PATRIOTIC SONGS  -- AMERICA'S GREATEST HITS

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."

                    -- Declaration of Independence, 1776

"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do hereby ordain and establish this Constitution for the United States of America."

                    -- Constitution, 1787

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or of abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble. and to petition the government for the redress of grievances."

                    -- First Amendment, 1791

"Let us restore to social intercourse that harmony and affection without which liberty and even life itself are but dreary things . . . Every difference of opinion is not a difference of principle.  We have called by different names brethren of the same principle.  We are all Republicans. We are all Federalists.  If there be any among us who wish to dissolve this Union or to change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left to combat it."

                    -- Jefferson's First Inaugural, 1801

"I had rather be right than be President."

                    -- Henry Clay, 1838, who, in attempting to thread

                        the needle between abolition and slavery,turned out

                        to be neither.

"Do I contradict myself? Very well then I contradict myself, (I am large, I contain multitudes.)"

                        -- Whitman, in Song of Myself, 1855

"If there is no struggle there is no progress.  Those who profess to favor freedom, and yet deprecate agitation, are men who want crops without plowing up the ground . . . This struggle may be a moral one; or it may be a physical one; or it may be both moral and physical; but it must be a struggle. Power concedes nothing without a demand. It never did and it never will."

                        -- Frederick Douglass, 1857

"Four score and seven years ago our fathers brought forth on this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal. Now we are engaged in a great civil war, testing whether that nation, or any nation so conceived and so dedicated, can long endure. We are met on a great battle-filed of that war.  We have come to dedicate a portion of that field, as a final resting place for those who here gave their lives that that nation might live . . . But in a larger sense, we can not dedicate -- we can not consecrate -- we can not hallow -- this ground. The brave men, living and dead, who struggled here, have consecrated it, far above our poor power to add or detract . . . It is for us the living, rather, to . . . here highly resolve that these dead shall not have died in vain -- that this nation, under God, shall have a new birth of freedom -- and that government of the people, by the people, for the people, shall not perish from earth."

                        -- Lincoln, Gettysburg Address, 1863

"My Captain does not answer, his lips are pale and still,

My father does not feel my arm, he has no pulse nor will,

The ship is anchor'd safe and sound, its voyage closed and done,

From fearful trip the victor ship comes in with object won;

        Exult O shores, and ring O bells!

            But I with mournful tread,

                Walk the deck my Captain lies,

                    Fallen cold and dead."

                        -- Whitman, O Captain! My Captain, 1865

"Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."

                        -- Thirteenth Amendment, 1865

"All Persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

                        -- Fourteenth Amendment, 1868

"The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude."

                        -- Fifteenth Amendment, 1870

"The life of the law has not been logic; it has been experience . . . The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics."

                        -- Oliver Wendell Holmes, Jr., 1881

"Taxes are the price we pay for a civilized society."

                        -- Oliver Wendell Holmes, Jr., 1904

"It is not the critic who counts; not the man who points out how the strong man stumbles, or where the doer of deeds could have done them better. The credit belongs to the man who is actually in the arena, whose face is marred by dust and sweat and blood; who strives valiantly; who errs, who comes up short again and again, because there is no effort without error and shortcoming; but who does actually strive to do the deeds; who knows the great enthusiasms, the great devotions; who spends himself in a worthy cause; who at the best knows in the end the triumph of high achievement, and who at the worst, if he fails, at least fails while daring greatly, so that his place shall never be with those cold and timid souls who neither know victory nor defeat."

                        -- Theodore Roosevelt, 1910

"The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex."

                        -- Nineteenth Amendment, 1920

"This is pre-eminently the time to speak the truth, the whole truth, frankly and boldly. Nor need we shrink from honestly facing conditions in our country today. This great nation will endure as it has endured, will revive and prosper. So first of all let me assert my firm belief that the only thing we have to fear is fear itself -- nameless, unreasoning, unjustified terror which paralyzes needed efforts to turn retreat into advance."

                        -- Franklin D. Roosevelt, 1933

"We conclude that, in the field of public education, the doctrine of  'separate but equal' has no place. Separate educational facilities are inherently unequal."

                        -- Earl Warren, 1954

"Ask not what your country can do for you -- ask what you can do for your country."

                        -- John F. Kennedy, 1961

"I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character."

                        -- Martin Luther King, Jr., 1963

"Freedom is indivisible, and when one man is enslaved, all are not free. When all are free, then we can look forward to that day when this city will be joined as one and  this country and this great continent of Europe in a peaceful and hopeful globe. When that day finally comes, as it will, the people of West Berlin can take sober satisfaction in the fact that they were in the front lines for almost two decades. All free men, wherever they may live, are citizens of Berlin. And, therefore, as a free man, I take pride in the words 'Ich bin ein Berliner.'"

                        -- John F. Kennedy, 1963

"General Secretary Gorbachev, if you seek peace, if you seek prosperity for the Soviet Union and Eastern Europe, if you seek liberalization: Come here to this gate! Mr. Gorbachev, open this gate! Mr. Gorbachev, tear down this wall."

                        -- Ronald Reagan, 1987

"I can hear you! The rest of the world hears you! And the people who knocked down these buildings will hear all of us soon!"

                        -- George W. Bush, 2001

"I stand here today, grateful for the diversity of my heritage, aware that my parents' dreams live on in my precious daughters. I stand here knowing that my story is part of the larger American story, that I owe a debt to all those who came before me, and that, in no other country on earth, is my story even possible."

                       -- Barack Obama, 2004

"A century ago, President Theodore Roosevelt's invitation to Booker T. Washington to visit -- to dine at the White House -- was taken as an outrage in many quarters. America today is a world away from the cruel and prideful bigotry of that time. There is no better evidence of this than the election of an African-American to the presidency of the United States . . . Senator Obama has achieved a great thing for himself and for his country. I applaud him for it, and offer my sincere sympathy that his beloved grandmother did not live to see this day -- though our faith assures us she is at rest in the presence of her Creator and so very proud of the good man she helped raise."

                        -- John McCain, 2008

"This is America's day. This is democracy's day. A day of history and hope. Of renewal and resolve.  Through a crucible for the ages America has been tested anew and America has risen to the challenge. Today we celebrate the triumph not of a candidate, but of a cause, the cause of democracy. The will of the people has been heard and the will of the people has been heeded."

                        -- Joseph R. Biden, 2021.

"For there is always light if only we are brave enough to see it.
If only we are brave enough to be it."

                        -- Amanda Gordon, 2021

THE GOVERNMENT SHUTDOWN

The federal government shut down on October 1.

It is now October 9.

The government is still shutdown.

No one knows when it will re-open. 

Or if that really matters.

The Republican Party controls the federal government.  It has majorities in the House and the Senate and Trump in the White House. Six of the nine Justices on the Supreme Court are Republican.  Three of them (Gorsuch, Kavanaugh and Coney-Barrett) were appointed by Trump. Two (Roberts and Alito) were appointed by Bush the Younger and one (Clarence Thomas) by Bush the Elder.

The Republican Party these days has two, and only two, functions.

The first is to agree with and then echo whatever rants the president spits out at his incoherent rallies, press availabilities or made-for-TV cabinet meetings.  This obligation also applies to any posts he puts up on Truth Social, the social media platform Trump owns and controls and created after he was de-platformed in January 2021 for sponsoring an attempted (and violent) coup.

The second is to either absolutely shutter or gradually defund the government to the point where economic oligarchy, mass deportation and some version of national defense remains but everything else (Social Security, Medicare, Medicaid, Obamacare, the Department of Education, an apolitical Justice Department, FEMA, independent colleges and universities, the CDC, public media, civil rights, soft-power foreign aid in the form of USAID or Voice of America, and any federally funded programs or policies in so-called blue states) either ends or gradually evaporates.

The marriage of these two functions has turned the GOP into an authoritarian and anti-democratic bulwark.

In both the literal and figurative sense of that term.

Literally . . .

The GOP is now set up as a rampart against any institution or individual that might oppose Trump in any way whatsoever.

And figuratively . . . 

It supports and enacts policies that either gratify Trump's ego or empower its own historic goal of reducing government to what it was before Franklin Roosevelt's New Deal, Earl Warren's Supreme Court, and Lyndon Johnson's Great Society.

So long as that literal rampart and figurative gratification is preserved, Trump is more than willing to allow the reduction to proceed apace.  

He is also willing to do this regardless of the historic consequences to either the country or himself, both of which will be long term. In fact, the length of the term is probably the basis for his ennui. 

He is a creature of the immediate.  

His attention span is limited.  

So is his vocabulary. 

Addicted to TV and twitter, he does not read.  Addicted to insult, he does not argue. Addicted to lies, he does not perceive. Addicted to himself, he is disengaged from the real world. So long as his Cabinet and his media praise him, the former of which has been expressly designed to do so, the latter of which (like the GOP itself) has come to that condition gradually, he will not notice or not care about any decline, either to the country or himself. Indeed, it is how he lives with his abysmal approval numbers.

Into this world has now been parachuted  a government shut down.

The function of the government is to create law and to enforce it.  Shutdowns impede these activities but do not entirely stop them. Thousands of federal employees are furloughed but those deemed "essential" must work without pay. This includes the military and federal prosecutors. Congress cannot shutdown (and its Representatives and Senators are paid) but some staff are furloughed and others are deemed essential. Permanently funded entitlements (e.g., for Social Security, Medicare, VA benefits) are paid but some ancillary services (e.g., benefit verification requests, earnings records corrections) can be delayed.

Trump's response to all of this has been . . .

A bit of a yawn.

His OMB Director, Russell Vought (of Project 2025 fame), threatened mass lay-offs before the shutdown took effect. These, however, had more to do with the administration's claim that it was entitled to do so than any additional basis that would exist on account of a shutdown. Vought issued a memo telling agencies to "consider Reduction in Force notices" to federal employees for whom funding would not exist on October 1 and whose work "is not consistent with the President's priorities."  Ordinarily, the absence of funding would lead to furlough (and a return to work with back pay once the shutdown ended) and "the President's priorities" would be irrelevant. As of now, no Reduction in Force notices have been sent.

Beyond this threat, Trump's only other reaction to the shutdown has been to promise the military it will receive back pay and threaten non-military furloughed employees with the prospect they will not.  Since the promise is statutorily mandated and the threat requires new legislation before it can ever be implemented, both amount to idle chatter.  In the meantime, Trump's assault on the rule of law continues via the Comey prosecution, the Letitia James/Adam Schiff/John Bolton "investigations", the FBI's apparent acceptance of the bribe paid to ICE's Tom Homan, the militarized attacks on Democratic cities, and Pam Bondi's performative insults and deflections in the face of Senate inquiry about any of the above.

Which, of course, is why the shutdown is irrelevant to Trump.

For him, his Apprentice-like presidency is about creating non-existent realities, attacking enemies, and insulting opponents.

The shutdown stops none of this.

For the Democrats, however, a whole different set of objectives exist.

They actually believe in government.

And because they do, they are generally opposed to shutting it down.

This time around, however, things are different.

For two reasons.  

First, Trump's just signed Big Beautiful Bill ends, as of January 1, 2026, the Obamacare premium tax credits passed during the Biden Administration.  As a consequence, premiums for plans available under the Affordable Care Act are predicted to rise by as much as 75% in 2026.   And for those who actually receive the subsidies, their premiums will more than double.  As of now, four states have actually sent out notice increases and all are expected to follow.

The Democrats are united in believing the shutdown provides them with the leverage needed to force Congress and Trump to restore those credits.  In response, the GOP claims it will negotiate on all health care issues in the ordinary course but that, in the meantime, the continuing resolution already passed by the House should be accepted and the government should re-open.  

The Democrats are refusing this deal.

Because . . .

And this is the second reason this shutdown is different . . .

The Democrats do not believe Trump or the GOP will honor any promise to negotiate.

Trump's Big Beautiful Bill was passed by the House and Senate without a single Democratic vote.  There was no negotiation, not even the hint of it. In the House, where the majority controls what can be brought to the floor, the only difficulty the GOP encountered was from a handful of far-right members who thought the bill did not cut enough but who, as has now become the case on any close vote, ultimately bowed to Trump's insistence that it pass (and his threatened blowback if it didn't).  And in the Senate, the bill passed by a 51-50 vote (with Vance breaking the tie after three Republicans opposed it) because it was brought up under budget reconciliation procedures that are not subject to the filibuster rule. 

The only thing that could break this impasse is an issue the GOP thinks might imperil its hold on Congress in the 2026 mid-terms.

The Democrats think health care is that issue.

They also think they are on pretty solid ground in believing that neither Trump nor the Republicans in Congress will negotiate to restore premium tax credit support for Obamacare.

And so far . . .

The polls support them.

Sort of.

Brad Bannon is a Democratic consultant (full disclosure: he is a friend and was the pollster I hired in my runs for Congress in 1992 and 1994).  In an October 8 article in The Hill he wrote "A new national survey of adult Americans by CBS News and YouGov.com indicates that congressional Democrats have an edge in the showdown over the federal government shutdown . . . Four out of every ten  . . . people blame President Trump for the closure and three in ten adults fault Democrats . . . [O]ne out of every three spread the blame widely."

"Jobs and inflation," he continues, "are the major concerns on the public worry-list, and the mischief executive dropped the ball. Most Americans believe Trump's policies have hurt them financially. Nine months into Trump's second term, medical costs are still rising and Democrats have wisely framed this contest as an opportunity to keep these costs from growing even higher.  The Democrats have put Trump and his MAGA acolytes on the spot over a year before the midterms."

"The CBS survey illustrates," says Bannon, "each party's soft spots.  The public is most likely to fault Democrats for being weak and Republicans for being extreme. If the Democrats stand firm, they will prove to the public that they do have the strength of purpose to run the nation."  On the other hand, he notes, "The Republican insistence on tax breaks at all costs demonstrates . . . rigid attachment to a radical economic ideology which fattens the rich and starves middle class and poor Americans."

"The shutdown," he concludes, "is now in extra innings.  Democrats must stand up and be counted to win affordable care for all Americans.  Republicans have fought tooth and nail from the birth of the programs to kill off Social Security, Medicare, Medicaid and the Affordable Care Act.  If Trump wins this budget battle, the Affordable Care Act and Medicaid are down for the count and the two other vital programs will be next on the MAGA hit list."

Elections are won in the middle.

Trump is more distrusted and more under-water than any other modern president. He also has a stronger base of diehards supporting him than any other modern president. Bannon's essential argument is that those in the middle, those who decide elections, are the key to the 2026 mid-terms.  

Bannon thinks those folks are worried about "jobs and inflation" but believe Democrats are "weak".

If he's right, shutdown was really the only available choice for Democrats.

As the party in the minority faced with an opposition that will not negotiate and does not compromise, and a president who, in addition to doing neither, is hell bent on preserving his authoritarian power play, the Democrats have limited options.  The courts are one of them and at the lower levels have been successful in temporarily stopping Trump's militarized attacks on Democratic cities, unilateral funding rescissions, and scattershot liquidation of the federal work force; the Supreme Court, however, has turned back many of those efforts and delayed others. In this environment, there is not much any opponent can do to demonstrate strength.

But there is one thing the Democrats can do

They can stop pretending the system is working.

The shutdown is a way, probably the only way at this point, to do so.

For Democrats, it is unnatural.

For decades they have been the party of "Yes, we can!"

Now they must be the party of . . .

"No, we won't!"

JAMES COMEY

I am 69 years old.

I graduated from law school in January 1982, and after completing a federal judicial clerkship, passed the California bar exam and practiced there from 1983 to 1986. In 1986, I left California to become an Assistant US Attorney in New Hampshire, and in December 1987, I left that job and returned to New York, where I have practiced law (and until very recently lived) ever since.

In March I moved to Southbury, Connecticut.

And because I wanted to practice law there, and not only  in New York, I applied to be admitted to the Connecticut bar. 

Like many (but not all) states, Connecticut allows lawyers licensed in other states to apply for admission in theirs without taking the bar exam. Unlike many other states, however, Connecticut requires those applicants to have taken and passed the Multistate Professional Responsibility Exam (MPRE) within five years of their application.

The last time I took the MPRE was in 1983.

So this summer . . .

I spent a good chunk of time studying the American Bar Association's (ABA's)  Model Rules of Professional Conduct before taking the test a month ago.  The Model Rules are the ABA's version of the rules of ethics that should govern lawyers nationwide and each state has adopted a version of it as their own.  The MPRE tests on those Rules and on the law of ethics and professional responsibility that governs members of the legal profession generally.

Earlier this week, I learned that I passed the test and would shortly become not just a California and New York lawyer but, at the tender age of 69, a Connecticut one as well.

On Monday, President Trump appointed Lindsey Halligan as the interim US Attorney for the Eastern District of Virginia.  Halligan is a young (36) lawyer. At the time of her appointment, she was working in the White House, where her duties included investigating the Smithsonian to insure, as she put it, that the museum and its exhibits were properly "align[ed] with the President's directive to celebrate American exceptionalism, remove divisive or partisan narratives, and restore confidence in our shared cultural institutions." She had previously been an insurance lawyer  and represented Trump personally in Florida.  She has never been a prosecutor.

On Thursday, a federal grand jury in the Eastern District of Virginia indicted former FBI Director James Comey for allegedly making false statements to the US Senate almost five years ago.  The indictment alleges Comey falsely stated he had not "‘authorized someone else at the FBI to be an anonymous source in news reports' regarding the FBI's [then] investigation" of an unnamed person. A second count alleges this act obstructed justice.

Halligan was appointed this past Monday because her predecessor had resigned the Friday before. That predecessor was Erik Siebert, who Trump named to the post in January. Siebert, a career prosecutor with over fifteen years experience as an Assistant US Attorney in the office, had refused to indict another Trump target, NY Attorney General Letitia James, and attorneys in his office had also concluded there was insufficient evidence to indict Comey. Though Siebert resigned the office amidst pressure from administration officials on the James case, Trump on Saturday claimed to have fired him. On the same day, Trump told his Attorney General that the absence of criminal charges against James, Comey and California Senator Adam Schiff (yet another Trump target) "was killing our reputation and credibility" and could not be "delay[ed] any longer."

Trump was right about one thing.

Delay, at least in the Comey case, was his enemy.

The statute of limitations on the false statement charge was set to run on September 30, 2025.

So . . .

He appointed Halligan on Monday.

And she did what Trump wanted done on Thursday.

Under the Model Rules of Professional Conduct, Rule 3.8(a), a prosecutor must "refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause."  Section 9-27.200 of the US Department of Justice's Justice Manual imposes the same requirement on federal prosecutors. Though an indictment generally stands for the proposition that the grand jury thought there was probable cause, there are serious questions in this case regarding what Hallligan knew or should have known and what was presented to the grand jury. 

According to reporting from Alan Feuer, Jonah E. Bromwich and Maggie Haberman in The New York Times, Halligan decided to seek an indictment "despite an energetic effort by career professionals under her to dissuade her from bringing charges." This suggests that attorneys in her office with substantial experience either did not think there was probable cause or that, if there was, did not believe there was sufficient evidence to convince a jury of guilt beyond a reasonable doubt.  Halligan, however, who is not a career prosecutor, decided to disregard this advice. "In a highly unusual move for a top federal prosecutor," as the Times also reported, she also decided to "personally present[] the case against Mr. Comey to the grand jury".

As a matter of public record, there is substantial evidence that Comey did not make the false statement alleged in Thursday's indictment.  

The government's indictment claims that Comey lied to the Senate on September 30, 2020 when he supposedly told Republican Sen. Ted Cruz that he had not "'authorized someone else at the FBI to be an anonymous source in any news reports' regarding an FBI investigation concerning” an unnamed person. In May 2017, Comey testified to the Senate that he had never anonymously leaked information to the news media about "the Trump investigation or the Clinton investigation" (the former apparently relating to the FBI's investigation into Russian contacts with the Trump campaign, and the latter to the agency's investigation of Hillary Clinton's emails), and that he never authorized someone else to do so. In September 2020, in response to questions from Cruz claiming Comey’s 2017 testimony conflicted with public statements from the FBI's former Deputy Director Andrew McCabe that he, McCabe had “leaked information to the Wall Street Journal and that you were directly aware of it and directly authorized it”, Comey testified "I can only speak to my testimony" and "I stand by the testimony . . . that I gave in May 2017." As to Mr. McCabe's claims, Comey stated "Again, I'm not going to characterize Andy's testimony but mine is the same today."

The biggest problem with the government’s indictment is that McCabe himself has refuted it.

On February 17, 2019, 60 Minutes aired an interview with McCabe. In that interview, McCabe recounted a conversation he had with Comey after the leak. In that conversation, Comey said he believed McCabe was not the source of the leak and McCabe did not disabuse him of that view. "I should have corrected it," McCabe told the interviewer, "I should have spoken up and said, 'Wait a minute, that's not true'" and told Comey that he, McCabe, was responsible for the leak. 

Comey's September 2020 testimony to Cruz was thus entirely truthful. 

At the time of his May 2017 testimony, he did not even know -- according to McCabe himself -- that McCabe had been the so-called anonymous source and could not have authorized McCabe to do something he had no knowledge McCabe had done. And as Robert Hubbell, a Los Angeles attorney and the author of Today's Edition Newsletter, has noted: "By failing to speak up to admit that he leaked the information to the WSJ, McCabe allowed Comey to labor under a mistaken belief about the nature and source of the leak . . . when Comey testified to the Senate." As a result, Hubbell explained,  "No jury will convict Comey of intentionally lying to the Senate. Indeed , no judge should allow the case to get to the jury after the prosecution rests. There is simply no credible evidence to support the charge."

It's unclear whether Lindsey Halligan made any of this material known to the grand jury that just indicted Comey.  Nor do we know whether she disclosed the DOJ Inspector General's February 2018 Report to the grand jury.  That Report specifically concluded, as Hubbell's Newsletter also noted, that McCabe had not told the truth (i) "when he told Comey . . . that McCabe had not authorized the disclosure and did not know who did"; (ii) when he told "FBI agents under oath that he had not authorized the disclosure"; and (iii) when he told the Inspector General "that he told Comey on October 31, 2016, that he had authorized disclosure to the WSJ."

Under these circumstances, it is difficult to conclude that Halligan had probable cause to indict Comey.  The claim that Comey's authorization denial in his September 2020 testimony -- where Cruz confronted him with his prior statements and McCabe's contrary assertions --  is false depends on his May 2017 testimony being false since all Comey said in 2020 was that he stood by what he said in 2017. And that May 2017 testimony can make the September 2020 testimony false only if McCabe was lying to CBS but telling the truth to the Inspector General. Critically, if the government is now claiming Comey lied to the Senate in 2020 because he had authorized a leak through someone other than McCabe, the 2020 testimony is beside the point (and certainly not false as to that claim) because all of what Comey said to Cruz in 2020 related to a supposed conflict between Comey and McCabe and Comey's adherence to his 2017 testimony was responsive to that asserted conflict.  Cruz never asked him if he had authorized a leak through anyone else and he never said he had or had not. 

Apart from these more or less disqualifying facts is the reality that this prosecution, unlike those that were initiated against Trump in 2023 and 2024, was obviously ordered or at the very least aggressively demanded by Trump himself, and that the President, again in contrast to the proceedings against him, is repeatedly demeaning Comey and characterizing him in ways designed to maximize public opposition and promote a guilty verdict. Trump has called Comey "corrupt", "sick", a "liar", a "dirty cop" and a "bad person" who "did terrible things at the FBI".  He admitted wanting to get rid of the US Attorney, Siebert, who was refusing to indict Comey, and he openly pressured Attorney General Bondi to have the DOJ act against Comey because time was running out. In replacing Siebert, he appointed as US Attorney a lawyer, Halligan, who had previously represented him and whose loyalty he expected to result, as it has, in Comey’s indictment, and who did so notwithstanding professional views, and there were many, opposing that course given the woefully insufficient evidence for the alleged crime.

Nothing like this happened between 2021 and early 2025 when Biden was President.

And the  likelihood that either Halligan or the Attorney General ever tried to stop Trump from interfering or from publicly demeaning Comey, is . . .

To give understatement new meaning . . .

Remote.

The ABA’s Rule 3.8 requiring probable cause is followed by comments. 

In the first comment to that Rule, the ABA states that "A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice, [and] that guilt is decided upon the basis of sufficient evidence." Model Rule 8.4 makes it "professional misconduct for a lawyer . . . to violate or attempt to violate the Rules of Professional Conduct, knowingly assist another to do so, or do so through the acts of another."  The first comment to Rule 3.8 also notes that "applicable law may require other measures by the prosecutor and knowing disregard of those obligations or a systematic abuse of prosecutorial discretion could constitute a violation of Rule 8.4". 

Among those obligations is the duty also set forth in Rule 3.8 to "refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent . . . other persons . . . associated with the prosecutor . . . from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule." Rule 3.6 precludes a lawyer investigating or litigating a matter from making "extrajudicial statements that  . . . will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter."  

Maybe I am not the only lawyer who should have been boning up on their knowledge of the Rules of Professional Conduct this summer.

SINCE HE HAS A SLOGAN BUT NO SOLUTIONS . . .
HERE ARE TWENTY  IDEAS THAT ACTUALLY WOULD MAKE AMERICA GREAT . . . AGAIN

1.  mRNA vaccines.

2.  Warp speed clean cement.

3.  Warp speed alternative energy (solar, wind, fusion).

4.   Warp speed carbon capture.

5.  Warp speed nationwide high speed rail.

6.  Warp speed 3-D printed housing.

7.   Repeal the Second Amendment.

8.   Universal mail-in voting.

9.   Independent redistricting commissions to set lines in every state.

10.  Repeal the Trump tax cuts. 

11.  Free public college or trade school for all.    

12.  Universal child care tax credit. 

13.  Universal pre-K. 

14.  Fire RFK, Jr. (and then recreate the CDC, rehire the fired vaccine specialists, refund the NIH and repeal the Medicaid cuts).

15.  Fire Tom Homan (and then reform the immigration laws to provide a path to citizenship, guarantee asylum hearings, retain high skilled immigrant college grads, forbid immigration court arrests, abolish ICE and reconstruct a professional enforcement force that identifies itself, enforces the law and respects human rights).

16.  Expand the Supreme Court (and then stagger term limits so that each new president appoints at least two justices, with required votes on nominees within six months of any nomination).

17.  Overturn or adopt Constitutional amendments to repeal Citizens United and United States v. Trump.

18.  Preserve social security by requiring additional payroll tax payments on all incomes in excess of $1 million.

19.  Checkmate China and Russia by merging NATO and ANZUS and supporting Ukraine. 

20.  Amend Article I, Section 3, Clause 6 of the Constitution to lower the threshold to convict a president on any articles of impeachment to three-fifths of the US Senate.

 FREEDOM, THEN AND NOW

"Ich bin ein Berliner."

After "ask not . . .", they were John F. Kennedy's most famous words.

In the Summer of 1963, Kennedy gave a speech on what was then the  hottest line in an almost two decades long cold war -- the city of West Berlin.  

At that time, the city was divided in two and separated by a physical wall.  The wall had gone up in August 1961. Communist East Germany, which was part of the Warsaw Pact uniting seven east European countries ruled by communists with the Soviet Union in a so-called treaty of friendship that was actually a Soviet political and military prison, had put up the wall. Though it claimed the wall was designed to keep fascists out of East Germany, its real purpose was to prevent East Germans from emigrating to West Germany.  

The entire city of Berlin was located in East Germany.  Its western sector, however, was controlled by the American, British and French in the wake of World War II and that control allowed those Berliners to avoid the fate of their municipal brethren in the Soviet sector, which became  a part of communist East Germany. As an oasis of freedom and democracy in the middle of a totalitarian regime, it also became a magnet. Between the end of World War II and 1961, 20% of the East German population emigrated, many by simply walking from East to West Berlin or from East Germany into West Berlin.  

The wall was set up to stop this.

Initially it was a stretch of barbed wire and fencing that ran from one to the other end of the 27 mile line dividing East and West Berlin, along with a separate 97 mile stretch of barbed wire and fencing that cut off the outer ring of West Berlin from East Germany. By the time Kennedy arrived in 1963, however, the wall had morphed into a cinder block and concrete outer wall between eleven and thirteen feet high and a separate inner wall six to ten feet high.  The inner wall was 110 yards from the outer wall and the houses between the two were later torn down. The area between the two was called the "death strip".

On June 26, 1963, Kennedy spoke to 120,000 West Berliners. With an eloquence much of today’s politics has lost based largely on the idiocy that insults signal authenticity and intellectual rigor masks elitism, his speech was an ode to freedom . . .

And free men.

He began by reaching back in history.

"Two thousand years ago," he said, "the proudest boast was 'civus Romanus est.'" 

That phrase, Latin for "I am a Roman citizen", had been made famous by Cicero, a Roman lawyer, politician and philosopher revered by both America's founders and their 18th century enlightenment brethren -- Locke, Hume, Voltaire, Montesquieu and Edmund Burke. He uttered it in the fifth session of his prosecution before the Roman Senate of Sicily's former governor Gaius Verres for corruption, extortion and bribery, explaining to the court that Verres' corruption had even extended to arresting returning Roman sea merchants (whose ships and goods he illegally seized) and then summarily killing them. 

The seizure and plunder was bad.

But the illegal deaths were even worse.

Romans could not be summarily executed.  They had to be tried and convicted. In fact, the protections afforded Roman citizens were so complete that merely mentioning one's citizenship sheathed the executioner's sword. For Verres' victims, however, it became a death sentence. As Cicero put it in his prosecution, "The necks of Roman citizens were broken in prison in a most ignominious manner, so that that [the] supplication  'I am a Roman citizen,' which has often brought help and safety to many in the remotest lands among the barbarians, would bring them a more bitter death and a sooner punishment."

"Today, in the world of freedom," Kennedy continued, "the proudest boast is 'Ich bin ein Berliner.'"

Kennedy wasn't the first veteran of World War II to serve as President. That honor belongs to Eisenhower, the Allies' Supreme Commander in Europe.  But JFK was the first foot soldier to become chief executive, had tasted war and seen battlefield death, and knew there could be no compromise with Soviet communism. It had already reduced eastern Europe to a host of servile states and even killed Hungarians in 1956 who had tried to revolt.

The Germans in East Berlin, however, created a more daunting challenge.  

They could just walk to freedom.  

If the East Germans and Soviets had invaded and overtaken the western sector, they would have had to kill American, British and French troops stationed there and started World War III.

So instead of fighting the allies, they decided to fight their own.

By imprisoning them.

"Freedom has many difficulties and democracy is not perfect," Kennedy proclaimed, "but we have never had to put up a wall to keep our people in, to prevent them from leaving us."  He then praised Berliners themselves, explaining that he knew of "no town, no city, that has been besieged for 18 years that still lives with the vitality and force, and the hope and determination of the city of West Berlin."

The wall, Kennedy intoned, was "an offense not only against history but an offense against humanity." It separated families, "dividing husbands and wives and brothers and sisters, and dividing a people who wish to be joined together."  From their "defended island of freedom", he implored them to look to the future and lift their "eyes beyond the dangers of today, to the hopes of tomorrow."

He then concluded:

"Freedom is indivisible, and when one man is enslaved, all are not free."

"When all are free, then we can look forward to that day when this city will be joined as one [with]  this country and this great continent of Europe in a peaceful and hopeful globe."

And . . .

"When that day finally comes, as it will, the people of West Berlin can take sober satisfaction in the fact that they were [on] the front lines for almost two decades."

"All free men, wherever they may live, are citizens of Berlin."

"And, therefore, as a free man, I take pride in the words 'Ich bin ein Berliner.'"

On Monday, the Republican Speaker of the Texas House of Representatives announced that Democratic legislators could leave the Capitol in Austin only if they signed permission slips agreeing to return  on Wednesday and allowing the state police to trail and monitor them to insure they did so.  Those who refused to sign the slip were confined to their offices, and those who left (with or without signing  the slip) were literally shadowed by the state police on a 24/7 basis.

Texas's Republican Speaker is Rep. Dustin Burrows. This piece of childish immaturity and rank illegality was justified, so Burrows claimed, because Democrats earlier in the month had left the state in order to make it impossible to convene a special legislative session.  No legislative session can occur absent a quorum, which requires the physical presence of at least two-thirds the sitting members. The Texas House has 150 members. 88 are Republicans and 62 are Democrats. At least 100 members are needed to constitute a quorum, and without the absent Democrats that was impossible.

The GOP called the special legislative session to redraw Texas's Congressional district lines and create five additional Republican seats. Though redistricting is usually done every ten years when the census is taken, President Trump ordered Texas to engage in this additional round of redistricting because he fears Republicans will lose the House of Representatives in the 2026 mid-term elections. Given that Trump's overall approval rating is at 38% in some recent polls and his Big Beautiful Bill (which guts Medicaid and supplemental food assistance, balloons the deficit, and lines the pockets of the super-rich) is almost universally despised by the public, this is a reasonable fear.

Drawing lines to capture seats is known as gerrymandering.  The word was created in 1812 when Massachusetts Governor Elbridge Gerry signed a law redrawing Congressional lines that created a Boston district in the shape of a salamander. Hence . . .

Gerry-mander. 

Over the years, and in fairness, both Democrats and Republicans have done it; Gov. Gerry himself did it to benefit the Jeffersonian Democratic-Republicans and hurt the Federalists.  Of late, however, the GOP has embraced the practice with abandon, and with computer-driven data banks that allow cartographers to know voting behavior almost down to the household, while good government groups in two of the largest Democratic states (California and New York) have made the practice illegal.  The result is that, once Texas's mid-decade redistricting becomes the law, the GOP will more likely than not win an additional five seats in that state without, under the current rules, the Democrats picking up additional seats anywhere else solely on account of the lines.  

The communists against whom JFK railed in 1963 had elections. They just never mattered, dictated as they were by the only permitted party. We are not there yet with gerrymandering, but the trend is bad. In 1992, the number  of states with a divided government was 31. Today it is 13, which means 37 states are now controlled by one party. In the best of all worlds, a Constitutional amendment or national legislation would eliminate the practice and have independent commissions draw the lines in every state. We, however, do not live in that world.

So . . .

In response to Texas, California Gov. Gavin Newsom is now supporting a ballot initiative that would change its law and create district lines that favor Democrats if Texas actually redraws theirs. And New York Gov Kathy Hochul has said she too will propose a law redrawing New York's. The California change would be in time for the 2026 mid-terms.  The New York change would not.

None of this appears to have mattered to Texas or Trump. 

The Texas House passed its new map on Wednesday and its Senate is expected to do so today.. Its Governor will sign the new lines into law shortly thereafter.

Earlier this week, one of Texas's Democratic House members, Linda Garcia, left the Capitol in Austin and drove three hours to her home in Mesquite. Her car was trailed by the state police for the entire trip. When she went grocery shopping later that night, the cop followed her down every aisle.

In his speech in Berlin, Kennedy excoriated apologists for communism.

"There are many people in the world," he said, "who don't understand, or say they don't, what is the great issue between the free world and the communist world. Let them come to Berlin. There are some who say that communism is the wave of the future. Let them come to Berlin. There are some who say in Europe and elsewhere we can work with communists. Let them come to Berlin. And there are even a few who say that it is true that communism is an evil system, but it permits us to make economic progress . . .

Lass sie nach Berlin kommen. Let them come to Berlin."

He also made it quite clear we were different.

"Freedom has many difficulties and democracy is not perfect," he claimed, "but we have never had to put up a wall to keep our people in, to prevent them from leaving us."

Oh, well . . .

Let them come to Austin.

STREET HUSTLES

When I worked in New York City, I was always amazed at those gullible enough (myself sometimes included) to be taken in by street hustles.

They took various forms.

Shell games where one player's victory turns into a subsequent victim's string of losses.

Cash payments for counterfeit tickets to sold-out games or concerts.

Extortionate payments to the ubiquitous "squeegie men" who "cleaned" windshields at backed-up traffic lights.

The hustles, however varied, had three common features.

First, the conned were captured, either physically or mentally.  They either  had nowhere else to go (those stuck in traffic), thought they had nowhere else to go (the ticket buyers) or convinced themselves they should not go anywhere else (the guy before me won so I can too).

Second, the hustlers were persuasive. They offered what appeared to be either a needed service (tickets; clean windshields) or a reasonable chance at success (victory in the shell game).

Third, even as or after the con became apparent, the individual cost was relatively small and the larger social cost disguised. For the individual, it's about pocket change with the shell game or squeegie man. And though it's much (but not the end of the world) more with the counterfeiter, those who walk away mad generally chalk it up to their own gullibility and vow to be less "stupid" going forward.  In fact, gullibility itself disguises the costs writ large for all these cons, as most of us who fall for them are either too gullible to even notice or too embarrassed to do anything about it other than suffer the loss in silence and move on.  

And sometimes the gullibility is so complete that denial sets in.

There are, afterall, shell game players who return the next day convinced their luck will change.

For the past six months, more than half the country has watched in somewhat jaw dropping amazement as Donald Trump has pressed his slim 2024 electoral victory, bare GOP House and Senate majorities and 6-3 conservative Supreme Court into the service of his own set of dysfunctional, illegal and often cruel policies and programs. 

This has resulted in a raft of executive orders, a single legislative effort, and a series of  court decisions:

(i) to pardon over 1,500 January 6 defendants, many who had attacked and injured Capitol police; 

(ii) to impose enormous tariffs on allies and enemies alike not seen since the era of Smoot-Hawley and the Depression;

(iii) to mass arrest, detain and deport illegal aliens (even thousands who were here legally under prior Biden orders or standard immigration procedures, and often to foreign prisons without any due process whatsoever); 

(iv) to gut the federal work force (including those in the State Department, USAID, the Department of Health and Human Services, the CDC, the Department of Education and the Federal Emergency Management Agency);

(v) to pretend to solve problems he himself created (as in the Iran bombing, necessary only because Trump in his first term pulled out of the 2015 JCPOS agreement that was being honored and actually would have resulted in far less -- in fact de minimis amounts of -- enriched uranium and far fewer centrifuges in Iran than was the asserted reason this year for Israel's attack and America's bunker-busting assistance); 

(vi) to sacrifice Ukraine to if not Putin's agenda then certainly to his timing; and 

(vii) to pass a misnomer called the Big Beautiful Bill that will result in 17 million losing their health insurance and 2 million losing their food assistance so that the 1% continue to receive enormous tax breaks.

For the cops beaten on January 6, the millions who will lose their health insurance, the Ukrainian nation, those who will die without the HIV drugs USAID was providing, the immigrants who have been or will be shipped to foreign (or even Florida, see Alligator Alcatraz) gulags, and the flood victims who will not be rescued because FEMA has imploded . . .

None of this was or will be a street hustle.

But for the unaffected (or not yet affected) who approve . . .

It was.

Consider the three features of the hustle and how Trump exploits them all.

First, the capture.  

Nowadays, those captured are the people Trump has actually conned into thinking they must have what he is offering.  

On tariffs and mass arrest, detention and deportation, they are the white men without college degrees who (falsely) think their economic angst is on account of foreigners or illegal immigrants stealing their jobs. On pardons, it is the same group who swallowed the lie that Trump won the 2020 election and that those who overran the Capitol on January 6 were patriots. On foreign policy, they are the insular without passports who think America First means America alone and above it all. And on shrinking government either through irrational seat-of-the-pants lay-offs or trillion dollar spending cuts that will kill healthcare and food support for millions, they are the 1% convinced they cannot live in a world where the marginal tax rate is what it was (a few points higher) during the Obama administration.

They all think Trump, and only Trump, is giving them something they need or deserve. 

Many of them think they do not have any other choices.

Almost all of them are angry.

And like the proverbial sidewalk optimist watching the shell game, all of them have been captured by the con.

Next, the persuasion. 

If you had to pick an easy group to vilify these days, illegal immigrants would be at the top of the list. They are by definition doing something illegal. They have no capacity to fight back.  And more than half of them are brown. Similarly, if you need to cut spending to preserve a tax cut, the easiest services to cut are those that go to the fewest number of recipients -- the poor who need but can't pay for heath care (hence, Medicaid), the flood victims who want but can't afford to rebuild (hence, FEMA), the foreigners who want but do not have all the ammunition needed to defeat the tyrant (hence, Ukraine) or the ill beyond our borders who cannot live without life-saving medicine (hence, USAID).

All of these groups are easy targets and in the twisted world of a dishonest con-man can be turned into villains who become  props in the sale of his con.

The two central moves in Trump's limited rhetorical arsenal are his degradation of immigrants and his pathological willingness to lie. Though  the vast majority of undocumented immigrants are law-abiding and are here because they were fleeing poverty and sometimes even death for themselves or their families, Trump has spent all of his now almost ten years in national politics talking about them the way Hitler talked about Jews.  See A Tale of Two Fascists, October 23, 2024 https://neils3ds.blogspot.com/2024/10/a-tale-of-two-fascists-hitlers.html. And in his current tax and spending con, he routinely characterizes any spending cuts or lay-offs as being made solely to eliminate "waste, fraud and abuse."  

His immigrant talk -- apart from being inaccurate -- is also disgusting.

And his "waste, fraud and abuse" claims on lay-offs and spending cuts do not survive even cursory factual review. 

Many were refuted soon after the lay-offs themselves, when the "waste, fraud and abuse" that were the departed employees had to be brought back to actually perform the jobs Trump's acolytes had mindlessly fired them from.  Others were belied by the people who actually went in and did Trump's bidding. As one DOGE reviewer noted after his run through the federal bureaucracy in search of demons to slay: "I did not find the federal government to be rife with waste, fraud and abuse. I was expecting some more easy wins."

Finally, the gullibility of apparent low cost and denial.

The most interesting thing about the Supreme Court's 2024-2025 Term is the  number of important and perhaps determinative decisions made on the Court's so-called shadow docket.  These were cases where the Court had to grant or deny a stay or rule on an otherwise interim procedural matter while the actual case moved forward.  Earlier this week, and without ruling on the merits of the case itself, the Court issued an unsigned decision staying a lower court order prohibiting Trump from eliminating over half the employees at the Department of Education. Because Trump's Secretary of Education explained that her lay-offs were "the first step on the road to a total shutdown" of the Department, and because the Department itself was created by an act of Congress and thus cannot be shut down unilaterally by any president, the lower court had issued an order granting a preliminary injunction stopping the lay-offs while the parties litigated the executive's right to do so. 

The Supreme Court stayed that order.

We do not know the reason the Court did so. None of the six justices who granted the stay explained why. Presumably, however, they concluded, as the government had argued in its briefs, that the lay-offs would not interfere with the Department's ability to perform its statutory functions, were not intended to shut the Department down, and were just designed to "cut bloat." In other words, the stay would be cost free.

This move by the government -- and then by the conservative majority on the Supreme Court -- was a street hustle on steroids.  

As pointed out in Justice Sotomayor's lengthy dissent, in which both Justices Kagan and Jackson joined, the administration was just plain lying in claiming no intent to close the Department given both Trump's and the Secretary's explicit public statements to the contrary.  And as she also noted, the overwhelming record evidence from the court below was that the lay-offs already were in fact interfering with the Department's performance of its duties.  Among the effects were funding delays that forced schools to fire teachers and certification delays that made it impossible for college students to obtain federal financial aid. One former Secretary of Education stated point blank that "the Department cannot meet its statutory obligations at the level of staffing proposed by the Defendants."

Like the pea under the shell that is gone once the shell is lifted, the "cut bloat" claim disappears upon inspection.

But the gullible -- on the Court and in the country -- still believe it.

And on the Court, unfortunately, this has now become a habit.

As reported by Adam Liptak in The New York Times yesterday, "In the last ten weeks alone, the court has granted emergency relief to the Trump administration without explanation seven times, according to a tally by Stephen I. Vladeck, a law professor at Georgetown and the author of the book about the court's emergency work called 'The Shadow Docket.'" Using "terse provisional orders meant to remain in effect only while the courts consider the lawfulness of the challenged actions," the report continued, the orders "[i]n practice . . . effectively resolve the case." With them, "[t]he court has allowed the administration to fire tens of thousands of government workers, discharge transgender troops, end protections for hundreds of thousands of migrants from war-torn countries and fundamentally shift power from Congress to the president -- often with scant or no explanation of how it arrived at those results".  

As the Times also noted, "the Trump administration's use of emergency applications in the first half of 2025 represented an all time high of 15 as of June 18".

The previous high for an entire year was 11 . . .

In the last year of the first Trump administration.

Trump is using emergency orders on the shadow docket to disguise the costs of his cons . . .

And six justices on the  Supreme Court -- either oblivious to the harm or taken in by the the administration's strained (even absurd) denials -- are helping him.

The shell game hustle works because the con man actually uses two peas.  The first is under the shell he shows you at the outset.  The second is tucked in a band-aid he wears on the end of his ring finger. The initial pea disappears through a small slit the money on the table disguises as the shell is rapidly moved. The second is then snuck under another shell the loser isn't following.

The con can't work without two peas.

And as the Supreme Court's shadow docket orders show . . .

Neither can Trump's.

THE TEN ESSENTIAL LIES TRUMP TELLS HIMSELF . . .
AND HIS  GOP ENABLERS  IGNORE OR REPEAT

1.  January 6 was not an attempted coup.

2.  Tax cuts for the 1% do not increase the deficit.

3.  The Big Beautiful Bill will not deprive 17 million of health insurance . . . or close rural hospitals.

4.  The Big Beautiful Bill will not deprive over 3 million of Supplemental Nutrition Assistance Program (SNAP) benefits.

5.   I am only deporting undocumented criminals.

6.   Children born here to undocumented aliens are not American citizens.

7.   Ukraine started the war.

8.   Tariffs are paid by foreigners.

9.    I did not cheat on my wife and have sex with a porn star . . . or sexually assault E. Jean Carroll.

10.  I did not lose the 2020 presidential election.

Happy Birthday America.