Thursday, November 05, 2020

 This is an analysis I did on the 2000 election almost 18 years ago:

Summary of the Bush v. Gore U.S. Supreme Court Decision, December 12, 2000

Based on the book Betrayal of America by Vincent Bugliosi and The US Supreme Court published decision in Bush v. Gore, December 12, 2000

By Jim Maxedon

Note: I will state up front that I accept that George Bush is President of the United States and is due all the respect and deference due the President. I do not advocate that this fact be changed except through the established means of a fair and proper 2004 Presidential election. I further state that I voted for Al Gore in the 2000 election. While I am a life-long Democrat, and I consider myself moderate, I do not consider the term "liberal" to be any more pejorative than the term "conservative", and I will assume that anyone who does is most likely an extreme right winger or "survivalist".

I have read the US Supreme Court's December 12th 2000 decision on Bush v. Gore as well as all concurring and dissenting opinions. You can, too at:

My goal in this essay is simply to enlighten interested people about the way in which the result of the 2000 Presidential election was determined by the US Supreme Court.

Text in red is attributed to Bugliosi's Betrayal of America. Text in green is attributed to the US Supreme Court. Where the words "Court" or "Supreme Court" are capitalized they refer to the US Supreme Court. The same words in lower case refer to the Florida supreme court.


Summary Points:

Situation: By the day after Election Day enough votes had been counted in all 50 states to determine that the winner of the majority of electoral votes (the eventual President) would depend on which candidate had the most votes in Florida. After the initial machine count and automatic recount in Florida, Bush led Gore by just 327 votes.

Briefly, Al Gore believed that since the Florida machine counts were so close, there was a very good chance that there were enough uncounted legal votes to change the outcome of the election. He asked the Florida supreme court to order a manual recount of those votes. The Florida supreme court agreed and ordered a recount of the undervotes in all counties in Florida on December 8th. The recount was proceeding in a timely manner until the US Supreme Court halted the vote on December 9th saying, in essence, that Bush's "presidency" may be harmed if it turned out that he didn't get the most votes. After waiting most of 3 and a half days to issue a ruling, at 10:00PM on December 12th, the Supreme Court ruled that the winner had to be determined by midnight of that same day, that the recount might treat different voters' ballots differently, and that there was no way to remedy this violation of the equal protection clause and complete the recount in two hours. The Court, therefore reversed the Florida court's order for a recount, effectively declaring the election over and George W. Bush the winner.

Boiled down to its essence, the Supreme Court ruled that because of the various standards of determining the voters' intent in the Florida counties, voters were treated unequally, since a vote disqualified in one county (the so-called undervotes, which the voting machines did not pick up) may have been counted in another county, and vice versa. This, they ruled, would violate the Fourteenth Amendment's equal protection clause. Since no standard could reasonably be put in place and the recount could not be completed in the two hours between the Court's ruling and their perceived deadline, they ruled that the count could not resume and effectively ended the election. But the Court had previously stopped the recount on December 9th then ruled on the 12th that there was no time to complete the recount.

Recount ordered by the Florida supreme court. On December 8th, 2000, the Florida supreme court ordered a recount of all undervote ballots throughout the entire state. This means counties that favored Bush as well as counties that favored Gore would have recounts. Thus, the ordered recount would not, on its face, favor Gore nor "harm" Bush.

Recount stayed by the US Supreme Court. On December 9th, the Supreme Court issued a stay of the Florida court's ruling in which Justice Scalia declared that a continuation of the recount of all undervotes in all Florida counties would threaten irreparable harm to Bush by casting a cloud upon what he claims to be the legitimacy of his election. In other words, although the election had not yet been decided, Justice Scalia was presupposing that Bush had won the election, had a right to win it, and any recount that showed Gore got more votes in Florida than Bush could "cloud" Bush's presidency.

Bush sued Gore on three points. The equal protection issue is the only issue upon which the Court based their final decision in ruling in favor of Bush. In order to "equally protect" all undervoters, the Court decided that none of their votes could be counted.

The December 12, 2000 Supreme Court decision was a per curiam decision. Per curiam means "by the court" and is almost always a 9-0 ruling on a relatively unimportant and uncontroversial case. Furthermore, a per curiam ruling is issued with no justice's name attached to it. This ruling was not unanimous. The Court ruled 5-4, along party lines, in favor of Bush. Some have argued that the ruling was 7-2 and therefore included two "liberal" justices, but the fact is that while two of the justices in the minority (Souter and Breyer) agreed that there was merit to the question of "equal protection" in the case, they disagreed that there was no way to fairly remedy the situation in Florida in a timely manner so that the counting of valid ballots should be halted. In fact, they agreed with the Court's minority that the US Supreme Court should not have taken this case in the first place. Justice Souter in his dissent stated, "Unlike the majority, I see no warrant for this Court to assume that Florida could not possibly comply with this requirement before the date set for the meeting of electors, December 18".

Legal standing to sue and "harm" to Bush. In most every equal protection case, the case is brought by the party being harmed. In the case of the Florida election, the party harmed according to the equal protection clause would be the voter who was treated differently from other voters. No such voter brought suit. Instead George W. Bush sued under the equal protection clause. He claimed the recount would harm him. But Bush could only be "harmed" if the recount favored Gore or if he somehow had a legitimate claim to the presidency and a recount would change that. Since the recount was for all counties, there was just as much chance for the vote to go Bush's way as for Gore's. What legitimate claim to the presidency did Bush have? An incomplete tally of only the machine-counted votes? "But the votes were counted twice; they didn't have to be counted again," was heard. However, the absentee votes were still being counted. "All legal votes had been counted." Just because a machine did not count a vote doesn't mean the vote was not a legal, valid vote. As a further and defining note, the Court has ruled in numerous prior cases that the equal protection clause of the Fourteenth Amendment only applies where the discrimination is intentional. No intentional discrimination was ever suggested in the case in Florida.

Treating votes differently. Some Florida counties use punch card readers to tally ballots. Others use optical scanners. Optical scanners have a significantly lower rate of undercounting votes. Therefore based on the balloting and counting method used in each county, ALL voters in one county WILL have a higher or lower probability of having their votes not counted and therefore all are denied "equal protection" based on the reasoning of the Supreme Court in Bush v. Gore. The fifty different states have many ways of balloting and determining how a voter voted. Most states (including Texas) allow for manual counts with varying standards for counting undervotes. The Supreme Court presented no relevant precedent for their interpretation of the equal protection clause in this ruling and further stated that this interpretation applied ONLY to Bush v. Gore and was not to be used as precedent in any future case. According to the decision, "Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities."

Bush sued Gore citing three points:

  1. The Florida supreme court's decision to allow the counties to continue counting votes after Secretary of State Kathleen Harris had "certified" the Florida election count on November 26th, was, in effect, creating "a new law" after the election was held thus violating the US Code (3 USC § 5). The Court did not uphold this claim.
  2. The Florida supreme court's decision to allow the counties to continue counting votes after Secretary of State Kathleen Harris had "certified" the Florida election count on November 26th would violate Article 2 of the Constitution which says that the states' legislatures would determine the manner in which electors were chosen. In effect, Bush was arguing that the Constitution's delegating the authority to create laws to the legislature eliminated the state court's power to interpret those laws. The Court did not uphold this claim.
  3. Because of various standards of determining the voter's intent in the Florida counties, voters were treated unequally, since a vote disqualified in one county (the so-called undervotes, which the voting machines did not pick up) may have been counted in another county, and vice versa. This would violate the Fourteenth Amendment's equal protection clause.

The equal protection issue is the only issue which the Court upheld in reversing the order of the Florida supreme court, ruling in favor of Bush. The Court gave no merit to points 1 and 2. When Bush originally asked the US Supreme Court to overturn the Florida court's order for a recount (Bush v. Palm Beach Canvassing Board), he cited these exact three issues. Astonishingly, the Court agreed to hear the case based on points 1 and 2 and completely ignored point 3, the equal protection issue upon which they based their final decision that ended the election.

The Court's "deadline" of midnight on December 12th to have the Florida vote count finalized was not a true deadline but an excuse to end the recount. If a state certifies its electors by December 12th, Congress can't question them. If a state does not make that deadline, nothing happens. The counting could continue. In 1960, Hawaii appointed two slates of electors and Congress chose one on January 4th. The appropriate US Code merely provides rules for Congress to follow when there is a conflict. Nothing in the rules prohibit a state from counting legal votes until a bonafide winner is determined. And just because votes were not counted by a punch card reader or optical scanner does not mean they were not legal votes. A legal vote based on Florida state laws and legal precedent is a vote which clearly shows the intent of the voter.

In other words, there was plenty of time to allow the Florida Supreme Court to set standards and complete a recount. The recount called for by the Florida court on December 8th was on a pace to be completed on the 10th or 11th of December, at the latest. But then the Supreme Court stepped in and stopped the counting. Even if the recount had to be started over with specific standards, there were six days remaining before the Electoral Collage was to meet. Even that date, December 18th, was not a final deadline for determining electors based on the 1960 precedent.

The Supreme Court should not have heard, much less ruled, on Bush v. Gore. The Supreme Court's minority in their dissents and numerous "liberal" and "conservative" legal scholars agree that the Court should never have agreed to consider Bush v. Gore and should not have granted Bush's request to stay the manual recount.

Justice Stevens said it best in his dissent, writing, "The Constitution assigns to the States the primary responsibility for determining the manner of selecting the Presidential electors . . . When questions arise about the meaning of state laws, including election laws, it is our settled practice to accept the opinions of the highest courts of the States as providing the final answers. On rare occasions, however, either federal statutes or the Federal Constitution may require federal judicial intervention in state elections. This is not such an occasion [emphasis added]." Justices Ginsburg and Breyer agreed.

Justice Souter in his dissent stated, "The Court should not have reviewed either Bush v. Palm Beach County Canvassing Bd. . . or this case, and should not have stopped Florida's attempt to recount all undervote ballots . . . by issuing a stay of the Florida Supreme Court's orders during the period of this review." Justice Breyer said, "And whether, under Florida law, Florida could or could not take further action is obviously a matter for Florida courts, not this Court, to decide."

Justice Stevens concludes. "Time will one day heal the wound to that confidence that will be inflicted by today's decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law."

More reading on Bush v Gore:

Bush v. Gore Blues - Professor David Kairys, Beasely School of Law, Temple University; in JURIST

Bush v Gore: What Were They Thinking? - David A. Strauss, an essay from The Vote: Bush, Gore, and the Supreme Court. "The most plausible hypothesis, I believe, is that several members of the United States Supreme Court were convinced that the Florida Supreme Court would try to give the election to Vice President Gore and would act improperly if necessary to accomplish that objective."

Bush v. Gore and the Boundary Between Law and Politics - Jack M. Balin, Knight Professor of Constitutional Law and the First Amendment, Yale Law School. This article takes every "justification" to stop the count and analyzes its reasoning and precedent. This is a long article but worth the time.

Contact the author.

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© 2002 by James R. Maxedon. All rights reserved.

Sunday, February 23, 2020

My Participation in the 2020 Nevada Caucuses

(If readers want to cut to the chase they can scroll down to "The Experience" to skip the background.)

My wife and I became a permanent residents of Nevada, the Silver State, in November 2019 and registered to vote in December when we got our driver's licenses and Nevada plates.

When I learned that Nevada was a "caucus state" I was curious as to how the caucuses worked because I ALWAYS vote in primary and general elections. I am at this time an Elizabeth Warren supporter, so I figured the best way to find out about the caucus process was to go to her local office and ask how it all works.

Warren's Carson City headquarters is about a mile from where we live, so I dropped in and met (ironically) Carson Pope, a 20-something young man, who was the sole Carson City rep for the Warren campaign. He explained the caucus system to me, and after I mentioned that I had worked on congressional campaigns in California encouraged me to not only participate in the caucus but to be a "Caucus Captain" in my precinct for Warren. I said I would consider it and eventually agreed.

To prepare for the event there were several online training sessions about how to talk to and persuade undecided voters, but most importantly, how to do the math when it came to the most important part of the process: divvying up the delegates. We got T-shirts and Caucus Captain buttons, signs and "lit" to pass out. Also some Thunder Sticks to easily identify the Warren contingent in a room full of voters.

So rather than explain the process first, I'll just describe the experience so that it's not "theoretical". As a side note, Carson City, the capital of Nevada, is also its own county.

The Experience

For the first time in 2020 Nevada allowed for early voting in the week before the Saturday caucus. Voters go to a central location in Carson City regardless of precinct and vote by ballot for a first, second, and third choice. This comes into play later in the process. My wife voted early, but I did not since I was going to participate in the actual caucus.

The caucus site for my precinct, 201, and four other nearby precincts was an alternative high school in the neighborhood. There was one other Warren captain reporting with me at 8:00 outside the site. We actually got a "wake up" text at 7:15 from the campaign. A process to report by text was set up so that we could give feed back on voter numbers, vibe, results, etc. The DNC people were doing set up inside the school while captains for all the campaigns gathered outside in the cold waiting to be let in at 10:00. All the campaigns were friendly, but it was obvious that the Sanders campaign was "flooding the zone".

At 10:00 campaign people and the public were let in to sign in and were directed to the areas set up for their specific precinct caucus. Mine was in a gym with three other precincts, and there was a lot of echo.

How The Caucus Works

The point of the Nevada Caucuses is to designate delegates to go to the County, State, and eventually the DNC Convention in the Summer. Each precinct is allocated a number of delegates based on the number of precinct voters registered in the Democratic Party. There are 456 Democratic voters in my 201 precinct, and that equates to nine delegates to be allocated. To be able to get ANY delegates a candidate must be "viable" which means they need the votes of a certain percentage of the total votes cast both in early voting and in-person at the caucus. For nine delegates the viability threshold is 15% of the total votes. Precinct 201 had 67 early voters and 34 in-person voters for a total of 101 total voters, which means the viability threshold in our precinct was 16 votes (rounding up because we are talking whole people). In other words, in order to be viable and get allocated any delegates, at least 16 early votes and in-person votes had to be for our candidate, Elizabeth Warren. (It is disturbing that only 101 out of 456 registered Democratic voters in my precinct participated.)

Our in-person group was 6 people, and we were notified that Warren got another 6 early votes for a total of 12 votes. This did not meet viability. This first round is called the "first alignment". Only Sanders and Buttigieg were viable after the first alignment. Klobuchar, Biden, Warren, Steyer, and Yang were not. So now what happens?

There is a brief period between the first and second alignments where advocates for candidates can walk around and try to convince the voters supporting other candidates to consolidate with their candidate in order to reach viability. There were a lot of Bernie and Mayor Pete people present, clearly more than for other candidates. Prior to the beginning of the caucus I had scoped out people who were not wearing Bernie or Pete gear to find out who they were supporting and if they were amenable to choosing Warren as their second choice if it came to that. So when it turned out that none of their candidates were viable I went directly to them to see if they would join the Warren group. Steyer had the same number of votes as Warren, but I was able to convince them to join us without much trouble. In the end I was able to convince 5 more people to join the 6 of us for a total of 11 in-person votes Warren.

Then the caucus chair goes to a notepad and finds out who among early voters selected Warren as their second choice. This ended up adding 6 more votes to our 11 in-person votes for a combined 17 votes. Viability! (I should note that the FIRST 6 Warren first choice early votes were cast aside and only the second choice votes counted, although the number ended up being the same.)

After this second alignment Sanders, Buttigieg, and Warren were the only candidates viable. All other voters had joined with one of these candidates with the exception of the single Yang voter who simply remained uncommitted. So the next step was to allocate the 9 precinct delegates among the remaining 3 viable candidates. This is simply done as a percentage of the total votes times the 9 delegates. So for Warren it was 17 divided by 101 times 9 or 1.51. People are rounded up so this ended up with 2 delegates for Warren.

An interesting side note is that there are rules for how delegates are allocated if the formula allocations result in one too many or one too few total delegates (10 or 8) due to rounding. I won't bore you with the particulars, but it is amusing to note that there was a deck of cards on each precinct table so that any ties were resolved by cutting cards. I heard that happened in at least one precinct in Las Vegas.

The last thing to do was register as a delegate for Warren at the Carson City county convention. I did. We'll see what happens after that.

All-in-all this was a fascinating and pleasant experience. I even met my backyard neighbor who had a particular Warren sign in her window. That ended up with us bagging some Thin Mint Girl Scout cookies from her daughter.

Tuesday, June 25, 2019

The Public Trust

The Oath: 5 USC 1331

An individual, except the President, elected or appointed to an office of honor or profit in the civil service or uniformed services, shall take the following oath: “I, AB, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”

Every federal employee takes this oath. Kellyanne Conway took it. Bill Barr took it. So did Steve Mnuchin, Wilbur Ross, Sarah Sanders, hope Hicks, and all the rest. They take this oath because it's required by law, but also because it is intended to instill the public's trust that our government officials are acting in accordance with the Constitution and the laws of our country.

Conway, Barr, Mnuchin, and Ross at least have all broken this oath. They are breaking the law and giving the American people the finger while they do it. Nobody is holding them accountable for their illegal acts. It's time for Congress, meaning the Democrats in the House, to do something about this. They can start by having federal marshals or the Sergeant At Arms go to Conway's home and detain her. Then she should be fined $100,000 per day for refusing to testify and placed in jail with $10 million bail for violating the Hatch Act.

Next is Mnuchin. Or we can start with the head of the IRS. Federal law requires that the president's tax returns be given to the Congress upon request. There are no ifs, ands, nor buts about this. It is the law. Hold him in contempt, tine him $100,000 per day until he complies.

The point is, ENOUGH of the lawless corruption. No Democrat should be in front of a camera or a microphone without first stating that Trump, Conway, Barr, Mnuchin, and Ross are totally corrupt and violating not only the law, but the Constitution AND THEIR OATH OF OFFICE.

It's got to stop and the Democrats have to do something about it.

Friday, April 26, 2019

Reading Diary Of The Mueller Report by Benjamin Wittes

I'm reading this outstanding article, he calls it a "reading diary", by Benjamin Wittes of the Lawfare Blog. It's outstanding stuff and I hope everyone here will read it as he analyzes each section of the report and interprets what it says (vs. what Barr says it says)
I'm adding some key passages in the comments, but do read it for yourself.

From Volume 1:

The genesis of the FBI investigation was a foreign government's intelligence agency's notification to the FBI that Padadopoulos had informed them that the "Trump Campaign had received indications from the Russian government that it could assist the Campaign through the anonymous release of information damaging to Democratic presidential candidate Hillary Clinton."

"Sorry, Devin Nunes. There's no mention of the Steele dossier."

"But no doubt the Trump folks were also particularly vulnerable to this sort of manipulation. While they weren’t active partners in this scheme, they were suckers."

"If the active measures section of the report is exonerating of Trump and his campaign, the section that follows it—the Russian hacking section—is not. It is much worse than is commonly understood for Trump."

"But here’s the thing: It wasn’t for lack of trying. Indeed, the Mueller report makes clear that Trump personally ordered an attempt to obtain Hillary Clinton’s emails; and people associated with the campaign pursued this believing they were dealing with Russian hackers. Trump also personally engaged in discussions about coordinating public relations strategy around WikiLeaks releases of hacked emails. At least one person associated with the campaign was in touch directly with the Guccifer 2.0 persona of the GRU. And Donald Trump Jr. was directly in touch with WikiLeaks itself—from whom he obtained a password to a hacked database. There are reasons none of these incidents amount to crimes—good reasons, in my view, in most cases, viable judgment calls in others. But the picture it all paints of the president’s conduct is anything but exonerating.

"This was not “no collusion.” It was Keystone Kollusion—and the incompetence of it is likely the reason no crime was committed."

Trump ordered that the "missing" Clinton emails be found and very likely believed that the Russians had them:

"The Trump campaign was seeking exactly the spoon-feeding it was accused of taking; it just couldn’t manage to find the right spoon, and it kept missing when it tried to put any spoons in its mouth."

(I love the way Wittes writes.)

"As the operation progressed, WikiLeaks handled the distribution, and both the campaign and the GRU dealt with WikiLeaks—and thus didn't have to deal directly with one another."

IOW "collusion" by proxy.

"In short, while this section does not describe a Trump campaign conspiracy in the Russian hacks, it does describe direct engagement between the GRU and Stone; it describes both the campaign and the GRU seeking to coordinate with WikiLeaks on the release of information; and it describes the campaign being eager to retrieve what turned out to be fictitious emails and its agents being willing to deal with Russian hackers to get them. The president personally was involved in these latter two episodes, Mueller reports.

It’s a remarkable story, and it's not a flattering one. If nobody ran afoul of the law, the likeliest explanation is the *dumbest of dumb luck.*"

"Russian Government Links to and Contacts with the Trump Campaign"

"This section comprises more than 100 pages—which gives you an idea of how much material there was to investigate regarding Russian contacts and links with the Trump campaign. It’s a he
ck of a read, but it’s a complicated one that tells a confusing story I’ll be working to understand for a long time. Mueller tells it through a legal lens; he’s a prosecutor, after all, looking to answer legal questions. But I found myself reading it through a very different lens—the lens of patriotism."

"So there you are, on the legal side. The evidence arising out of links or contacts isn’t all that close to establishing coordination in the sense that conspiracy law would recognize. But the volume of contacts, the lies and the open questions make it impossible to say that there’s no evidence of it—much less that there’s positive evidence falsifying it."

"what is the story these contacts tell if it’s not one of active coordination? They surely aren’t, in the aggregate, innocent. They aren’t normal business practice for a presidential campaign. When Mueller asks whether they constituted some sort of third avenue for Russian interference, he’s really asking, in the prosecutorial language available to him, what to make of them."

"[H]ere’s what I see in the story Mueller has told over these more-than-a-hundred pages.

"I see a group of people for whom partisan polarization wholly and completely defeated patriotism. I see a group of people so completely convinced that Hillary Cl
inton was the enemy that they were willing to make common cause with an actual adversary power at a time it was attacking their country to defeat her. To me, it matters whether the conduct violated the law only in the pedestrian sense of determining the available remedies for it—and in guiding whether and how we might have to change our laws to prevent such conduct in the future. To me, the salient facts from this section are the following:

* Trump was willing to do business with and seek favors from the Russian state even as it was attacking the country for whose presidency he was running—and he was willing to lie about doing so.

*His campaign’s senior leadership was eager to benefit from that country’s efforts to dish dirt on his opponent and was willing to meet with people it knew to represent that country in order to receive such information.

*Multiple campaign staff and advisers engaged in conduct in relation to that country that legitimately gave rise to counterintelligence scrutiny.

*Multiple campaign staff and advisers lied to investigators about their dealings with Russian officials or intermediaries to such officials in a fashion that gave rise to criminal charges or other actions.

I don’t know the right word for this pattern of conduct. It’s not “collusion,” though it may involve some measure of collusion. It’s not “coordination” or “conspiracy.” But in Clinton, Democrats, and liberals, the Trump campaign saw a sufficiently irreconcilable enemy that it looked at Vladimir Putin and saw a partner. To my mind, anyway, that’s the story Mueller told in this section. It may not be a crime, but it is a very deep betrayal."

Repeating: "But in Clinton, Democrats, and liberals, the Trump campaign saw a sufficiently irreconcilable enemy that it looked at Vladimir Putin and saw a partner."

This constitutes Wittes' notes of Volume I which is basically Russian interference and the Trump campaigns willingness to accept it. Volume II deals with the case of obstruction which I think is so well documented elsewhere as to let me spend my time on more pressing least for the time being. :

OK, I admit it. I can't help myself. Volume II

"Mueller says explicitly that “we conducted a thorough factual investigation in order to preserve the evidence when memories were fresh and documentary materials were available” "

"It is important to read the second point in the context of the first one. Together they say something like the following: We can’t indict Trump now and are thus deferring to Congress in the short term and creating a record for later prosecutorial assessment when the president leaves office. In other words, Mueller is not declining to make a traditional prosecutorial judgment; he is declining to make a traditional prosecutorial judgment now and leaving that task for someone else to do later."

"By contrast, as a matter of impeachment, this is an easy and overwhelming case—and it’s very simple indeed. The president of the United States, seven days after taking office, demanded loyalty from his FBI director. Shortly thereafter, he isolated Comey in order to ask that he drop a sensitive FBI investigation in which he had a personal interest. He did this knowingly and intending to interfere with the investigation of Russian interference in the election and contacts between his transition team and Russian officials. It is a quintessential abuse of power, and while there may be viable technical defenses against a criminal charge, there simply is no plausible way to understand it as a good-faith exercise of presidential power."

"The point is that the evidence here is mixed, and the president would have a viable defense that he was acting within his lawful power and not to impede the investigation but out of anger that Comey would not clarify its focus publicly with respect to him. If a criminal case were ever to be contemplated against Trump for obstruction, I suspect the Comey firing would not lie at its core but would feature in some broader obstructive pattern of conduct.

"These distinctions may or may not be important as a matter of criminal law. As a matter of impeachment, they are utterly unimportant. I don’t know how anyone can read this section and regard the conduct described in it as meriting any kind of congressional toleration. It describes a frank abuse of power: a sustained demand for a wholly self-interested investigative outcome, a willingness to disrupt a critical institution to get that outcome and to retaliate against an official who would not deliver it, a willingness to set the entire apparatus of the White House to lying about the reason for the action, and the recruitment of senior Justice Department officials to create a pretextual paper trail to support it. I believed this was impeachable conduct at the time. The Mueller report reinforces that belief.

"Indeed, while the question of the prudential wisdom of impeachment politically may be a hard one, I don’t think the impeachability of the conduct described in this section is even a close call. This is heartland impeachment material—the sort of conduct the impeachment clauses were written to address. And any member of Congress disinclined to support impeachment needs to grapple with the following question: ***If you take the position, either overtly or by averting your eyes, that this conduct is okay in a president’s relationship with the law enforcement apparatus of the country, what isn’t okay?*** What would a president have to do before you would say that political consequences aside, his conduct is intolerable morally and institutionally unacceptable to me as a member of a coordinate branch of government with ultimate oversight over presidential conduct?"

Monday, February 18, 2019

What you (and especially your Trump supporting friends and family) should know and what you should ask yourself about Russia and Trump

Russia is a criminal enterprise. The Russian government does not operate for the benefit of its people but for the purpose of accumulating great wealth for its elite, the oligarchs.
Russia is the name of what’s left of the country that was formerly the Union of Soviet Socialist Republics, or the USSR. This was a communist regime and the second most powerful country in the world. They strove for dominance over Eastern Europe, Eurasia, and elsewhere through military power and police state tactics. The USSR was the antithesis of US values of peace, liberty, and free enterprise. The US and the USSR were adversaries. Their only common interest was not to be blown up in a nuclear war.
The fall of the Soviet Union in 1989-1990 was a great event for many countries that had been under the domination of the Soviets, and on the surface appeared to be a relief to Americans for the promise of an end to the Cold War or at least a reduction of the threat of nuclear holocaust. However, to the politicians who rose to power after the fall, the “new” Russia presented a harsh reality as well as incredible opportunities. The reality was that the former Soviet economy was not a powerhouse among nations, and its military might was not respected as a world-domineering threat. The opportunities were that all of the means of production, natural resources, and financial institutions that had belonged to the citizens of the Soviet Union were “up for grabs”. Those in power and their friends essentially assumed control of the people’s national assets for the benefit of themselves and thus became incredibly wealthy. These powerful people became the Russian Oligarchs, men who raided their country and stole its wealth for their personal benefit. Their actions were criminal, and Russia evolved from a socialist state to a kleptocracy, a criminal enterprise. The head of that criminal enterprise is Vladimir Putin. Putin and the US continue to share one and only one common interest, which is not getting blown up in a nuclear war. This is true for most Americans, but not all Americans.
This is a basic truth that must be recognized in any discussion of current politics and foreign affairs.
How do the US and its allies keep Russia’s military and political aggressions in check?
While Russia and Putin’s motives center around money and the accumulation of wealth, these motives go hand in hand with the desire to return the country of Russia to the power and geopolitical dominance that had defined its place in the world order during the Soviet era. This desire was manifested in aggressions against the former Soviet republic of Georgia and later against Ukraine and Crimea. There are basically three possible approaches to countering actions by an adversary: war, diplomacy, or sanctions. Of course diplomacy is the most desired approach, war is the least, and sanctions are useful when diplomacy fails and war is to be avoided. The response to these aggressions by the US and its allies was to impose strict sanctions against Russia intended to severely punish its economy and restrict the criminal activities of its oligarchs. The sanctions included freezing the oligarchs’ assets held in Western countries and banning their travel to and within these countries. In short, the sanctions kept the oligarchs away from their money, billions upon billions of dollars that they could not touch. It has been estimated that Putin alone has as much as $230 billion of dollars frozen by sanctions.
The sanctions have been put in place by the US and its allies to put enough “hurt” on Russia that they will abandon their aggressive tactics against other countries. And those sanctions are hurting the oligarchs and are keeping Russia’s power in check. Because of this, Putin and his oligarchs want more than anything to get these sanctions lifted so that they can get their hands on their money and resume their criminal activities.
In the US sanctions against Russia have been imposed by the government and widely supported on a bipartisan basis in the Congress and in the Executive Branch. Bush and Obama imposed sanctions, and Hillary Clinton, Obama’s Secretary Of State, of course strongly supported the imposition and continuation of sanctions against Putin and the oligarchs.
This is a very important point. Presidential candidate Hillary Clinton was a strong proponent of keeping Vladimir Putin and his mob away from their money.
Donald Trump maintains that it was Hillary Clinton who “colluded” with Russia in the 2016 presidential campaign, and that highly placed employees of the FBI aided and abetted that collusion for the benefit of Clinton and for the purpose of her being elected as the next US president.
This begs the question. One, why would Putin and those who worked under him assist the candidate who strongly supported the economically crippling sanctions that were keeping them away from their money and who would surely continue or expand such sanctions once she became president? And two, why would a presidential candidate who was highly favored to win the presidential election up until the final few weeks of the campaign seek assistance from a foreign adversary who she sought to keep in check and who she had every reason to suspect was vehemently opposed to her likely victory?
Next up: Why would Putin want to help Trump win the US presidency, and why would Trump seek or at least accept that help?

Saturday, August 25, 2018

Restoring "Normal Order"

I've been thinking about this for a bit and I've come up with a plan to reestablish some sanity and comity to the process of "staffing" the US Judicial System. The determination of the composition of the Judicial Branch is perhaps the highest prize in politics today, and we will continue to have election victories at ANY cost and an ineffectual Congress that shirks its checks and balances duties far into the future. Really, it all boils down to abortion, doesn't it? So thoughts on this?

1. The Senate Republicans and Democrats, regardless of who has the majority, must agree that the appointment of judges must be reasonable, fair, and equitable. McConnell has made clear that the president is a minor player in the process, so the Senate will be the determining factor as to who takes a seat on ANY bench.

2. The Senate rejects the Kavanaugh nomination outright and consents to the Merrick Garland nomination. Conservatives get their Gorsuch and Democrats get a very moderately liberal justice. But Garland is made senior to Gorsuch based on when he should have been confirmed.

3. The Senate agrees to fill current open seats at any federal level as follows: Seats will be filled five at a time to begin with. The power to nominate will rotate between the parties regardless of who has the majority or the White House. First the GOP nominates 5 jurists. The Senate has 90 days to vet and confirm. The non-nominating party gets one preemptory challenge per seat. Then the Democrats get the next 5 seats, and the same rules apply. For each 90 day cycle, the majority party gets one extra seat nomination and the president gets one extra seat nomination. In theory then, there can be as many as seven confirmations in a cycle, but the minority caucus, when the majority has the White House, will get at least 5 confirmations.

4. Once all vacancies are filled the process will return to "regular order" INCLUDING the ability for the minority to filibuster. The purpose of the filibuster is to prevent the seating of radical judges and force the president and the majority caucus to nominate and confirm moderately conservative or moderately liberal judges.

Thursday, August 09, 2018

The Legacy Of Donald J. Trump

Russia is not our enemy in the classic, war-time sense, and therefore treason does not apply. Russia IS however our adversary in the same sense that the Mafia is the adversary of the FBI. Russia is a criminal state, run by criminals, and led by the biggest criminal of them all. Russia is no longer motivated by ideology; it is motivated by greed.

Trump has NEVER been motivated by ideology; he is motivated by greed--in the form of money but also in the form of fame and flattery.

What we have here is not "treason". What we have here is corruption, corruption at a level never before seen in the United States. Trump has been corrupt probably since he had money to work with. The list of his corrupt dealings is long and legendary, and much of it has been not only public, but documented. He's been working with Russians for decades. It's a symbiotic relationship wherein he needs them as a source of cash to finance his deals, and they need him to launder the tremendous amounts of cash the Russian mob has stolen from the Russian state and others.

In my opinion it is likely that Trump never thought of "treason" or "collusion" or even "conspiracy". I think it never occurred to him that accepting help from Russia to win the election was illegal, much less wrong. It was simply a means to his ends, getting richer and getting praise. It never occurred to him to refuse the Russians. It never occurred to him to report their solicitations to the FBI. And in the end, if Trump loses his presidency, it may well be not because of treason, but because of the seemingly lesser crimes of failing to report illegal activities that he was aware of AND covering up that failure.

Trump could have continued his sweet life of golden toilet seats eponymous brands and airplanes, models and prostitutes, spying on naked teens, grabbing pussy, using Russian money, and cheating the lesser minions out of their money until he keeled over from a Big Mac heart attack, and nobody would have thought any less of him than they have after years of reading about him in the scandal rags or watching him on TV. But he made the mistake of reaching too far, lusting for the fame of the US presidency, and now all the history, known and previously unknown, will eventually paint the portrait of a man corrupt inside and out, and THAT, if there is justice in this world, will become the lasting legacy of Donald J. Trump.