On the Mar-A-Lago Raid … and Al Capone

[First, a qualification:  although I have heard legal analysts comment that the FBI’s recent search of former President Donald Trump’s Mar-A-Lago estate was not a “raid” because it was seemingly undertaken entirely according to lawful procedures, the word, “raid,” is nonetheless used at points in this note because it is significantly easer and shorter than the phrase, “a search conducted by the FBI pursuant to a warrant issued by a federal judge upon a finding of probable cause that evidence would be discovered leading to conviction of a crime.”  😉 ].

I suggested in an earlier post that in U.S. Attorney General Merrick Garland’s place, what might cause me to refrain from bringing criminal charges against Mr. Trump – despite my beliefs that no one is above the law, and that there is cogent evidence that Mr. Trump is guilty of seditious conspiracy – was the practical problem of empaneling 12 open-minded jurors in an environment in which at least a third of Americans are in Mr. Trump’s cult.  I would feel – and strongly suspect that Mr. Garland feels – that for the good of the country, one cannot afford to bring criminal charges against Mr. Trump, and lose.

That said, my reluctance was expressed when considering and in the context of crimes that inevitably have a subjective element – and thus, the potential for Mr. Trump’s plausible deniability – including not only seditious conspiracy but crimes such as the instances of obstruction of justice described by Special Counsel Robert Mueller in Volume II of his report.

In apparently determining to first pursue Mr. Trump under the Presidential Records Act (the “PRA”), Attorney General Merrick Garland and the Department of Justice (the “DOJ”) team are seemingly being pretty tactical, but pragmatic.  They have perhaps chosen to start with an arguably relatively innocuous statute – at least as compared to the legion of other, potentially more momentous, charges for which there appears to be compelling evidence against Mr. Trump – because proving a PRA offense could be the most objective, and thus, the easiest to establish.  (That said, how harmless the offense might be will obviously ultimately depend on what, if any, material Mr. Trump might be proven to have illegally kept; more on this below.)  It’s up or down, black or white.  Mr. Trump either had illegally retained documents under his control at the time of the raid, or he didn’t.  Clearly, Mr. Garland – and the federal judge authorizing the Mar-A-Lago search warrant, based upon the DOJ affidavit presented in support of the warrant application – had a strong belief that he did.  If such records were on the Mar-A-Lago estate, presumably the FBI now has them.  Since negotiations regarding these records have reportedly gone on for months between Mr. Trump and federal authorities, it will seemingly be difficult for the former president to claim that he didn’t know that he had them (if he indeed did).  The DOJ perhaps considers the PRA the simplest vehicle to establish a straightforward violation with the potential for securing a relatively quick conviction.

Even so – and despite all the chortling by liberal media outlets – the obtaining of a search warrant and the execution of the attendant search doesn’t constitute an indictment, much less a conviction, of Mr. Trump.  Even if he is ultimately indicted and convicted, a fairly quick internet search of legal authority sets forth a legal view that such conviction would not, despite the PRA’s purported prohibition upon a perpetrator’s holding of federal office, prevent Mr. Trump from seeking and assuming the presidency because Congress doesn’t have the power to add hurdles to a citizen’s right to become president that are not set forth in the Constitution.

The ramifications of this week’s raid may ultimately be determined by what was retrieved.  If something truly significant was recovered, and can be publicized, such will seemingly have an impact upon Mr. Trump’s political fortunes as well as his personal freedom.  (I note with interest reports that Mr. Trump’s legal and media defenders – who for the most part probably have no better idea than anyone else what might have been recovered – are suggesting that the FBI might have “planted” evidence on Mr. Trump, laying the groundwork to enable them to sow doubt about any serious transgression in the minds of Mr. Trump’s credulous followers.)  On the other hand, if what Mr. Trump had in his possession merely amounts to a technical but inconsequential violation – what basketball fans call a “ticky-tack foul” – such could have little effect on Mr. Trump’s political aspirations or perhaps even generate sympathy for him among the moderately-conservative voter segments whose support he needs to reclaim the presidency. 

As Mr. Trump was fond of saying during his presidency:  We’ll see what happens.  Maybe this week’s raid will amount to something; perhaps it will amount to nothing.  However, and as many are aware, Al Capone was never convicted of murder, extortion, or bootlegging; he was ultimately brought low by a conviction for income tax evasion.  Perhaps Mr. Trump will suffer a similar fate due to an infraction far afield from the many, seemingly more significant, betrayals of our republic for which there is persuasive evidence of his guilt.

A Political Ad Worth Posting

This was called to my attention yesterday. As of 2003, I didn’t think it possible that I would ever again cite or refer to Dick Cheney with complete approval, but here it is my honor to do so.

It Is We Who Are On Trial

Countless pundits have intoned that the hearings of the U.S. House Select Committee to Investigate the January 6th Attack on the United States Capitol (the “Committee”) have put former President Donald Trump “on trial,” at least in the court of public opinion.  While there is no question that the Committee has established that Mr. Trump had more knowing complicity – “aforethought” – in the attempt to overthrow our democracy than even I, who has made regular references to Fascism in relation to Mr. Trump’s activities, had appreciated before the hearings began, with no background in criminal law I cannot assess whether learned criminal counsel consider the evidence that the Committee has put forth sufficient to convict Mr. Trump of seditious conspiracy (even assuming that a jury of twelve unbiased citizens could be found).  However, I would venture this:  if nothing more, last night’s hearing – the last of the first series, with further hearings to be conducted in September – unquestionably “convicted” Mr. Trump of unspeakable dereliction of duty.

Although less than 50% of self-described Republicans are reportedly paying significant attention to the hearings, and I understand that alt-right outlets are now seeking to discredit the Committee’s efforts by asserting, in addition to other claims, that Mr. Trump and his cohort haven’t had the opportunity to cross-examine witnesses, I thought that one reminder by Committee Vice-Chairwoman U.S. WY Rep. Liz Cheney near the conclusion of the hearing was the most telling observation of the night:  that virtually all of the testimony presented against Mr. Trump has been provided by Republicans, and the notion that any counsel for Mr. Trump would be able to effectively shake the testimony of former Attorney General William Barr (she could have listed any number of other Committee witnesses in addition to Mr. Barr) is simply not credible.

(Not significant but the most fun moment of the evening was watching the clips of U.S. MO Sen. Josh Hawley — who both instituted the Congressional initiative to obstruct the Electoral College vote count that in turn led to the insurrection and was pictured stirring up the crowd on the morning of the uprising — running for his life through the halls of Congress once the rioters actually broke in.  Since the Committee presented some evidence last night that contained what it called “harsh language,” I feel that it is within my purview to coarsen this post to this extent:  Mr. Hawley is not only a traitor but a gutless pissant.)

The Committee’s work has reached the point that I no longer consider Mr. Trump really its main subject; it is we who are.  While only the Almighty can judge morality, the nation-state is a human construct [which one might argue actually creates boundaries and loyalties antithetical to His (please excuse the male pronoun for a Being without gender) teachings], and thus I feel free to pass judgement to this extent:  anyone who maintains fealty to Mr. Trump despite the evidence presented by the Committee, or – in my view, every bit as bad – is remaining loyal to Mr. Trump after willfully refusing or negligently failing to take note of the evidence presented by the Committee, is guilty, notwithstanding all of the pledge of allegiance reciting, flag waving, and national anthem singing, of being … Un-American.

2024:  Each Party’s Two-Word Problem

[Note:  this post is based on the perhaps questionable assumption that Trumplicans who have assumed discretionary control of the electoral mechanisms in some swing states don’t deny the 2024 Democratic presidential nominee fairly-won Electoral College votes.]

I would submit that each party has a two-word obstacle that it must finesse in order to win the White House in 2024.

The Republicans’ two-word problem is pretty obvious:  Donald Trump.  Given all of the opportunity we’ve had since 2015 to contemplate the former president’s psyche, I think it takes little insight to suggest that he is viscerally unable to relinquish the stage; he desperately fears being left behind, forgotten.  I may at some point have to concede that I was wrong, but I currently can’t believe that Mr. Trump won’t seek the Republican 2024 Presidential nomination.  If he wins the nomination, all of the animosities he stirs in those who oppose him, taken together with the political wounds he has seemingly suffered as a result of the hearings of the U.S. House Select Committee to Investigate the January 6th Attack on the United States Capitol (the “Committee”), plus all of the unease and weariness that would exist in conservative Independent and moderate Republican quarters at the prospect of having to again deal with him, make it seem to me that it will be difficult for him to defeat the right Democratic presidential candidate (more on that below) in enough swing states to reclaim the presidency.  On the other hand, if he loses the nomination, I would venture that Republicans are fantasizing if they think that Mr. Trump – who in defeat will almost certainly retain the diehard allegiance of at least one-third of the Republican base — will docilely accept his defeat and line up behind the nominee.  The former president will instead claim that every primary he lost was “rigged” or “stolen.”  He will loudly and continuously denounce the GOP nominee.  He will threaten to start his own party – and may follow through.  In short, he will stir up enough discontent and uncertainty that in swing areas, enough disgruntled Trumplicans may stay home to enable the right Democrat to win in the Electoral College – which is the only tally that matters.

[I deliberately pass over the debate as to whether Mr. Trump should be prosecuted for sedition.  While I personally consider Mr. Trump guilty of sedition based upon the evidence uncovered by the Committee (while recognizing, of course, that if obliged to sit on a jury judging Mr. Trump, I would have to steel my mind and soul to consider only the sufficiency of the evidence admitted in his criminal trial), I am against such prosecution not because of any worry that such will set a precedent for future political persecutions but because I consider it extremely doubtful that with at least a third of our citizens in Mr. Trump’s cult, any prosecutorial team will be able to persuade twelve jurors to find Mr. Trump guilty of sedition beyond a reasonable doubt.  The Biden Justice Department can’t, for the good of the country, afford to bring a case against Mr. Trump, and lose.]

The Democrats’ two-word problem is almost as obvious:  Kamala Harris.  While I consider President Joe Biden to have thus far done a good job overall – a discussion for a separate post – he is showing every bit of his approximately 80 years (even those that support him concede that he looks old).  Elections are about matchups; up against Mr. Trump, he might well win despite his advanced years — by simply running on a slogan, “Do you really want to go back to him?” – but against any other, inevitably more vital-appearing, Republican nominee, it’s difficult to conceive of him overcoming understandable reservations among Independents about his ability to serve out his term.  Accordingly, if he runs and retains Vice President Harris as his running mate, this will necessarily cause any open-minded voter to seriously consider whether she is qualified to be president.  My conclusion – not new to anyone who read a number of entries in these pages during the 2020 Democratic Presidential Nomination process, and regrettably unchanged by anything I’ve seen in Ms. Harris’ performance as Vice President – is, she’s not.  My impression of Ms. Harris seems, crucially, to be shared by a number of our progressive Madison, WI friends.  If they have misgivings about her ability to conduct the presidency, concerns about her among Independents and moderate Republicans – the electoral segments which will determine the outcome of the 2024 presidential election – make her a political liability that could sink Mr. Biden even against Mr. Trump, and an albatross that he cannot afford against any other Republican presidential nominee.

If the President is serious about running again, I hope that his closest aide will be sitting down with Ms. Harris immediately after the midterms, advising her that she will soon be announcing that for personal reasons and with great regret, she had advised Mr. Biden to nominate someone else to run with him in 2024. 

I would suggest that the 2024 political hazard Ms. Harris presents to Democrats is potentially exponentially magnified if Mr. Biden chooses not to seek a second term.  Unless the Vice President affirmatively and promptly declares that she will not seek the presidency, Mr. Biden’s withdrawal will immediately cause some in the media – in both liberal and conservative quarters, for different reasons — to anoint Ms. Harris as the frontrunner for the Democratic presidential nomination.  If she seeks the 2024 Democratic Presidential nomination, I have severe doubts that progressive Democrats – who have an outsized voice in party affairs — will be able to unemotionally and pragmatically assess her qualifications and electoral prospects.  If she wins the nomination, I — as a resident of Wisconsin, which has become the ultimate swing state — don’t think she will be able to carry this state against Mr. Trump, let alone any other likely Republican presidential nominee with less baggage.  I’m finding that even those of our progressive Madison, WI, friends who are unwilling to express outright doubts about her competence have little faith in her Wisconsin electoral prospects.  If she can’t win here, it’s difficult to see how she can win the presidency.  If she seeks the nomination but loses the nomination to another candidate, I fear that it will be after a bitter campaign in which Democrats supporting any other candidate who is not also a woman of color will be denounced by the Woke segments of the party as either misogynist (if the competing candidate is male) or racist (if the competing candidate is white) or both (if the competing candidate is a white male) – despite the fact that there are regular indications that rank-and-file Democrats who are women and/or of color pragmatically prioritize competence and electability over diversity.  In a dilemma corresponding to the internecine discord facing Republicans related to Mr. Trump’s candidacy, I have severe doubts that if Ms. Harris runs, Democrats will be able to escape their own diversity-focused Wokeness sufficiently to cohere to defeat determined and organized Republican organizations in swing states (subject to the caveat that they might be able to do so if the opponent is Mr. Trump).

Make no mistake:  running against the wrong Democrat, Mr. Trump – or another like-minded Republican intent on instituting an American Apartheid – could fairly (i.e., without manipulation or fraud) win an Electoral College majority (if not the popular vote) in 2024, and thus, the presidency; if such a Republican does win the White House, the Republicans will not give it back.  And so:  who at this extremely early stage do I consider to be the right candidate for the Democrats’ 2024 Presidential nomination?  U.S. MN Sen. Amy Klobuchar is the first that comes to mind.  From a politically pragmatic standpoint, I am hoping that Mr. Biden and Ms. Harris will step back to clear the way for Ms. Klobuchar or some other competent and electable moderate Democrat to give us an opportunity to preserve our democracy in 2025 and beyond.

On Cassidy Hutchinson’s Testimony

The June 28th testimony of Ms. Cassidy Hutchinson, a former aide to White House Chief of Staff Mark Meadows, before the U.S. House Select Committee to Investigate the January 6th Attack on the United States Capitol (the “Committee”), stands for itself.  Anyone who hasn’t either seen or heard about it, and the manner in which it implicates former President Donald Trump and Mr. Meadows in a coup to overthrow the United States government, has been living in a cave deep underground.  She made an excellent witness.  As I watched it, the same thought occurred to me as has been noted by various commentators:  it was, along with former White House Counsel John Dean’s testimony during the Watergate hearings, arguably the most compelling testimony ever rendered before Congress.  Perhaps the most dramatic if not the most significant part of the testimony was Ms. Hutchinson’s account of a White House aide, Tony Ornato, describing to her, in the presence of the head of Mr. Trump’s Secret Service detail, Bobby Engel, how Mr. Engel had told Mr. Ornato that after Mr. Engel informed the former president following his speech at the Ellipse that the Secret Service was not taking him to the Capitol,  Mr. Trump lunged for the wheel of his Presidential limousine in a rage and then struck at Mr. Engel when Mr. Engel attempted to restrain him.

And yet:  I am troubled by the report that Mr. Engel and the (as yet unidentified) member of the Secret Service agent driving the limousine are willing to testify that the events in the limousine did not occur.

Although I spent very little time in the courtroom in my career, it is among the most basic premises of trial work that when you are confronted with very damaging testimony, if you can discredit any part of the testimony, it casts doubt upon the witness’ entire account.    

It is a lawyer’s point to note that it is not inconsistent for Ms. Hutchinson to have testified truthfully about what Mr. Ornato told her in Mr. Engel’s presence while at the same time, the incident in the limousine did not in fact occur.  Even so, such a fine distinction will be lost in the controversy that will arise if Mr. Engel or the limousine driver testifies before the Committee (and at this point, the Committee will have no choice but to let these gentlemen testify live on television if the report regarding their prospective denials is accurate) that Mr. Trump neither reached for the wheel nor accosted Mr. Engel.  Mr. Trump’s defenders will use any such testimony by Mr. Engel and/or the limousine driver to discredit Ms. Hutchinson’s entire account.

The Committee has been so thorough and its presentations have been so compelling that it is frankly hard for me to believe that the Committee – which didn’t need the portion of Ms. Hutchinson’s testimony regarding the limousine incident to establish the most incriminating evidence against Mr. Trump and Mr. Meadows it has yet presented – would include it without corroboration of the incident by Mr. Engel or the limousine driver, or, at the very least, corroboration from Mr. Ornato or Mr. Engel of the exchange Mr. Hutchinson testified to.

I guess we’ll see.

On Roe’s Reversal

I predicted in January in these pages that the Supreme Court would overturn Roe v. Wade, and that if such a decision was handed down, within sixty days thereafter most or all states under Republican control would outlaw abortion within their jurisdictions.  I ventured that on a purely political handicapping basis, if such occurred, it would provoke such outrage among liberals and conservatives and sufficient unease among Independents and Republican moderates that Democrats would retain their majorities in Congress.

While the outrage and unease I predicted in January is certainly occurring, at this point I sadly have little hope — but would love to be proven wrong — that such will be sufficient to enable Democrats to overcome gerrymandered Republican Congressional districts across the country and maintain their majority in the U.S. House of Representatives.  That said, I remain optimistic that the strong negative reaction to the Roe reversal among progressives, liberals, and moderates will provide Democrats an excellent opportunity, if handled adroitly and if elections are administered fairly, to maintain control of the U.S. Senate and to prevail in close swing state races such as the Wisconsin Gubernatorial race.

Impressions of larger import than the political ramifications attending the Roe reversal also linger.

The first – the sense of diminishment that I have heard several women express at the decision — is not for me to address.

The second I consider less important than the last, despite its almost incalculable effect on our Constitutional system: the Supreme Court’s legitimacy and credibility is shredded in the public mind on issues of culture (which is all the public cares about).  Speaking as a septuagenarian, I don’t think that the Court will shed the stigma of partisanship it now carries during my lifetime – a particularly sad realization for someone who spent his career in the law.  The Republicans too blatantly made it their primary goal over the last decades to put pro-life Justices on the Supreme Court, despite public opinion polls’ consistent indication that the majority of Americans favor some level of abortion rights for women.  The conservative Justices have now fulfilled the task that they had in effect been assigned – another step in what has become a quest to establish an American Apartheid.  I find it difficult to believe that Roe would have been overturned but for both then-Senate Minority Leader Mitch McConnell’s refusal to conduct hearings on then-President Barack Obama’s 2016 nomination of then-U.S. Appellate Court Judge Merrick Garland and U.S. Associate Justice Ruth Bader Ginsburg’s truly untimely death four months before the end of President Donald Trump’s term.  [Protestations by U.S. Senators such as Susan Collins (ME) and Joe Manchin (WV) since the Roe reversal that they trusted the recent conservative appointees’ representations during their respective confirmation processes that they would honor the Roe precedent simply demonstrates that either these Senators are fools, or think you are.]  Hypothetically say that Democrats successfully either add additional Supreme Court seats and pack them, or impeach the current conservative Justices and replace them; the reformed Court’s ensuing progressive-friendly decisions wouldn’t expunge its stain of partisanship, but rather reinforce it. 

As significant as the degradation of the Supreme Court’s standing in the public mind is for our Constitutional system, I consider this last impression, which has dogged me since I heard of the Roe reversal, to be of even greater, perhaps existential, import.  I hope that it is wildly off the mark, and you may well reject it.  It is based on this premise:  that the right to abortion – as compared to immigration, crime, climate, taxation, even gun rights; you name it – is the most enduring and emotionally divisive issue of our time, and as such, will always incite the same inestimable level of ardor and righteousness on both sides of the issue.  There is no way to reconcile the adversaries’ differences.  Neither side will ever back down.  I would submit that the fervor it generates is of a kind and akin to the abolitionist/slavery debate over 150 years ago.  When one adds the coming convulsion attending the Roe reversal to the many other issues in which our polarized citizens are unable to agree upon the same truth and seem unwilling to seek or accept good faith compromise, we may have entered a period of prologue not unlike the 1850s.

Watch This

In a recent post, I indicated that I wasn’t going to refer to the hearings of the U.S. House Select Committee on the January 6 Attack unless I was driven to write by outrage at the revelation of a particularly-egregious traitorous act by former President Donald Trump or his cohort. 

Below there is a link to a recording of the Committee’s June 23 hearing.  To be candid, while watching it, I felt no outrage, because it was simply confirmation of what I was already confident – and was already confident before January 6 – that Mr. Trump was capable of; however, if you haven’t already done so, I most strongly encourage you to watch the hearing in its entirety.  I know you’re busy, but suspect that sometime this weekend, you have planned to spend a few hours watching a movie or a ballgame.  Your time is better spent watching this.  Snippets you have seen on newscasts offer the headlines but not the full essence.  Hopefully, you have a screen bigger available than your phone.  You may well find it shocking or unnerving, but you won’t be bored.

https://january6th.house.gov/news/watch-live

The January 6th Committee Hearings

One benefit of retirement is that it will enable me to watch most if not all of the upcoming hearings of United States House Select Committee on the January 6 Attack, the first of which will proceed this evening.  Anyone who has followed these pages for any length of time – and seen the analogies drawn between the activities of former President Donald Trump and his cohort and passages in Adolf Hitler’s Mein Kampf – knows the deep antipathy for and concern I have about what the former president and his co-conspirators have done, have attempted to do, and are continuing to do to our country.  That said – and subject to the caveat that outrage at the revelation of some particularly-egregious traitorous act may drive me to write – I plan to enter very little here about the evidence presented by the hearings, for reasons I expressed in a note in early January:

“The almost certain:  that the House … Committee … will [set] forth damning evidence showing that … former President Donald Trump and his traitorous cohort sought to overturn … a free and fair election and instigated the Capitol insurrection.  I believe that the political ramifications … will be … nil. … [T]hose citizens with – to paraphrase the Lord – eyes to see and ears to hear already know that Mr. Trump and his acolytes are guilty of sedition.  Those who willfully and steadfastly reject this fundamental and blatantly obvious truth will be unmoved by whatever the Committee brings forth.”

Noteworthy but not surprising is that many in the latter group won’t even see what the Committee brings forth, because Fox News – with its wide conservative audience – isn’t televising the hearings.  (I have seen one wag tweet that such failure is Fox claiming its Fifth Amendment right not to testify against itself.) 

In reviewing my earlier post, however, I do believe that the hearings might ultimately have some effect, to the benefit of Democrats and, ironically, “organization” Republicans such as Senate Minority Leader Mitch McConnell:  it may weaken Mr. Trump’s hold on sensible Republicans and conservative independents (who I think will watch some, if not all of the hearings), thereby widening what already seems be a developing schism between Trumplicans and those who wish to move on from him.  Any such schism will help Democrats in 2024, if not this year, and – for good or ill, and whether or not Democrats hold the White House in 2024 – facilitate the return of control of the Washington GOP to Mr. McConnell and party regulars.

A Palliative Is Worse Than Nothing

Pal’-li-a-tive.  (Of a medicine or medical care) relieving pain without dealing with the cause of the condition.

  • Oxford Languages

As all are aware, there were multiple incidents involving firearms across our nation this past weekend that met the Gun Violence Archive’s definition of a “mass shooting”:  four or more people shot (injured or killed) in a single incident, at the same general time and location, not including the shooter.  I was out of town, visiting with friends.  On several occasions, we visited public venues.  I don’t know how many of them glanced around, considered — and then, out of necessity, dismissed – the thought I had:  that if a shooter entered the premises while we were there, we had few avenues of escape.

It’s being reported that given the recent mass shootings in Buffalo and Uvalde, a bipartisan Senate Committee led by Democratic U.S. CT Sen. Chris Murphy and Republican U.S. TX Sen. John Cornyn is considering so-called “gun legislation.”  Sen. Murphy, an ardent advocate of gun control, has apparently indicated that any product of the bipartisan negotiation will NOT ban assault weaponry, expand background checks, or raise the age at which firearms can be purchased.  Republicans, reportedly, instead wish to emphasize school security and mental health measures.  One Wall Street Journal account has noted, “Many Democrats, worn down after repeated failures to advance new laws, have said they are willing to settle for even a small bipartisan deal.”

As all who care are aware, Sandy Hook Elementary School, the scene of the deadliest elementary school mass shooting – including 20 children between the ages 6 and 7 — is located in Mr. Murphy’s state of Connecticut.  He took his seat in the Senate in 2013, less than a month after the Sandy Hook massacre.  Throughout his time in the Senate, he has worked tirelessly – and tragically, fruitlessly — for effective American gun control measures.  No one can have anything but complete admiration for his efforts.

At the same time, even the most pressing issues with the most obvious solutions – a pandemic, or in this case, the unspeakable slaughter of innocents – now somehow become political.  I didn’t want to sully the recent posts relating to the Buffalo and Uvalde mass shootings with any reference to their political ramifications.  I would now submit that for Democrats, what the Republicans are apparently willing to enact – in the Journal’s words, “a small bipartisan deal” – is a sucker’s bet.  They seem likely to take it.  They shouldn’t.

As those that follow these pages are aware, I generally maintain an incrementalist philosophy toward legislation:  if you see that you don’t have the votes to get the whole loaf, take what you can get.  While I can’t dismiss the possibility that President Joe Biden acquiesced to a sweeping Democratic domestic legislative agenda in areas such as voting rights, immigration reform, and the “Build Back Better” initiative because such was necessary to maintain the support of his party’s avid progressive wing, if the so-called “Go Big” strategy was his choice – if he saw himself as either a Franklin Roosevelt or Lyndon Johnson – he may have squandered an opportunity during his first year in office to get small but popular measures passed, such as childcare relief and a path to legal status for Deferred Action for Childhood Arrivals (DACA) recipients.

Even so, in the area of gun control, I think that Democrats should refuse to settle for a measure that fails to address any of the currently unaddressed evident root causes of many of these massacres.  Such a measure will enable Republicans in swing areas to soften swing voters’ outrage at the GOP’s intransigence by allowing them to loudly proclaim that they “did something” while simultaneously maintaining the support of gun rights advocates.  Democrats should want the issue, in its rawest form, if all they can get is a palliative.  They should want certain voter segments, such as those suburban Republicans who in 2020, because they could no longer stomach former President Donald Trump, either voted for Mr. Biden, or didn’t vote at all, to remain acutely uncomfortable.  (Making a negotiation breakdown appear to be the Republicans’ doing should be simple; all it would take would be the introduction into the talks of a generally-popular provision, such as institution of universal background checks.)  If Democrats think that after a modest measure is passed, bringing more aggressive bills – to ban assault weapons, to impose universal background checks, etc., etc. — to the floors of the Houses of Congress and making Republicans vote against them will have any political value whatsoever, I fear that they’re kidding themselves.

A close friend recently called my attention to a Politico article (linked below) in which a number of professional politicians opine that gun control is not the type of campaign issue that will sway a determinative number of voters.  While this assessment is certainly true in deep- (perhaps better described as, “dead-”) red areas – and arguably gained credence when the Republican U.S. Congressman representing suburban Buffalo, Chris Jacobs, announced on June 3 that he would not seek re-election after facing backlash for indicating that he would support an assault weapons ban — I did note that the piece reports that a Global Strategy Group poll has found that 58% of registered suburban voters in swing states, including Georgia, Pennsylvania, and Wisconsin, support more restrictive gun laws.  If I was the Wisconsin Democratic U.S. Senate nominee running against Ron Johnson in a close election – and not expecting to garner any votes from ardent Republicans, as Mr. Jacobs needed to keep his seat – I’d rather have Mr. Johnson on the record as opposing all gun reform than enabling him to assuage the uneasiness of conservative independents and moderate Republican suburban women by asserting that he did indeed vote for a “gun law” — which, on a relative scale to what needs to be done, did precious little to protect our children, our grandchildren, or ourselves.

https://www.politico.com/news/2022/06/01/gun-control-debate-suburbs-elections-00036230?nname=playbook&nid=0000014f-1646-d88f-a1cf-5f46b7bd0000&nrid=00000171-35c5-dd63-a9fd-77d53c5e0000&nlid=630318

There is No “Why”:  a Second Postscript

There were a number of thoughtful comments to this post, some entered on these pages, some provided through other means.  They warrant a postscript, since I remain unaware – and at this point, think I always will be unaware 😉 – how many that read these notes see the comments besides me.

It’s best at the outset to correct a couple of misimpressions I apparently inadvertently left with this post.  One observer suggested that by limiting the note’s focus to an assault weapons ban, I had failed to adequately reference our need to continue and enhance the ongoing activities by various public and private mental health agencies to identify and treat those who may be prone to contemplate undertaking a mass shooting.  Such was not my intent.  I have no doubt that we would be suffering even greater levels of carnage but for our mental health professionals’ dedicated efforts, and absolutely support increasing funding for this work.  An experienced and gifted mental health professional, while agreeing that we need more regulatory constraint on access to assault weapons, expressed a concern that my broad-brush reference to “crazies” in the post’s concluding paragraph had the potential to perpetuate stigmas about the mentally ill, the vast majority of whom are nonviolent and are more likely to be the victims than perpetrators of violence.  Again, I had no intent to reinforce false stereotypes.  The twin shocks of the Buffalo and Uvalde shootings, combined with my fervent belief regarding our need to restrain the manufacture, sale and use of assault weapons, caused me to overlook clarifications that I should have added to my assertions.

In the post, I noted that it had been reported the Uvalde shooter had been “engaged by law enforcement” before entering the school.  We now know he wasn’t, and that law enforcement took an interminable amount of time to meaningfully respond.  While the incompetence and/or cowardice of the law enforcement at Uvalde adds to the excruciating agony of the parents and the outrage of the rest of us, I fear that focus on the Uvalde law enforcement performance creates a distraction to enable gun rights apologists to deflect attention from the fact that the primary cause of this tragedy was that an 18-year-old could legally buy two assault weapons and a bunch of ammunition without effective legal restraint.  I do have a lot of sympathy for the vast majority of our law enforcement officials across this nation who would have run in to save these children – and are now undoubtedly concerned that the general public considers the rank-and-file officer not only racially-biased but an incompetent coward.  I would venture – and am pretty sure that most officers would agree — that if a cop isn’t willing to brave physical danger in these types of emergencies, s/he should find another line of work.

Some noted the sad practical political reality that Congress will do nothing significant to restrict access to and use of assault weapons (a comment on this below), while others urged a more aggressive limit on the right to firearms than I had proposed.  One loyal follower – a mother, nonviolent and quite progressive by nature — gently berated me for stopping short of a call for a ban on all firearms other than used by military and law enforcement, with offenders to be “fined, jailed, and kicked in the nuts.”  Although her sentiments are unlikely to find their way into American law and one of the consequences she proposes probably violates the Eighth Amendment’s prohibition against the infliction of cruel and unusual punishment, I understand her visceral passion. 

At the same time, despite my earlier declaration that there is no “Why” to mass shootings, I have concluded that there is, indeed, a “Why” – not to any particular incident, but to why assault weapons have been allowed to proliferate within our nation although it is glaringly obvious that legally limiting our citizens’ access to such weapons would reduce the number and severity of such incidents.  In a sense, I’ve known for decades. 

Over 30 years ago, I attended a professional conference at a very posh Washington, D.C. hotel.  One morning, I called for room service, and soon my breakfast was delivered by an elderly, white-haired African American gentleman, twice my age, wearing formal tails with white gloves.  I felt very uncomfortable having him wait on me, and attempted to take the tray; he would have none of it, carried it into the room, pulled out a sideboard that I hadn’t even seen, motioned for me to sit, arranged the tray in front of me, put the napkin on my lap.  I had never been waited on like that, and was a bit unnerved by it.  Being a political junkie and sitting in a D.C. hotel room, it occurred to me soon after he departed why so many of our representatives strive so hard to hang onto their jobs.  While Messrs. Ted Kennedy and Herb Kohl (then in the Senate), rich men, would receive such service for the rest of their lives, a member of Congress of average means served as I had just been was likely to transition from initial discomfort, to liking it, to expecting it, to, finally, fearing being deprived of it – terrified of no longer being Cinderella, of having his/her carriage turn into a pumpkin … to having to return to living just like the rest of us.

Lately, I’ve been rereading essays in The Federalist.  As Alexander Hamilton, James Madison, and John Jay, taking turns as “Publius,” sought to persuade Americans to support ratification of the new Constitution, their essays turn time and again to the concept of checks and balances.  “Ambition must be made to counteract ambition,” Mr. Madison observed in “Federalist No. 51.”  Put aside for a moment current perspectives of privilege and diversity; it is clear from reading The Federalist that all three authors implicitly assumed that anyone elected to Congress would already be prominent; he wouldn’t seek office primarily to become prominent.  Powerful men don’t countenance having their prerogatives trampled.  Mr. Jay stated it most directly in “Federalist No. 3”:  “When once an efficient national government is established, the best men in the country will not only consent to serve, but also will generally be appointed to manage it … [a] general and extensive reputation for talents and other qualifications will be necessary to recommend men to offices under the national government ….”

In the aftermath of Uvalde, a PBS NewsHour correspondent reported that he had asked Republican U.S. ND Sen. Kevin Cramer about the prospects of the Senate enacting gun control legislation, and Sen. Cramer, while acknowledging gun control advocates’ concerns, intimated that supporting such legislation would have a significant adverse impact on his career.  Republican U.S. LA Sen. Bill Cassidy, when asked about assault weapons regulation, responded, “If you talk to the people that own [an AR-15], killing feral pigs in the middle of Louisiana, they wonder why you would take it away from them.  [They say,] ‘I’m law-abiding, I’ve never done anything, I use it to kill feral pigs.  The action of a criminal deprives me of my right.’”

One could infer from the report of Mr. Cramer’s comments that he will not support significant gun control legislation due to potential political repercussions, although he perhaps well sees a need for it.  Mr. Cassidy is a physician.  He clearly possesses discernment — it should fairly be noted, he was one of a few Republican Senators with the courage to vote to convict former President Donald Trump in his last Senate impeachment trial – and he can’t help, as one who presumably subscribes to the Hippocratic Oath, but to privately understand that citing his constituents’ need for assault weapons to shoot feral pigs is an absurd ground upon which to rationalize the failure to limit Americans’ access to war weapons that have destroyed an unconscionable number of innocent human lives in a matter of seconds.     

While Republican legislators should be removed who sincerely hold that largely unfettered gun rights for Americans supersede the need to protect the public from unprovoked mass gun attacks, I feel no anger toward them; they simply lack the capacity to think critically.  What I find despicable are the Republican legislators whom I truly believe make up their majority – avowed “conservatives” — who recognize that meaningful assault weapon regulation would save lives, and yet fail to act out of political self-preservation.  We rightly criticize any police officers ultimately proven to have failed to act to protect children because they feared for their lives – since they understood when donning the badge that such risks were part of the job – but we seem too ready to accept at face value the notion that legislators who know better – successors to men who pledged their lives, their fortunes, and their sacred honor to found a nation — are somehow justified in failing to limit ongoing mortal danger to Americans because they want to protect their hallowed positions

As I’ve previously noted in these pages, Eighteenth Century Anglo-Irish Statesman Edmund Burke, ironically considered one of the founding fathers of modern conservative thought, once declared to his Parliament constituents: 

“[A representative’s] unbiased opinion, his mature judgment, his enlightened conscience, he ought not to sacrifice to you, to any man, or to any set of men living.  Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion.”

So on this issue, as with others, there is a “Why,” the root rot of the troubles we face:  we are subject to the Tyranny of Cowardice.