Category: U.S. Domestic Policy

August Odds and Ends

One truly regrettable consequence of the multitude of indictments that have recently been visited on former President Donald Trump is the distinct possibility that Trump news may drown out rational policy discussions and all but the starkest other news until at least Inauguration Day, 2025.  Despite my deepest (and by now glaringly obvious) antipathy for the autocratic impulses Mr. Trump and his cohort have both exploited and unleashed in our national psyche, I’m going to try hard to not only write about our coming political maelstrom during the next 17 months – there’s only so much to be said — although there is a part of me that feels that discussing other issues during this coming period is going to be akin to addressing the quality of the paint on World War II Allied battleships as they traveled through seas infested by Nazi submarines.

First:  on one hand, I am surprised that the public perception of President Joe Biden’s handling of the economy is so dismal, and on the other, I’m not.  Granting that at the macro level, our unemployment level is at or near historic lows and that today the S&P 500 Index is approximately 18% higher than it ever was when Mr. Trump was president, in our past it has often been the case – even absent invectives such as those currently being trumpeted by Mr. Trump’s propagandists – that our citizens have taken economic positives in stride, and focused on economic negatives.  Thus, what our people see is elevated (relative to the last 15 years) interest rates, which impact home and car sales and small business lending, notable inflation in food cost, and – worst of all – high gas prices.  Even in democratically steady times, it is never a good thing for a President of the United States if gas prices are high.  While Saudi Arabia and Russia, who have a dominant roles in the world’s oil market, will clearly do what they can to inflate oil prices to assist Mr. Trump’s campaign while filling their own coffers, China’s exports are reportedly significantly sliding as western companies redo their supply chains, which will seemingly cut its oil demand and in turn presumably weigh on global oil prices.  A lot of variables; time will tell.

Next:  Until recently, the dangers of Climate Change have seemed existential but somehow remote in the upper U.S. Midwest – not unlike the Russian invasion of Ukraine, where the stakes are intellectually clear but we’ve been far from the brunt of the battle.  Although the polar vortex made our last winter colder than normal, winter is always cold here; and we could arguably manage a degree or two of additional summer warmth more readily than our south or much of the rest of the world.  Furthermore, our proximity to the Great Lakes provides us access to drinking water not as readily available in other parts of our nation and much of the rest of the world.  Even so, the United States Department of Agriculture is now offering technical and financial assistance to help Wisconsin farmers respond to extreme drought conditions that are reportedly the worst to hit the state in over a decade.  During parts of June and July, the smoke from Canadian wildfires created “Very Unhealthy” Air Quality Index levels hundreds of miles from Canada and caused southern Wisconsin residents to seek refuge in their homes (for those fortunate enough to have them).  In July, we visited the Apostle Islands in northern Wisconsin; although there was little cloud cover during our visit, we nonetheless approached some islands through a smoke cover reminiscent of the mist pierced by the protagonists in King Kong movies as they first neared Kong’s island. (In an entirely geographically separate part of our nation:  If I’d ever focused on it, I would probably have surmised that parts of Hawaii were at risk for significant future losses caused by rising sea levels, but would never have guessed that such a tropical environment would be subject to wildfires.) We are constantly warned that we are approaching a “tipping point” regarding climate change; given the increasing breadth, frequency and intensity of the climate-related damage being incurred worldwide, it is difficult not to conclude that we haven’t already reached it.  While it may be true, as some credible authorities assert, that renewable technologies are not yet sufficient to enable some parts of our world to survive without carbon- or nuclear-based energy sources, we obviously haven’t moved fast or aggressively enough to reduce our dependence on carbon where we can.  Although I am optimistic that in the future we will develop technologies to mitigate the effects of the toxic gasses we release into the atmosphere, there is clearly going to be no quick fix to repair the damage that our changing climate has already wreaked upon our globe.

Finally, on a happily less vital note:  I was more than a little surprised that so many sports pundits professed shock at the perceived underperformance of the U.S Women’s team in the Soccer World Cup.  I don’t watch or know anything about soccer, but I will venture this:  with the possible exception of U.S. college football factories, if a championship team in any sport has a 60% turnover in its personnel – the U.S. Women fielded 14 of 23 players who hadn’t been on the last World Cup championship team — and has a new coach, its chances of repeating have to be in doubt.  The team’s performance showed – obviously speaking in relative terms – that it wasn’t that good.  So be it.  It’s only sports; nobody died.  I was glad to see that if the U.S. Women were going to be defeated, that it was Megan Rapinoe – a stalwart and face of the team in past championships – who was one of those that missed a crucial penalty kick; although she’s taking undue heat in some quarters due to her past outspoken progressive stands, Ms. Rapinoe’s stature in U.S. soccer lore is secure, and it will be easier for her by nature and record of achievement to shoulder the criticism than one of the newcomers.  The pay equity with the U.S. Men’s team that the U.S. Women achieved through their undoubted excellence over the last quarter century is those championship teams’ and players’ true legacy.

On we march.

Those Were the Days

This past weekend, we were poking through one of the countless antique establishments in central Wisconsin and I came across an edition of the Milwaukee Sentinel dated July 4, 1976.

I can place myself exactly on that day – not only because of the Bicentennial, but because it was a little more than a month before we were married.  I was on the east coast visiting family that Holiday weekend, but am confident that the Sentinel edition I found lying on the antique store shelf is identical to the copy delivered to my in-laws’ stoop on the morning of July 4, 1976.

I was first struck by the size and weight of the paper – a paper, mind you, that was only one of two major daily papers then published in Milwaukee (the other being the Milwaukee Journal; the papers thereafter merged into the Milwaukee Journal-Sentinel) — at a time when America had a limited number of national nightly news telecasts (CBS, NBC, ABC, PBS – no Fox) and regional network affiliates broadcasting local news.

Amid the Sentinel’s extensive reporting about Bicentennial celebrations and a section on the Founding Fathers’ declaration of our independence, I saw little reference to politics.  By that holiday, former GA Gov. Jimmy Carter had clinched but not yet formally won the Democratic Party’s 1976 presidential nomination, while President Gerald Ford was locked in a tight contest in which he ultimately defeated former CA Gov. Ronald Reagan for the Republicans’ presidential nomination.

I well recall that there were sharp policy differences among the candidates, but there was no indication that any of them had any reason to worry that our republic would come to an end if one of their political opponents prevailed.

Later that year, Mr. Carter narrowly defeated Mr. Ford.  When Mr. Ford lost, he left.  Four years later, Mr. Reagan defeated Mr. Carter.  When Mr. Carter lost, he left.

Although many parts of American life are better today, obviously many need attention.  We cannot go back; we can only hope to make tomorrow better.  Even so, as I looked over the old edition of the Sentinel, the theme song of perhaps the most renowned television comedy series of all time – which on that long-ago July day had just concluded its fifth consecutive season ranked at No. 1 in the Nielson ratings — actually came into my head: 

Those Were the Days.

On The Trump Insurrection Indictment

In a brief statement after the Washington, D.C. grand jury issued its indictment against former President Donald Trump for Conspiracy to Defraud the United States, Conspiracy to Obstruct an Official Proceeding, Obstruction of and Attempt to Obstruct an Official Proceeding, and Conspiracy against Rights, Special Counsel Jack Smith urged everyone to read the indictment.  Rather than listen to the inevitable hours of ensuing commentary, I followed his recommendation.  I haven’t added a link here because you have a plethora of means to reach and read it.  If you haven’t already done so, please do; 45 pages of double-spaced letter-size pages isn’t that daunting and the story it relates requires no legal training to decipher.

In one respect, there is little new in it.  Any citizen with the capacity for critical thought who kept abreast of the debunking of Mr. Trump’s and his cohort’s claims of election fraud in the key battleground states in late 2020 is well aware that their claims of outcome-determinative fraud were baseless.  There are nonetheless some striking allegations:  that Mr. Trump absolutely knew his claims were false – he was repeatedly told by competent advisors and people with understanding of the facts that there was no outcome-determinative fraud in any of the states at issue – and he continued to repeat his lies anyway, ultimately culminating in the Capitol riot; of the fairly intricate planning that went into the fake elector scheme intended to replace the legally-designated Biden electors in the contested states with Trump electors – who obviously had no legal standing to cast votes in the Electoral College and were in some cases duped into participating – to provide Mr. Trump the electoral victory (thereby violating the voting rights of the contested states’ Biden voters); and of the extent to which Mr. Trump attempted to pressure Vice President Mike Pence to reject the contested states’ Biden elector slates and return their slates back to their respective state legislatures despite being repeatedly advised – by Mr. Pence and others – that Mr. Pence had no such legal authority.  (I am mystified as to why Mr. Pence continued to meet with Mr. Trump and take his calls after the election outcome was clear.  Mr. Pence, as the duly-elected Vice President, was the one member of the Trump Administration who could ignore Mr. Trump, and whom Mr. Trump couldn’t remove.)

If Mr. Smith and his team prove what they have alleged, the Stop the Steal Movement was a knowing, malign, and illiberal conspiracy to steal the presidency and overturn our democracy.

I recently suggested that it could be problematic to get Mr. Trump’s insurrection trial scheduled before the election.  I have since heard reported that New York authorities may be willing to give way on Mr. Trump’s March trial date for criminally violating New York business law, and I’d assume that Mr. Smith’s team will be amenable further postponements of Mr. Trump’s Florida trial for misappropriation and mishandling of classified documents if that provides a window for the insurrection trial in D.C. (I suspect that Mr. Trump’s team will seek no further delay in the documents case.  😉 )  

The indictment is also a reminder of the number of loyal Americans who stood in the breach in 2020 who are now gone.  For his own purposes, the former president has driven the distrust of our institutions even deeper into the public consciousness since he left office.  Our way of life is at a perilous juncture.  May Mr. Smith and his team enjoy Godspeed.

Mid-Summer Impressions

Summertime celebrations, activities, and responsibilities have afforded little time during the last month to keep abreast of current events, and brought about what is by far the longest interval between entries in these pages since they began in 2017.  I am confident that everybody has survived just fine 😉 .  A few impressions as we round the corner into the last month of real summer, at least in the upper Midwest:

As all who care are aware, in mid-July, former President Donald Trump received a so-called “Target Letter” from Special Counsel Jack Smith’s prosecutorial team, indicating that Mr. Trump is the subject of the federal investigation into the January 6, 2021, Capitol attack.  It almost certainly portends an indictment of Mr. Trump for his part in inciting the insurrection. 

I was obviously never a judge; I never did criminal law; I did very little courtroom work in my career.  While I stand ready to be corrected by any of those reading these notes who have oceans more trial experience than I have, if I was the District of Columbia federal judge hearing the insurrection case against Mr. Trump, I’d have to think pretty hard about whether to grant the Trump team’s inevitable motion to significantly delay the trial date.  A criminal defendant should be given a fair opportunity to defend him/herself, and since Mr. Trump is now scheduled to defend himself in New York in March against authorities’ state law charges that he criminally falsified business records, he is now scheduled to defend himself in Florida in May against Mr. Smith’s team’s federal charges that he misappropriated and mishandled classified documents, and he is reportedly facing an August indictment in Georgia by Georgia authorities for his efforts to overturn the 2020 Georgia presidential results – a case that will be on its own state court scheduling track – it’s perhaps becoming problematic as to how, in fairness, a trial dealing with insurrection charges against Mr. Trump could be scheduled prior to the 2024 presidential election.

Next:  The most recent edition of Foreign Affairs Magazine is entitled, “Tell Me How This Ends – Is there a Path to Victory in Ukraine?”  I haven’t read all the pieces, but one addresses all the ways that the war could end up destabilizing Russian President Vladimir Putin and lead to peace.  I consider the authors’ premises closer to pipedream than reality.  If Putin was going to be deposed, it would most probably have resulted from Yevgeny Prigozhin’s Wagner Group’s short-lived and quickly-quashed revolt (which arose, as far as I could tell, not from any wish by Mr. Prigozhin to end the war but because Mr. Prigozhin didn’t think Putin was providing his Group sufficiently aggressive assistance).  Another essay declared the war “unwinnable,” noting that even as Ukraine has launched its counteroffensive, “Russian forces are heavily dug in on the most likely axis of advance in the south.”  Former Google CEO Eric Schmidt echoed in the Wall Street Journal earlier this month, “Between the two armies, there are at least 3 miles of heavily mined territory followed by rows of concrete antitank obstacles, with artillery pieces hidden in nearby forests.  The Russian military has amassed so much artillery and ammunition that it can afford to fire 50,000 rounds a day – an order of magnitude more than Ukraine.  Traditional military doctrine suggests that an advancing force should have air superiority and a 3-to-1 advantage in soldiers to make steady progress against a dug-in opponent.  Ukrainians have neither.”  (Mr. Schmidt is obviously an expert in technology, not military tactics, but I quote him because he summarizes sentiments I have heard expressed in other quarters.)

Although some have deplored the Biden Administration’s agreement to provide Ukraine with cluster bombs due to the devastating impact that such launched but unexploded devices can have on civilian populations, I tend to give the Administration the benefit of the doubt:  other available artillery may be dwindling, and President Volodymyr Zelenskyy seems best able to determine whether or not his people are better served by deploying such weapons on his soil.  

One can hope but it seems optimistic to expect that the Ukrainians will make significant headway with their current counteroffensive.  (As reported above, the Ukrainians have been directing their efforts at the southwest areas of the conflict zone, presumably in an attempt to obtain secure access to the Sea of Azov and the Black Sea that seems essential if the nation is to survive economically when the conflict ultimately ends.)  Current accounts are rife with seemingly eerily-apt references to World War I; Barbara Tuchman noted in The Guns of August that after Germany failed to secure a quick military victory by early autumn 1914, “[Then] came the slow deadly sinking into the stalemate of trench warfare. … [L]ike a gangrenous wound across French and Belgian territory, the trenches determined the war of position and attrition, the brutal, mud-filled, murderous insanity known as the Western Front that was to last for four more years.”

The general consensus among commentators is that the parties should be looking for a negotiated settlement.  Various options for achieving such a result have been offered:  immediately making Ukraine a member of NATO; having Ukraine and Russia agree to an armistice such as exists in Korea; or having America provide defense assurances to Ukraine such as it provides to Israel.  The difficulty with these and any other proposals is plain:  even if Ukraine was ready to negotiate a peace arrangement – and it’s not – Putin isn’t going anywhere and he isn’t interested in negotiations. 

I’m confident that the Russian President sees what we all see:  Russia can’t conquer Ukraine militarily, but it can still win – if former President Donald Trump is re-elected.  Putin won’t make meaningful overtures for peace with Ukraine unless and until he sees that neither Mr. Trump nor any other isolationist MAGA has a realistic opportunity to win the U.S. presidency.  It is what it is.  If counseling President Joe Biden, I’d advise him to continue explaining to the American people why Ukraine’s fight is also a fight for our freedom and begin messaging that it is unlikely that there will be a meaningful opportunity to achieve a negotiated settlement until at least 2025.

Next:  Republican Senate Minority Leader Mitch McConnell’s recent mental “freeze” – some months after he sustained a head injury in a fall – is extremely troubling.  Even putting aside human kindness, the possible reminder to some of President Joe Biden’s potential frailty (the men are the same age), and despite Mr. McConnell’s deplorable manipulation of Senate procedures to achieve an aggressively conservative U.S. Supreme Court (efforts which, ironically, have so far backfired on Republicans politically), I would submit that those concerned about American democracy should hope that Mr. McConnell remains sufficiently possessed of his faculties to continue to lead Senate Republicans through 2024.  He clearly has no regard for Mr. Trump, and has used his position to limit MAGA influence in the Senate and to support the Administration’s efforts in Ukraine.

Finally:  This week, Mr. Smith filed a superseding indictment in the classified documents case against Mr. Trump, and added Carlos De Oliveira, a Mar-a-Lago property manager, as a defendant.  The superseding indictment alleges, “De Oliveira told Trump Employee 4 that ‘the boss’ wanted the server deleted. … De Oliveira then insisted to Trump Employee 4 that ‘the boss’ wanted the server deleted and asked, ‘What are we going to do?'”

Mr. Smith’s team is clearly attempting to pressure Mr. De Oliveira to turn state’s evidence.  If Mr. De Oliveira does elect to cooperate with prosecutors and his testimony supports their charges, it will seemingly directly implicate Mr. Trump in a criminal conspiracy.  The indictment’s allegations regarding Mr. De Oliveira reminded me of a reference posted here in February, 2018, relating to Special Counsel Robert Mueller’s investigation of Mr. Trump:

“As aptly noted in the movie, You’ve Got Mail, The Godfather is … the I Ching; the sum of all wisdom; the answer to any question. 

Not specifically called out in the film, Mario Puzo wrote in the novel:

‘[The fictional Don Corleone] … put layers of insulation between himself and any operational act.  When he gave an order it was to [the Consigliore] or to one of the caporegimes alone.  Rarely did he have a witness to any order he gave any particular one of them …

Between the head of the family, Don Corleone, who dictated policy, and the operating level of men who actually carried out the orders of the Don, there were three layers, or buffers … each link of the chain would have to turn traitor for the Don to be involved …’

If Mr. Mueller and his team are seeking high-level corroboration of evidence against the President, whether they secure it may come down to whether Mr. Trump read The Godfather, or merely saw the movie …”

If Mr. De Oliveira ultimately confirms the Special Counsel’s allegations, I’ll no longer need to wonder; it will be clear that Mr. Trump only saw the movie.  😉

Pledging Our Sacred Honor

“You must not weaken in any way in your alert and vigilant frame of mind.  Though holiday rejoicing is necessary to the human spirit, yet it must add to the strength and resilience with which every man and woman turns again to the work they have to do, and also to the outlook and watch they have to keep on public affairs. …

[W]e have yet to make sure … that the words, ‘freedom,’ [and] ‘democracy’ … are not distorted from their true meaning as we have understood them.  There would be little use in punishing the Hitlerites for their crimes if law and justice did not rule, and if totalitarian or police governments were to take [their] place ….”

  • British Prime Minister Winston Churchill, May 13, 1945

As incongruous as it seems to quote an Englishman to mark our Independence Day, Mr. Churchill’s remarks to the British people – on a date after the fall of Nazi Germany but before the defeat of Imperial Japan, and as the indications of Soviet Russia’s designs for eastward European territorial domination were first appearing — nonetheless strike me as particularly relevant to our current day, as the illiberal machinations of so many of the leaders and members of one of our major political parties continue unabated.  

If we continue to hold it a truth “self-evident,” as our founding fathers declared, that all persons “are created equal,” and “endowed by their Creator with certain inalienable rights,” let us take a moment during the coming weekend’s celebrations to pledge, as they did, “our sacred Honor” (think about the power of those words:  sacred Honor) to through Constitutional means apply our strength and resilience, as Mr. Churchill exhorted, to keep our watch on public affairs, and to the work we have to do to preserve our democratic way of life.

MAGAs don’t “own” our flag; we do.  I find their parading around in it a despicable desecration of it.  Embrace the red, white, and blue, the stars and stripes, and the truths and freedoms it represents. 

Happy Holiday.

On Mr. Trump’s Indictment for Mishandling of Classified Documents: A Postscript

Amid summer chores, I’ve been reflecting further upon some of the comments in this original post.

Let’s start with a name game:  John Sirica.

Doesn’t mean anything to you?  In that case, I suspect that you’re a mere youngster 😉 .  I would venture that that name will ring at least a vague bell for all Americans born in 1960 or before, and is well known to virtually all American lawyers of any age.

Judge John J. Sirica presided over the Watergate trials in the early 1970s in Washington, D.C.  His administration of the trials was widely lauded then and since. 

Judge Sirica died in 1992.  The first sentence of his Washington Post obituary referred to the fact that he had presided over the Watergate trials.

I declared in this original post:  “Judge Aileen M. Cannon, whom [former President Donald] Trump appointed to the bench in 2020, has been assigned to hear his case. … [I]t seems that by her earlier rulings [in the same documents case] Judge Cannon has proven herself to be incompetent, a partisan hack, or both.  The judge’s ability to influence the trial’s course and perhaps outcome is obvious:  it takes no prescience to predict the coming wrangling between Mr. Trump’s attorneys and federal prosecutors over jury selection, admissibility of evidence, and scheduling (with delay obviously favoring Mr. Trump).”

We’ll get back to the ramifications of a prolonged trial schedule below.  As to Judge Cannon, I haven’t been able to find any rating by south Florida lawyers as to how ably she has performed in normal cases in her short judicial tenure – since she’s only been on the bench a couple of years, she obviously doesn’t have a lot of judicial experience – and she may indeed lack the competence to preside over such a high-profile matter.  That’s to be determined, and if she doesn’t feel she’s professionally up to it, she should recuse herself.  But as to predictions – including mine – of her pro-Trump leanings, I’m taking a pause.  It’s seemingly possible that Judge Cannon is more horrified than anyone else by her random selection to hear this case.  She’s in her early 40s – literally at the age of our children and of a number of those that read these pages.  She has a husband and two school-aged kids.  Federal trial judges don’t float upon hallowed pedestals.  She undoubtedly goes to the grocery store.  Her kids probably play soccer or engage in other like activities.  She has the bulk of her career in front of her.  She’s already been reversed in a rather humiliating fashion by United States Court of Appeals for the Eleventh Judicial Circuit, a conservative Circuit, for her earlier Trump-friendly rulings in this case.  She can’t escape into the curtained hush the way U.S. Supreme Court Associate Justice Clarence Thomas does.  She may now believe that what looked like a sweet legal gig in 2020 has turned into a nightmare of being engulfed by the Trump Maelstrom.  If advising her, I’d counsel as I would one of our own kids:  You are where you are.  Be careful.  How you handle this case will literally be the first line of your obituary.  Do the best you can.  For your own good, play it straight.

Judge Cannon need look no further than the other defendant in the case – Walt Nauta, Mr. Trump’s “body man” and alleged co-conspirator — to realize that abiding by Mr. Trump’s wishes does not necessarily auger a comfortable life.  Do I think that if Mr. Trump is found guilty by a jury, Judge Cannon will, as some wildly progressive pundits have suggested, disregard the jury verdict and issue a judgement of acquittal to Mr. Trump?  No.  Do I think that Judge Cannon will refuse to admit a lot of the government’s evidence now in the public domain?  Even if she is so inclined, with the Eleventh Circuit looking over her shoulder, I don’t.  (Although the evidence from Mr. Trump’s lawyers, obtained by the government through a piercing the veil of attorney-client privilege, is perhaps on the fence.)  Is there a likelihood that she will provide Mr. Trump more leeway in jury selection and scheduling than the government prefers?  Very possibly — these are areas in which appellate courts generally accord greater deference to trial judges — but the government’s case appears sufficiently strong to withstand these likely hindrances.  If Judge Cannon is savvy – or unless her career aspiration is now to become a Fox News legal analyst — I expect her to play it straight enough.

All those middle-of-the road notions now expressed, I well recall that in February of 2019, considering the Senate’s confirmation process for then-Attorney General Nominee William Barr, I declared in these pages:  “Partisans on both sides are currently all too-ready to impute ulterior motives to those with whom they disagree. … I am willing to believe, unless and until I have evidence to the contrary, that Mr. Barr will do what is necessary to protect the United States while conducting his duty.”  We all saw how those Pollyannaish sentiments fared 😉 .

As noted above, in the original post I also suggested that a delay in the trial helps Mr. Trump politically – a sentiment echoed by others.  I would now add a bit of a qualifier, at least in my own thinking.  A delay seemingly aids Mr. Trump’s campaign during the Republican presidential nomination process and it certainly helps him if he wins the election and the case hasn’t been resolved prior to Inauguration Day, 2025.  (I suspect that reelection is now at least as important to the former president as a way to avoid having jail be the final culmination of a 2016 branding exercise that went WAY wrong – from his perspective and our democracy’s – than it is for the actual return to power it represents.)  At the same time, I have come to believe that any still-pending charges against him for the mishandling of classified documents will weaken his support in the general election among swing and moderate Republican voters in swing states.

Enough.  The weekend is upon us.  May all Dads, and those of any gender who provide fatherly love and guidance to others, have a wonderful Father’s Day.

On Mr. Trump’s Indictment for Mishandling of Classified Documents

“For this man, who is basically a nihilistic moron, to go to jail, potentially for a long time – these Espionage Act charges bring very heavy sentences – to potentially go to jail for something so stupid and pointless and silly and useless is actually kind of fitting.”

  • George Conway, MSNBC’S Morning Joe, June 6, 2023

As all are aware, former President Donald Trump has been indicted by a grand jury of Floridians for criminal mishandling of classified documents at his Florida Mar-a-Lago estate.  The counts include violations of the Espionage Act and obstruction of justice.  In the past, Mr. Trump has gone so far as to famously declare that a president can declassify documents “even by thinking about it” – the first reliance on the Think System I can recall since that of the fictional Professor Harold Hill in The Music Man.  A few impressions, likely none you haven’t had yourself.

First, the Wall Street Journal was quick to note that the indictment “mark[s] the first time in history that the federal government has brought charges against a former president.”  While true, this is irrelevant.  Federal charges would almost certainly have been brought against then-former President Richard Nixon for his part in the cover-up of the Watergate break-in had he not been pardoned by then-President Gerald Ford.  (Mr. Ford presumably wouldn’t have subjected himself to what he knew would be the ensuing political firestorm if he didn’t think federal charges against Mr. Nixon were in the offing.) 

Next – and as anyone with the barest modicum of knowledge about our criminal justice system understands — Mr. Trump was not – as Republican Speaker of the U.S. House of Representatives Kevin McCarthy tweeted after the indictment was announced – indicted by President Joe Biden.  Mr. Trump was indicted by a federal grand jury of ordinary (an adjective which I concede sounds inaptly deprecating) Floridians who determined from the evidence presented by Special Counsel Jack Smith’s team that there was probable cause to believe that Mr. Trump committed the crimes for which he will be arraigned.  Mr. McCarthy and other Republican officeholders are shamelessly and gutlessly pandering to a rabid and willfully ill-informed political base.  Their assertions about the “weaponization” of our legal system are a despicable betrayal of their official trust.  For Mr. McCarthy to pronounce in the same tweet that he believes in “the rule of law” is execrable hypocrisy.

I have seen liberal legal pundits bemoan the fact that the case has been brought in Florida, since the jury pool will be more favorable to Mr. Trump in Florida than in Washington, D.C.  I’m glad that it has been brought in the Sunshine State.  Since most of the allegedly illegal activities took place in Florida, Florida is obviously the more appropriate jurisdiction from a legal perspective (which is really what matters) but what will also make sense to the average citizen.  From a larger perspective, this prosecution must maintain credibility with the majority of Americans in the face of what will be a concerted effort by Mr. Trump and his cult to discredit it.  Mr. Trump not only has a right to, but America needs him to have, a trial in front of a jury that most Americans will consider balanced (presidents, present and past, have no “peers”).  Mr. Trump is entitled to the presumption of innocence until he is proven guilty.  I will venture that a notably larger percentage of our citizens would harbor doubts about the fairness of any guilty verdict issued by a Washington, D.C. jury than they will about one rendered by a Florida jury. 

Judge Aileen M. Cannon, whom Mr. Trump appointed to the bench in 2020, has been assigned to hear his case.  You may recall that Judge Cannon issued a number of rulings early in the documents investigation inappropriately favorable to Mr. Trump that were later sharply overturned by the United States Court of Appeals for the Eleventh Judicial Circuit, a conservative Circuit.  I find her selection highly unfortunate.  This case deserved the best that the United States District Court for the Southern District of Florida had to offer.  While I saw one legal pundit opine that he considered her suitable, it seems that by her earlier rulings Judge Cannon has proven herself to be incompetent, a partisan hack, or both.  The judge’s ability to influence the trial’s course and perhaps outcome is obvious:  it takes no prescience to predict the coming wrangling between Mr. Trump’s attorneys and federal prosecutors over jury selection, admissibility of evidence, and scheduling (with delay obviously favoring Mr. Trump).  While some legal analysts have suggested that Judge Cannon might be “chastened” by the harsh manner in which the Eleventh Circuit dispatched her earlier rulings favoring Mr. Trump, I am pretty confident that Mr. Smith and his team were disappointed that she has been assigned to preside.

My greatest concern is for the safety and protection of the jury panel.  An article appearing on uscourts.gov, “How Courts Care for Jurors in High Profile Cases,” states, “Federal judges have adopted a wide range of precautions to ensure that juries are protected from threats or harassment in high-profile cases.”  All precautions ever taken to protect federal jurors – and I suspect some new ones – should be employed to provide the panel the most stringent protections in the history of the federal judicial system.  The trial judge should make clear at the outset of the process that anyone that publishes or facilitates the publication of the name of any member of the jury or jury panel will be held in contempt of court – and slapped in jail until the judge would see fit to release them.  (If I were the judge, that would be as long as I could legally justify.) 

Both Mr. Trump and the Republican propaganda machine are in high gear, claiming that Mr. Trump is being treated unfairly as compared to President Joe Biden, whose staff discovered classified documents from Mr. Biden’s days as Vice President at Mr. Biden’s Delaware estate and in his Washington, D.C. office.  I’ve noted earlier in these pages the likelihood that the average citizen will tend to conflate the actions of Messrs. Trump and Biden.  I think there is a substantive difference in the behavior of the two men, but my notions could not be any more irrelevant.  Since Mr. Biden’s activities are being investigated by Special Counsel Robert Hur, a former U.S. Attorney appointed by Mr. Trump, Mr. Biden’s circumstances should be left to Mr. Hur and his team.  I would submit that if Mr. Hur determines that there is evidence that Mr. Biden committed a crime and issues a report, similar to the Mueller Report, implying that he would seek a federal grand jury indictment against Mr. Biden if Mr. Biden was not president, so be it.  If evidence is presented to a federal grand jury after Mr. Biden leaves office and a federal indictment is thereupon issued against Mr. Biden, Mr. Biden will then face a jury.  That’s the way the system works.

But as to Mr. Trump:  Make no mistake; the game is now on.  While the Wall Street Journal declared in a weekend editorial that federal prosecutors “fail to understand what they’ve unleashed,” I – unlike Mr. McCarthy — do believe in the rule of law, and there was obviously enough evidence against Mr. Trump to bring this prosecution.  (On Fox News over the weekend, Trump Administration Attorney General William Barr, who unconscionably defended Mr. Trump in various ways for years, called the indictment “damning.”)  That said, I agree with the Journal that we have now entered a perilous period, but not for the reason it cites.  Assuming that Mr. Trump doesn’t enter a plea bargain – seemingly highly unlikely, given his character – there will ultimately be one of three outcomes here:  a conviction, which probably removes any possibility of his gaining the votes of a sufficient number of swing state swing voters to win the presidency; a hung jury, which I suspect will marginally help him – which, if it does, could be decisive in a close presidential contest; or an acquittal, which will afford him both vindication and seeming proof that the system was, as he has claimed, rigged against him.  The last of these could well win him re-election.  Mr. Conway’s wry observation aside, remember O.J. Simpson; now that Mr. Simpson is on parole after completing his minimum nine-year sentence for armed robbery and kidnapping, I am sure that we are all confident that he has resumed his search for the “real killers” of his wife, Nicole.      

Enough.  As Mr. Trump himself has probably already observed:  We’ll see what happens.   

The Consequences of Addiction

I’ve been contemplating further on the Dominion Voting Systems’ (Dominion’s) defamation lawsuit against Fox Corp. (Fox), which led to revelations that Fox knowingly spread falsehoods about Dominion’s voting systems which, by extension, lent credence to former President Donald Trump’s and his acolytes’ unfounded claims that that the presidential election had been stolen from Mr. Trump.  My reflections have landed upon the same conclusion as I’ve expressed in earlier posts about what I now consider the greatest threat to our democracy.  It actually isn’t Mr. Trump, Fox, or alt-right media.

First, a seeming aside, but not:  on April 20, Barron’s stated that Philip Morris International narrowly missed analysts’ projections for its first quarter 2023 revenue – a mere $8 billion instead of $8.1 billion – but reported, “[Chief Financial Officer Emmanuel Babeau] argues its long-term smoke-free goals remain on track.”  Then:  “[Philip Morris] is aiming to make a majority of its sales from smoke free products by 2025. Its heat sticks are in the process of getting approval, and the company plans to relaunch IQOS, a heated tobacco product, in the U.S. next year.”  Later:  “Babeau notes that … the longer-term outlook remains robust, given broad-based adoption of its smoke-free products, like IQOS, as well as the company’s ability to maintain market share in the traditional cigarette market, even as it recedes in importance for the business. Although combustible tobacco revenue was lower, that was offset by price increases of more than 7%, demonstrating, he says, that ‘consumers are ready to accept price increases because of inflation.’  On the growing smoke-free side of the business, IQOS users increased by nearly one million since the end of 2022, while its Zyn nicotine pouches ‘are absolutely flying,’ the CFO says, with nearly 47% growth in U.S. shipments. … Philip Morris’s sales show ‘remarkable numbers in terms of growth,’ Babeau says.”  In other words:  Philip Morris’ shareholders should be reassured of the company’s future profits. 

Contrast this with statements from the Centers for Disease Control (CDC):  “Research suggests that heated [i.e., smoke-free] tobacco products and their emissions contain many of the same harmful ingredients as regular cigarettes, as well as other harmful ingredients not present in regular cigarettes.”  The CDC classifies nicotine pouches – placed in the mouth, although containing no tobacco — with “tobacco products,” which the CDC says can lead to nicotine addiction and may lead to oral cancers.  Those of us who know baseball history remember the stories of the old time major league tobacco chewers who ultimately suffered and succumbed to mouth cancer.

Philip Morris is selling and stoking addiction.  It is perhaps but a slight exaggeration to suggest that everybody over the age of 7 in this country with any sense knows that tobacco and nicotine, no matter the form, are harmful.  Philip Morris’ customers choose to ignore the risk.  They even defy inflation for the privilege of consuming products that will kill them.

Now to Fox.  Amid the torrent of commentary attending the Dominion – Fox settlement, a talking head mentioned something I had forgotten:  that for a period after the 2020 presidential election, Fox did attempt to back away from the Trump cohort’s claims that the election had been stolen – and that the channel immediately began losing ratings to tiny outfits One American News (OAN) and Newsmax, which were entirely committed to promoting the hoax.  In other words, an apparently notable segment of Fox viewers didn’t want to hear facts – they were determined to believe what they wanted to believe.  They had become addicted to the information opiate that Fox and the rest of the alt-right media had been selling them in ever-more-powerful doses over the preceding 25 years.  When Fox tried to provide them alternate weaker stuff, they went looking for another dealer.  Fox saw that its profits were going to suffer.  If the Murdochs, Fox management and Fox hosts didn’t know it before, they knew it then:  once Fox had led its viewers; now Fox is their captive.  Notwithstanding its recent dismissal of Tucker Carlson, its virulent dissimulation will continue because, aside from rare hiccups like the Dominion lawsuit, such is necessary for Fox to maintain its profits. 

Philip Morris and Fox are publicly traded companies.  Some would hold that it is actually their duty – in order to maximize their shareholders’ returns – to create and cater to poisonous addiction.

Who’s really responsible for the damage these companies cause?  We have adopted, and anyone with a conscience fully supports, a regulatory scheme to limit certain tobacco company actions – perhaps most crucially, restrictions on their malign attempts to hook impressionable youth (we can thank the Almighty that the Second Amendment doesn’t include the right of a well-regulated militia to keep and bear tobacco 😉 )– but ultimately individuals make their own decisions and, even if they at first make bad choices, can choose to rid themselves of nicotine addiction; but despite the oceans of data available to acquaint anyone able to see or hear about the dangers of Philip Morris’ products, the fact remains that Philip Morris is projecting “remarkable numbers in terms of growth” because millions of Americans willingly consume its products knowing the dangers.

Fox is obviously a more difficult case; it operates at the crossroads of free speech and American capitalism.  On April 21, during MSNBC’s Morning Joe broadcast, Washington Post Associate Editor Eugene Robinson asked Andrew Weissmann, formerly a lead prosecutor in Robert Mueller’s Special Counsel’s Office among other impressive offices and currently a professor at New York University Law School, whether an adverse ruling to Fox if the Dominion defamation suit case gone to trial “ … might have had an impact on the governing Supreme Court decision … that gives wide latitude to reputable news organizations ….”

Mr. Weissmann responded:  “I think that the key word that you used, Eugene, is the word, ‘reputable.’  If I were at a reputable news organization, I don’t know that I’d be particularly worried [about potential expanding defamation liability] at what we saw at the National Enquirer, which was completely colluding with the Trump campaign, or at what we saw at Fox News.  If you talk to any reputable journalist, [what the National Enquirer and Fox News did] is so far beyond the pale in terms of what news is supposed to be; you’re not just colluding with one political campaign.  So I don’t think … you need to worry …. The [interest of the private companies bringing defamation suits against Fox News] is not to get a public apology, to defend American democracy, or to protect the information flow.  They’re trying to get the damages to their clients.  And so that’s where you really think the [the Federal Election Commission], which did impose a small fine on the National Enquirer, needs to step in, and it can’t be a small fine.  … Is there going to be some regulatory damage that’s going to deter [the promulgation of lies] so we don’t have the repetition.  Because it’s really easy [for a media company with a business model like Fox News’] to just simply avoid denigrating a company so you won’t get sued and still promulgate a big lie.  So you need to have the government step in to have some kind of regulation of that kind of conduct. [Emphasis Added].” 

Mr. Weissmann has an august legal background while I’m just a retired lawyer who worked for a Midwest-based company, but I was appalled by his answer.  What’s a “reputable” news organization is in the eye of the beholder.  I wouldn’t like to have a regulatory apparatus run by Mr. Trump or FL Gov. Ron DeSantis determine who was a “reputable” news organization, or what speech should be regulated.  Mr. Weissmann, I, and all lawyers of our generation were taught the 1919 words of Supreme Court Justice Oliver Wendell Holmes, Jr.:  “The most stringent protection of free speech would not protect a man falsely shouting fire in a theatre and causing a panic [Justice Holmes’ Emphasis].”  Although one might argue that Fox’ lies amounted to falsely shouting “fire” in the theater of American public opinion, I would counter that unlike an actual theater occupant, who would have no way of easily ascertaining if the shout was false, any American citizen who wishes to discern the validity of any political media assertion has the ready means to do so.

I am accordingly opposed to any regulation of Fox or other alt-right outlets, no matter what venom they spew.  Any American who wants to see beyond their misrepresentations, can.  We – and I suspect all reading this note – have beloved family members and friends in the alt-right vortex, who, politics aside, would do anything for you.  One continues to have the same affection for them, as one would continue to have for a family member or friend who smokes or is in the grip of an opioid addiction.  Even so, Barry Goldwater and Ronald Reagan – actual Republicans – preached and believed in personal responsibility.  I would submit that the greatest danger to our republic today isn’t blackguard politicians or unscrupulous media, although their message enables the disease to metastasize; it’s our citizens who willingly choose to stay hooked on their own poisonous alternate reality.

Perhaps a Bungled Opportunity on the Debt Ceiling

I haven’t posted much in recent weeks about the growing debt ceiling crisis; it is what it is and we are where we are.  What prompts this note is a May 20 Politico report:

“Looking back on the first two years of [President] Joe Biden’s presidency, [U.S. VA Sen.] Tim Kaine has one big regret about a largely successful stretch of Democratic rule: That his party didn’t try to raise the debt ceiling on its own last year.

The Virginia senator believes that if Democrats had tried to hike the debt limit before the House GOP swept into a majority, even Sen. Joe Manchin (D-W.Va.) might have gone along with it. But Biden’s party never moved on the issue. And six months later, Democrats are stuck doing exactly what they said they wouldn’t — negotiating on the debt ceiling with Republicans.

‘If I could do one thing different,’ Kaine lamented this week, it would have been a late-2022 debt hike. ‘And I was saying it at the time … “‘hey, we got the votes.”’”

I noted in these pages on November 17, 2022:

“Given the paralysis and partisan histrionics that see overwhelmingly likely to ensue when Republicans take control of the House of Representatives, I would hope that for the good of the nation, during the upcoming lame duck Congressional session Speaker of the House of Representatives Nancy Pelosi and Senate Minority Leader Mitch McConnell (due to the power of the filibuster) can agree to pass measures that have received or could garner bipartisan support to blunt some of the most destructive future MAGA impulses. … Below is a short list of such potential measures. …

  1. Raising the federal debt limit to an amount projected to carry the United States through to April 1, 2025.  Our citizenry will really decide the future direction it wishes the nation to take based upon whom it elects president in 2024.  In the meantime, the full faith and credit of the United States should not be held hostage to partisan rabble. …”

Since I don’t claim expertise in the nuances of the U.S. Senate’s filibuster rule, it’s not clear to me, given Mr. Kaine’s comments quoted by Politico, whether Democrats, as I suggested in my post, needed a number of Republican Senators’ support to have raised the debt ceiling in late 2022.  I’ve been assuming that they needed Republican Senate votes, and couldn’t get them.  One could infer from Mr. Kaine’s comments that they didn’t need Republican help.  If six months ago, I – an old retired Midwesterner —  could predict the debt ceiling train wreck we are now facing, it makes one blink to think that Democratic Congressional leadership didn’t see it coming.  If Democrats failed to raise the debt ceiling although they had the votes (alone or with Republican Senate help) to do so — a point I’d like to see definitively addressed – such failure can at best be characterized as shockingly naïve, and arguably more appropriately as startlingly obtuse legislative malpractice.