminist history, it struck me as deliberately provocative. As we are no longer in the medieval period of western civilization history, the mind wanders around the dim grey understanding of that time, looking for an approaching apocalypse. Maybe it was Martin Luther's Ninety-five Theses (1517), or one of those endless wars between the flagship kingdoms of the rapidly growing array of interpretations of Christianity. Many undergraduate historians cannot help but recall Luther's excommunication as the result of the Diet of Worms in 1521. History has these memorable moments! My purpose, however, is to begin and continue a discussion of "what is to be done" in the face of the apocalypse screaming toward the United States from within the shredding fabric of its society. Already threats are echoing through the halls of government that if the wrong move is made there will be bloodshed. In fact, militias have been forming for decades to this purpose. Lately, the calls for secession are louder. Of course, Texans have been chatting about this since their admission and seem to love the mythology of their supposed right to withdraw from the Union, and they bring it up at the drop of a ten-gallon hat. Seething on the surface of national politics is the outright threat of overturning any election that does not meet the needs and ideals of the Trump version of the Republican Party. That is a sufficient apocalypse to my mind, sufficient to unleash murderous rampage across the land by and against those who no longer prize the concept of democracy, but instead favor a fascistic form or, if you will, a mob-rule format for "resolving" local, state, and national problems. Implicit in that vision is amity and perhaps concord with other mob-ruled siturations like Putin and the Seven Oligarchs or Xi and the Politburo Standing Committee. All of which is to say, governed by a mob boss under rules of behavior that are a reduction of human nature down to a puddle of its worst features. So, just to imagine a utopia in this climate is to mark oneself as naive and foolish, or perhaps, a fifth columnist lulling the mass into lassitude and passivity. I will leave your imagination to its own devices as to those questions. It should be clear, though, that our new utopia cannot be a return to an age of Currier & Ives Christmas card Potemkinism2. As we enter an apocalpyse the past is shown to be fatally, conclusively, and irretrievably flawed. We cannot establish the new with the broken pieces of the old. So very much has been wrong—deadly wrong— about the nation founded in major part on human slavery and the subsequent terrorism against those once enslaved. Nor, moreover, can we announce a new democracy that contains deliberately anti-democratic institutions with the power to end debate or to "interpret" the will of the people—the Senate and the Electoral College. Nor should we reimpose the fallacy of the market on the economy of our new nation. It was thought by most until very recently that trees in a forest compete for sunlight. The truth is they cooperate because each canopy's inborn genetic respect for and synergy in the presence of other canopies. Forests are social, and not only in the canopies, but in the ground where fungal mycilia cooperate and communicate root to root bringing nutrients where needed. Root metaphors, on the other hand, are those statements of observable facts that impart meaning to other systems of thought. We must discard the "red in tooth and claw" root metaphor of human society entirely. It is wrong; it provides wrong and dangerous, deadly, answers to real questions. As my newly constructed high school entered the 1960's the students, especially the first three classes, of which mine was third, decided that the "constitution" of the school no longer reflected the hopes and necessities of the students, or for that matter, the teachers mentoring us. The decision was arrived at not in a moment of crisis, but as the "radical" idea to emulate the Founders of our country deciding that the Articles of Confederation and Perpetual Union were based on false premises and metaphors. For me it was formative, and I have been thinking about a new constitutional convention off and on ever since. As I mentioned in another essay, Thomas Jefferson believed that the Constitution should be revisited and rewritten at least once every nineteen years to get the affirmation of the newer generation of citizens. So, as the apocalypse is already visible, it would be better, I think you will agree, to commence the rebuilding of the nation now when passions are at least contained in the remains of civility. To wait until the apocalypse is upon us is to acknowledge our tacit unwillingness to cooperate, but rather to take advantage of chaos. My sense is that the root metaphor then could not help but be toxic—again! Scoff. This word now appears in closed captions on TV. It means, "not buying that, whatever it was you said." You should scoff and get it out of your system. The hard fact is that the people of this time are now challenged to create a new nation, where the nearly 250 year old United States of America now stands in serious disarray and not really united, but in fact about to explode into prolonged chaos. Holding a constitutional convention again in Philadephia is out of the question. We must take advantage of the fact that location is where we who will contribute are, and we are all over the place. If I asked Mark Zuckerberg to hold the event beginning July 4, 2022, what do you think he would come up with? Well? It would be electronic chaos at first, maybe always. But, from among all the women and men who have constructed the best parts of our social media, surely they could agree to a system of moderated mass dialog in which chaos was ruled out. AI could be employed, especially since AI is and will be a significant part of our existence on this planet (and any others) indefinitely! More on this next time.
[1] Irina Dumitrescu,"Industrious Habits," (on Lauren Groff's Matrix) NYRB, 12/16/2021, p.40.
JB (Government)
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