Friday, July 12, 2024


Would someone please give me medical evidence that Joe Biden cannot do his job?

To be clear, that would require a diagnosis that he has a disqualifying condition.

As far as I can tell, the only such conditions would be dementia, stage 3 Parkinson's disease or a stroke. If he was terminally-ill and bed-ridden with cancer or had end-stage congestive heart failure, that too would qualify.  To be clear, messing up a debate, reading from a teleprompter or confusion in the face of an opponent's unchallenged Gish-gallop of lies does not qualify. 

Age-related frailty does not qualify.  

Being required to get a little extra sleep every night does not qualify.

And three weeks of op-eds by pundits and the occasional actor . . .

Does not qualify either.

No matter how much they profess to love him.

Whether Joe Biden or anyone else can actually do the job of being president probably depends, at least as an initial matter, on what it takes to actually do the job.  As a democracy that elects its president, the easiest answer is that it takes whatever the voters think it takes.  This is fair as far as it goes. It runs, however, into problems once "what it takes" turns out to be a checklist for partisanship rather than a criteria for competence . . . 

Which is pretty much where we are today with Joe Biden.

For years, and without any objective evidence, Donald Trump and the rubber-stamped Trumpism that is today's Republican party have proclaimed Biden not fit to serve on account of his age.  They have openly proclaimed, again without any evidence, that Biden is physically and cognitively impaired and therefore cannot do his job.  Until a few weeks ago, the only "evidence" of any of this was the President's halting gait. 

The claim itself took a huge hit in March when Biden gave an impassioned State of the Union address replete with extemporaneous gibes at the right-wing amen chorus and an in-the-aisle after-party that had the Speaker wondering when he'd get to turn the lights off and send everyone home. In fact, things were so bad evidence-wise that Trump was repeatedly field-testing a "Joe's on drugs" explanation for any exhibitions of presidential energy and with-it-ness. 

But then, of course, the debate happened and Biden's poor performance became an evidentiary Rorschach test for anyone who had ever told him to be a one termer.

The problem with Rorschach tests, however, is they turn out false positives roughly half the time.  

In other words, they are useless.

And that is also the problem with using Biden's debate performance as a substitute for medical evidence.

The real job of the president is to uphold the oath of office, otherwise  make good decisions on difficult issues and work with and persuade Congress to fashion appropriate legislation.  The qualities needed to do so are respect for the rule of law, intelligence, honesty, empathy, patience, a willingness to listen and learn and the courage to admit when you are wrong. Because the job is so complicated and all-consuming, it also requires a team of non-yes men and women who can distinguish between signal and noise and a schedule where a full day's work is actually a full day.

In his one term in office, Donald Trump exhibited none of these qualities.  He broke the law, lied habitually and was lazy. "Executive time" in the residence and out of the Oval became the biggest item on his daily schedule. And while his team during that term thankfully included those whose saved us from his worst instincts, including his desire to illegally re-install himself in the White House after he lost, that will not be the case in any second term. Only the cravenly loyal will be part of any follow-on inner-sanctum.

My first reaction to the debate was to admit it was bad and that age-related questions had to be answered. I thought they could be with an independent medical exam. The White House response was that such an exam had already been done this past February and neurologists had declared the President  fit and free from "any cerebellar or other central neurological disorder, such as stoke, multiple sclerosis, Parkinson's or ascending lateral sclerosis." 

To me, that seems sufficient. 

To George Clooney, however, it is not.

What gives?

Lynn Casteel Harper is a minister and chaplain.  She has just written an article entitled "Ageism is Making it Impossible to Fairly Judge Joe Biden."  It appears in the current edition of America, the Jesuit review of faith and culture. 

In the article, Harper explains that "in the days since the first presidential debate" all she saw was "the circular logic that says [President Biden] is just too old”, is “incapable of leading because he's just too old and/or vulnerable to losing the election because he's just too old."  Instead, however, "of challenging the 'too old' assault for what it is -- a generalization propped up by the false equivalence of incompetence with old age -- many in the Democratic party have accepted and perpetuated this ageist language."

It is, she says, "warping media coverage and the calls for his resignation."

As Harper points out, the warping involves "both hyper-visibility and invisibility".  The "hyper-visibility scrutinizes all slip-ups, stumbles or slow-downs . . . Because ageism promulgates the notion that old age spells universal diminishment, all these highly tracked lapses are said to simply prove the point -- thus concealing ageism under the guise of 'just what it is.' Every flub from Mr. Biden gets routed back to the 'too old' evidence pile."

"The flipside of hypervisibility," she points out, "is the invisibility associated with old age, the . . . erasure [that] hides older people's gifts, knowledge, potential and accomplishments,” as well as the “positive attributes and contributions from old age." "Decline," she notes, "is presumed to be the hallmark of old age, and any kind of strength or ascendency . . . incidental or accidental". "Eclipsed by his age-associated weaknesses," she explains, "Mr. Biden's accomplishments are rendered invisible."

George Clooney's op-ed yesterday was only the latest example of this warping.  

In it, the acclaimed actor makes two assertions. The first is the unproven claim that Biden cannot win. Even after the debate, all the polls still handicap the race as a margin of error one at best. The second is the equally unproven claim that he cannot win (and Democrats will lose the House and Senate) because of his age. And that, at this point, threatens to become a self-fulfilling prophesy if repeated often enough. The rest is all about hyper-visibility or how we "collectively hold our breath or turn down the volume whenever we see the president, whom we respect, walk off Air Force One or walk back to a mic to answer an unscripted question."

This is not just the fault of Trump and the Republicans.  

As Harper admits, Biden himself has contributed to the problem with "super senior" push-up challenges that "defend his worthiness" through "physical feats of strength."  More to the point, she writes, "Mr. Biden and his team -- and the journalists who cover him -- have rarely seized the opportunity to foster a different narrative of his aging", one that focuses "on how his judgment has gotten keener, or on how he is not the person he was a decade or two or three ago (the man who maligned Anita Hill and voted for the Iraq War), and that is a good thing."

"What if," she asks, we "acknowledged that Mr. Biden cannot zig-zag the globe and be in top debating form . . . but . . . knows how to build and lead a team, delegate appropriately, and ask for help when he needs it. Maybe it is too dangerous to admit and embrace aging in this way, and maybe ageism's stranglehold is so strong that it would not help anyway, but it seems equally counterproductive to ignore aging altogether and cede the premise that being 'too old' is automatically disqualifying."

To be clear, Harper is not saying "aging leaves us unchanged."  It is not, she admits, "just a number." "Fresh limitations and challenges arise as the years go by, but other things can emerge too, such as refined perspective, greater discernment about what is important and deepened relationships."

In the will he or won't he drumbeat that has taken over, none of this is being said. 

And that may be the biggest tragedy that now awaits us.  

There is no guarantee a different Democrat can take out Trump. He or she may not have the time. Or may not survive the vetting.  Clooney glides by these legitimate concerns, dismissing them as "scary stories" that are "simply not true."


But here's another story.

Harper again:

"Mr. Biden possesses many positive attribute that become possible with accumulated life experience, something that may not necessarily be true of his opponent in this election."

The only thing wrong in that last sentence is . . . 

The “may not”.

Wednesday, July 3, 2024


George III is laughing in his grave.

It took 248 years but America finally decided it wants a monarch after all.  

Or at the least the Supreme Court has made that decision.

The rest of us must now endure it for some foreseeable future.  

It is unclear how many presidential crimes we will also have to endure along the way.  

If Trump is elected this November, the sky may well be the limit. 

You can rest assured he will not be prosecuted for the attempted coup he orchestrated in the aftermath of the 2020 election.  You can also rest assured that, armed with a veritable handbook on how to turn America into the authoritarian fascist state he longs for, Trump's sycophants and institutional toadies will exploit the Court's idiotic endorsement of l'etat, c'est moi to give him precisely what he wants.

That is the immediate effect of Monday's Supreme Court decision in Trump v. United States.

The long-term effects are even worse.

In forty-two pages of judicial sophistry, John Roberts vacated the decisions of two lower courts that had declared Trump not immune from prosecution for having orchestrated his attempted coup.  

None of this Court's usual sources provided any basis for doing so.  

The text of the Constitution does not make former presidents immune from criminal prosecution.  In fact, it provides for the exact opposite in the so-called Impeachment Clause, which states that even a president convicted by the Senate on impeachment "shall nevertheless be liable for and subject to Indictment, Trial, Judgment and Punishment, according to Law."  

Nor does history, this Court's other go-to source on all questions constitutional, support in the least any grant of immunity.  

Again, the opposite is the case.  

At the time of the founding, a number of states had constitutions that gave their executives (i.e.,governors) immunity from criminal prosecution.  The Founders, however, decided not to do so. This was not all that surprising.  The country had just won a Revolutionary War separating itself from a regime where its executive, namely, the King, was immune. The Founders were not remotely interested in resurrecting that disaster.

At this point, Roberts and his Republican-appointed colleagues should have given up the ghost, affirmed the two lower courts' denial of immunity, and allowed the case against Trump to go forward.

But they didn't.

Instead, based on a problem that does not exist . . .

They created a solution that will make things worse.

Far worse.

The non-existent problem is that criminal prosecutions of former presidents will somehow cripple the Executive Branch.  As Roberts put it, under "'the pall of potential prosecution", "the hesitation to execute the duties of his office fearlessly and fairly . . . raises 'unique risks to the effective functioning of government."

"A President inclined to take one course of action based on the public interest," he said, "may instead opt for another, apprehensive that criminal penalties may befall him upon his departure from office. And if a former President's official acts are routinely subject to scrutiny in criminal prosecutions," he continued, "'the independence of the Executive Branch' may be significantly impaired."

There is, however, no evidence whatsoever that this problem has ever existed.


No former president has ever said or even implied that he made or hesitated to make any decision because he feared he was violating the criminal laws or would be held accountable for any putative violation once he left office.

Not Nixon for bombing Cambodia, Jefferson for the Louisiana Purchase, Jackson for the "trail of tears", Lincoln for ending habeas corpus, Reagan for Iran-Contra or Bush II for approving enhanced interrogation techniques.

Nor has any presidential historian ever found any president who deemed this a risk.

This is not because no former president has ever before been indicted. 

To the contrary, until now everyone assumed that presidents, like everyone else, were governed by the nation's criminal laws, had to follow those laws on and off the job, and could be held accountable if they violated them.  Former President Ford confirmed that understanding when he gave Richard Nixon a pardon for any crimes Nixon had committed during his presidency. And the Supreme Court said as much in Nixon v. Fitzgerald when it both carved out an immunity against charging former presidents civilly for official acts they undertook in office but clearly noted the same would not apply in criminal cases. 

To cure this non-existent problem, the Court held, presidents from this point forward will now enjoy some form of absolute or presumed immunity.

For acts within "his exclusive sphere of constitutional authority," the President will be "absolutely immune." For "official" acts outside that sphere, he will enjoy either absolute or presumed immunity. It will be absolute "unless the Government can show that applying a criminal prohibition to that act would pose no 'dangers of intrusion on the authority and functions of the Executive Branch.'"

Though this standard seems clear as stated, Roberts spends two-thirds of his opinion offering guidance on what it means and how it should be applied . . .

Making it anything but.

In fact, we are in a brave new world.

Courts will first have to determine whether an act is within a president's exclusive sphere. Assuming it isn't, they will then have to decide if the act was official or unofficial. If unofficial, there is no immunity.  If official, however, the act is presumptively immune. To overcome the presumption, the Government will then need to satisfy the no danger test.  Critically, the Court stated that "in dividing official from unofficial conduct, courts may not inquire into the President's motives."  Nor, it said. "may courts deem an action unofficial merely because it allegedly violates generally applicable law." (Later in its opinion, the Court also decided that, in this case, evidence in the nature of "official conduct" could not even be used to prove Trump's motive or mens rea.)

In support of this three-part test, Roberts notes that examples of exclusive presidential authority include the pardon power, the power to remove and supervise federal officials acting on his behalf, and the power to recognize foreign countries. Official acts, he explains, are those for which the Constitution or statutes provide authority.  Because, however, the President's "discretionary responsibilities" are broad and some acts (like "speaking to and on behalf of the American people") are official even absent specific authority, Roberts concludes that "immunity extends to the 'outer perimeter' of the President's responsibilities, covering actions so long as they are 'not manifestly or palpably beyond [his] authority'"

The indictment of Trump charges him with attempting a coup by falsely claiming he won the 2020 presidential election and then attempting to enlist the Justice Department, the Vice President,  numerous state officials and others in support of his effort to reverse the results by falsely claiming fraud, finding votes that did not exist, creating fraudulent slates of electors in a number of states, demanding that the Vice President reject legitimate electoral votes on January 6 and inciting the Capitol riot that same day to force that result.

Though the Court remands the case back to the district court to determine which parts of that indictment, if any, can move forward, its capacious definition of official acts and "no danger" test make it highly unlikely that anything will survive.  Indeed, in his ten pages of specific "guidance" on how the Court's new immunity rule might apply to the actual indictment, Roberts basically lays out a road map to immunity. 

On the indictment's charge that Trump tried to use DOJ attorneys to "convince certain States to replace their legitimate electors with Trump's fraudulent slate" -- all of which the DOJ refused to do -- the Court notes that these allegations involved Trump's official use of power. To drive the point home, Roberts spends two pages going on about the executive's authority to investigate, prioritize and  prosecute crime, and the president's "unrestricted power" to remove officials.

On the charge that Trump tried to force the Vice President to reject legitimate electoral votes, Roberts spends three plus pages laying out the Vice President's role as successor and adviser to the President. "Whenever the President and the Vice President discuss their official responsibilities," he offers, "they engage in official conduct." 

On the charge that Trump conspired to create fraudulent slates of electors, the Court said "determining" whether this was official or unofficial conduct "requires a close analysis of the indictment's extensive and interrelated allegations."  On the charge that his rally speech on January 6 and tweets beforehand incited the riot that then occurred, the Court said that this too was "factbound".

As far as I can tell, the Supreme Court has decided that Trump cannot be prosecuted for, nor can any evidence be admitted of, any of the indictment's alleged interactions between him and DOJ attorneys or between him and Pence.  To the extent his communications with state officials fall within a generic right to officially comment on federal elections, or his rally speech and tweets are outgrowths of every presidents "long recognized" use of the "bully pulpit to persuade Americans . . . in ways the President believes would advance the public interest", these acts would also be beyond the reach of the criminal law.

That Trump actually lied about the results of the election and the absence of  any outcome-determinative fraud, actually intended to remain in office despite losing, actually solicited or approved his agents' solicitation of fraudulent electoral slates to do so, actually demanded that his Vice President spearhead an 11th hour unconstitutional coup and actually encouraged his supporters to engage in a putsch . . .

Does not matter to six members of this Supreme Court.

All of whom were appointed by Republican presidents.

Five by Republicans whom the majority of Americans voted against.

Trump v. United States will go down in history as one of the four worst decisions ever made by the Supreme Court.  The other three are Dred Scott v. SanfordPlessy v. Ferguson and Lochner v. New York. In Scott, the Court held that Congress could not ban slavery in the federal territories.  It led almost directly to the Civil War.  In Plessy, the Court bastardized the 14th Amendment by allowing the de facto re-enslavement of blacks under the legal myth of separate but equal. It basically reversed the results of the Civil War. And in Lochner, the Court turned industrial capitalism into a killing field by allowing the abuse of children under the guise of the Constitution's contracts clause. It crippled Congress' ability to regulate the profit motive run amok.

The only bright spot in this otherwise dark and dangerous moment is this:

Disastrous decisions often beget prescient dissents.  

In Plessy, there was John Marshall Harlan.

In Lochner, Oliver Wendell Holmes, Jr.

And in Trump v. United States there is . . .

Sonia Sotomayor.

In her eloquent dissent, Justice Sotomayor eviscerates the Chief Justice's opinion. After laying out the indictment's "stark portrait of a President desperate to stay in power," she begins: "The Court now confronts a question it has never had to answer in the Nation's history: Whether the former President enjoys immunity from federal prosecution.  The majority thinks he should," she continues, "and so it invents an atextual, ahistorical and unjustifiable immunity that puts the President above the law."

"Argument by argument," she notes, "the majority invents immunity through brute force. Under scrutiny the arguments crumble . . . [T]he majority's broad 'official acts' immunity is inconsistent with text, history and established understandings of the President's role. [I]t is deeply wrong even on its own functional terms. Next, the majority's 'core' immunity is both unnecessary and misguided. Finally, the majority's project will have disastrous consequences for the presidency and our democracy."

Sotomayor justifiably upbraids the Roberts six for their transparent hypocrisy.  

Though the majority calls for "a careful assessment of the scope of Presidential power under the Constitution," she writes, that "careful assessment does not involve the Constitution's text," which "contains no immunity from criminal prosecution."  Laying out the wealth of historical evidence refuting any notion of criminal immunity, she concludes, citing the Dobbs  decision eliminating the right to abortion and the Bruen decision establishing the right to carry a concealed weapon, "It seems history matters to this Court only when it is convenient."

Text, history and hypocrisy aside, however, the "disastrous consequences for the presidency and our democracy" form the backbone of Sotomayor's dissent.  

At base, she notes, the Court has granted absolute immunity to any official presidential act. The Court claims otherwise but the "no danger" test for overcoming presumptive immunity eliminates that possibility.  "It is hard to imagine a criminal prosecution for the President's official acts that would pose no danger of intrusion on Presidential authority in the majority's eyes," she explains, and because "any incursion on Executive power is too much" under the majority opinion, whether immunity is absolute or presumptive "hardly matters."  In fact, the imposed test "narrows the conduct considered 'unofficial' almost to a nullity." And when the majority's additional rule precluding inquiry into motive is added to the mix, "any use of official power for any purpose, even the most corrupt purpose indicated by objective evidence of the most corrupt motive and intent, remains official and immune."

In laying out the risks the majority pretends to protect against, the Sotomayor dissent unearths the fictional world in which the majority actually resides.  In that world, the president cannot dare to be bold or "'deal fearlessly or impartially' with the duties of his office" if he is held accountable for his crimes. "If that is right," says an exasperated Sotomayor, "it is a distortion that has been shaping Presidential decision-making since the earliest days of the republic." Because, from the beginning in 1787, "every sitting president has so far believed himself under threat of criminal liability after his term in office."

It is, of course, not right. 

Presidents have not found it difficult comply with the criminal law and do their job at the same time.  No one -- save Trump -- has even been charged after he left office; the only one who came close resigned and was pardoned. Any who are (including Trump) have available the full panoply of "robust procedural protections" that make base or frivolous allegations dead on arrival. And as for serious allegations, it is hardly chilling to require that the person sworn "to take care that the laws be faithfully executed" at the very least avoid violating the ones that are crimes.

The Supreme Court has laid waste to that bedrock requirement inherent in the rule of law.  

As Sotomayor starkly warns: "The Court effectively creates a law-free zone around the President, upsetting the status quo that has existed since the Founding."

"This new official acts immunity now 'lies about like a loaded weapon' for any President that wishes to place his own interests, his own political survival, or his own financial gain, above the interests of the nation."

"The President of the United States is the most powerful person in the country, and possibly the world. When he uses his power in any way, under the majority's reasoning, he will now be insulated from criminal prosecution."

"Orders the Navy Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune.”

"Immune. Immune, Immune."

"In every use of official power, the President is now a king above the law."

Tomorrow is the Fourth of July.

I would table the fireworks.

A laughing George III is nothing to celebrate.

Friday, June 28, 2024


In the famous words of Ted Lasso . . .


President Joe Biden and Donald Trump took to the stage at CNN's studios in Atlanta last night for what was billed as a ninety-minute debate. 

Because their past meetings, largely if not exclusively on account of Trump's incessant bullying and puerile lack of self-control, had degenerated into the political equivalent of a food fight, the network imposed strict rules.  

There was no audience for anyone to play to. Anytime either candidate was not speaking, his microphone was silenced.  Their mics were also silenced whenever either candidate exceeded the time limits imposed for answers and rebuttals.  

Neither candidate was allowed to bring notes or other materials into the proceedings.  

During the two breaks, neither of them could speak to any staff or advisers.

The debate was hosted by two respected journalists, Dana Bash and Jake Tapper. They only asked questions.  And while they were excellent in demanding actual answers when none were given, they did not fact-check either candidate's responses.

If all of this was designed to restrain Trump, it worked but only to a very limited extent.  

He was stopped from interrupting and talking over anyone, which in the past had literally made the proceedings unintelligible. He was not, however, stopped from lying or from engaging in the mindless word salad that characterizes all of his extemporaneous riffs.

In the aftermath of the debate, CNN's own fact-checker, Daniel Dale, listed Trump's lies.  As Heather Cox Richardson pointed out early this morning in her Letters From An American, it took Dale three minutes to get through the list.

The list of lies was mind-boggling.

As CNN reported, "Trump made more than 30 false claims at the Thursday debate."  His "repeat falsehoods included his assertions that some Democratic-led states allow babies to be executed after birth, that  every legal scholar and everybody in general wanted Roe v. Wade overturned, that there were no terror attacks during his presidency, that Iran didn't fund terrorist groups during his presidency, that the U.S. has provided more aid to Ukraine than Europe has, that Biden for years referred to Black people as 'super predators,' that Biden is planning to quadruple people's taxes, that then-House Speaker Nancy Pelosi turned down 10,000 National Guard troops for the U.S. Capitol on January 6, 2021, that Americans don't pay the cost of tariffs, that he is the president who got the Veterans Choice program through Congress, and that fraud marred the 2020 election."

Concluding, CNN finished its report by noting that "Trump also added some new false claims, such as his assertions that the U.S. currently has its biggest budget deficit and its biggest trade deficit with China.  Both records occurred under Trump."

As Cox Richardson explained, the lies "went on and on, and that was the point.  This was not a debate.  It was Trump using a technique that actually has a formal name, the Gish gallop . . . It's a rhetorical technique in which someone throws out a fast string of lies, non-sequiturs, and specious argument, so many that it is impossible to fact-check or rebut them in the amount of time it took to say them.  Trying to figure out how to respond makes the opponent look confused, because they don't know where to start grappling with the flood that has just hit them. It is a form of gaslighting, and it is especially effective on someone with a stutter." Heather noted that Trump did the same thing to Biden in 2020. Ironically, however, "the lack of muting on the mics" then reduced Biden "to simply saying: 'Will you shut up, man'", while killing the mics last night "made the technique more effective."

Cox Richardson wrote that the Gish gallop can be "combat[ted] . . . by calling it out for what it is." 

I, however, have my doubts. 

Last night, my friend and  high school debate coach wrote that "As a reasonably successful high school debater more than five decades ago, I learned a hard reality. If you are devoted to arguing the facts  and reality and your opponent is willing to employ either false information or misconstrued data against your position, it is almost impossible to win an argument.  The great British linguist and theoretician, Paul Grice, established the rule that, in human communication, we normally expect a speaker to be expressing what is true (the first of the Grecian maxims of communication)."

It is, of course, almost impossible for anyone to go into any interaction with Trump expecting him to tell the truth, and it was not the case that Biden did so last night.  And though Cox Richardson thinks the Gish gallop was effective against Biden because he "retreated to trying to give three pieces of evidence that established his own credentials on the point at hand" rather than calling Trump out, the truth is that Biden often was . . .

Well . . .


So . . .


What should we do?

Here's my plan.

First, Joe Biden was bad last night. 

Admit it.  

And because a decent enough number of Americans think he is too old to complete another four years as President and may not have either the mental or physical stamina to do so, those of us who support him must confront this issue head on and refute it.  

Last night, Trump challenged Biden to take a cognitive test.  

We supporters should demand more than that.  

President Biden should publicly commit to immediately undergoing a full medical evaluation by an independent physician that includes tests of his physical stamina and mental acuity. If that evaluation does not clear him for the duty he seeks, he should announce he is not running for reelection and free all the elected delegates to choose a new nominee at the Democratic Party's August convention. 

If the shoe were on the other foot, would Trump or the Republican Party do this?

Not in a hundred years.

But we are different from them.

We aren't the party that is about to nominate a convicted felon, adjudicated rapist, pathological liar and coup plotting fascist bent on turning America into a 21st century version of what Germany became in the 1930s.

We are better than them.

They run away from the truth.

We confront it.

At the end of the day, Joe Biden has to be fit for duty.  

This does not mean he must exhibit the energy of a forty-year-old or become a poster child for prevagen.  

Performing as president does not require and is not the work of a soloist. It requires a team.  

One of the major reasons Trump cannot be president is that almost all the competent adults who saved him from himself in his first term have abandoned him this time. The list is long and includes most of his former Cabinet officials, two of his former National Security advisers, one former chief of staff and the former Vice President. The team he intends to put together in 2025 will be a rogue's gallery of sycophants and incompetents and his blueprint for governing will involve retribution, recrimination and revenge.

That is not a problem Biden faces at any level.

His Cabinet is first rate. 

Blinken, Austin, Yellin, Buttigieg, Raimondo, Vilsack, Granholm et al. are all superb.  Vice President Harris is an effective spokesperson, excellent communicator and a fighter. Together, this group is more than able -- and much more able than any group Trump can or  will put together -- to roll up it sleeves and continue to help this old but effective man be the continuing presidential success he has demonstrated he already is.

But first things first.


Friday, June 7, 2024


Late in the afternoon on May 30, a New York jury found Donald Trump guilty of thirty-four counts of falsifying business records. 

At that time, in what was clearly a minority view, I thought the reasons not to comment on the verdict easily exceeded those for doing so.

The charge itself -- falsifying business records -- is ordinarily a misdemeanor.  It can be turned into a felony, though it rarely is, if the false records are generated with an intent to defraud that includes an intent to commit another crime or to aid in or conceal the commission of another crime. 

In this case, Manhattan's District Attorney Alvin Bragg alleged that the other crime was the violation of section 17-152 of New York's Election Law.  That section makes it a crime for two or more persons to conspire "to promote . . . the election of any person to public office by unlawful means".  The DA claimed -- and the judge agreed -- that the unlawful means could be "(1) violations of the Federal Election Campaign Act otherwise known as FECA; (2) falsification of other business records; or (3) a violation of tax law."  

Jury verdicts in criminal cases must be unanimous.  This means that the twelve jurors must all agree on a verdict of either guilty or not guilty. In addition, to reach a guilty verdict, the jury must unanimously find beyond a reasonable doubt that the defendant committed each element of the crime.  

Here, that meant the jury was  required to unanimously find that Trump conspired to falsify records and did so with the intent to promote his election by unlawful means.

Critically, however, the jury in this case was not required to agree on those unlawful means.  So long as all twelve of them thought Trump had committed at least one of the three illegal acts alleged to constitute the unlawful means, that was sufficient.  Some may have thought he conspired to falsify records with the intent to promote his election by unlawful means by violating FECA; others may have thought he did so by falsifying other records or by violating the tax laws. 

Once you take out the sex and Trump, the combination of which turned it into a prurient daily double, the case was actually a boring one.  

There were thirty four "records" -- either checks signed by Trump, invoices from Michael Cohen or ledger entries in the Trump organization's books and records -- the jury had to conclude were false.  And then it had to further conclude that each record had been created as part of a conspiracy to promote Trump's election by unlawful means.  

The evidence of the first was pretty much irrefutable. The checks, invoices and ledger entries were called payments for legal fees where no legal services had been provided. As to the second, the DA was able to prove that, in the wake of Access Hollywood's  infamous "grab 'em by the p**y" disclosure, Trump and his campaign were intensely concerned about any other adverse stories surfacing, which ultimately resulted in Cohen paying off Stormy Daniels and Trump reimbursing the payment.

The problem in the case was whether the pay-off violated New York's election law. 

To do so, the payment (i) had to be for the purpose of promoting Trump's election and (ii) had to itself be made unlawfully. 

The jury obviously concluded it had. 

The first conclusion was hardly surprising.  

Before his 2016 campaign even started, Trump cut a deal with the National Enquirer's  David Pecker, who agreed to warn the campaign of any bad stories in the offing. As part of that deal, the National Enquirer's parent company actually paid for two stories and then did not publish them, a practice known as "catch and kill". Also as part of that deal, Pecker pressed Trump for reimbursement. Because he had already advanced $180,000 for two stories, Pecker refused to fund the catch and kill of the Daniel's story. At Trump's insistence, Cohen then stepped in to kill that story by paying Daniels himself in exchange for her non-disclosure agreement (NDA).

The second conclusion, however, was problematic.

Because . . .

We have no idea whether the jury agreed on what made the payment to Daniels illegal. 

Was the payment a violation of FECA, made in a way that resulted in the falsification of other records, or made in a way that violated tax law? The jurors were free to choose any of these bases and did not have to agree on that choice.

It's possible, therefore,  that Trump was found guilty of a misdemeanor turned felony based on crimes a less than unanimous group of jurors concluded he had committed.  And as a result, it's also possible the conviction was unconstitutional.  Unanimity has always been required in federal criminal trials, and in 2020 the Supreme Court held it was required in state criminal trials as well. Whether that rule was violated here depends largely on whether the required unanimity on an element of a crime can be satisfied where that element -- unlawful means -- is itself satisfied via a menu of possible illegalities, no one of which must be found unanimously.

Following each day of his trial, Trump headed for the media just outside the courtroom.  

Before the cameras, he repeatedly called the judge corrupt and claimed the process was rigged.  

Though he embraced his right not to do so on the witness stand under oath, his courtside comments also repeatedly proclaimed his absolute innocence. 

Much of what Trumps says, on most of the days he says it, turns out to be garbage.  Childish rants at best. Pathological lies at worst.  Following his conviction, however, one thing he said was absolutely true.

"This is not over."

He was right

He has grounds for appeal here and will undoubtedly pursue them.

At that point, the chattering should have ceased.

Because . . .

There was really no news there anymore.

OK, Trump is the first ex-president ever convicted of  crime.  

Add it to his list of firsts.  

The first ex-president indicted on ninety-one criminal counts in four separate jurisdictions. The first president to attempt a coup in the wake of his defeat at the polls.  The first president  impeached twice. The first ex-president adjudicated a rapist. 

Even the salacious stuff was vintage Trump.  Sex with a porn star followed by a blanket denial no one takes seriously.  We always knew he was a sleaze. 

The point is there was not much here that was new. 

But then came MAGA's unhinged reaction.  

And the reaction of its cowardly following.

And all the reasons for not commenting . . . 


Whatever appellate issues exist, the notion that Trump's trial was anything other than a classic example of the rule of law at work is complete nonsense. 

The indictment was issued by a grand jury.  

A motion to dismiss the indictment was denied and the denial was upheld on appeal.  

A jury was chosen randomly. 

The trial court judge bent over backwards in litigating and then ruling on Trump's on-going contemptuous conduct. Any other defendant who behaved as Trump had would have been jailed.  

Trump's lawyers were vigorous in their cross examination of the DA's witnesses. No one listening or watching -- and certainly no one on the jury -- could have failed to understand that the chief witness against Trump -- Michael Cohen -- was a convicted felon and a serial liar.  No one listening or watching could have missed the fact that the porn star was cashing in on her new-found celebrity.

At the end of the day, the documents -- and two Trump loyalists -- did Trump in.  

The accountants' true up as much as anything else proved that Cohen was telling the truth.  The whole legal fees front was a complete fraud.  And David Pecker and Hope Hicks helped seal Trump's fate by making it clear that a plan was in place to kill bad stories and that plan went into overdrive after the Access Hollywood tape.

All of this, however, is lost on MAGA's acolytes.

Texas Gov. Greg Abbott called People v. Trump  "a sham show trial" in "a Kangaroo Court" by "a sitting US president weaponizing our justice system against a political opponent."  Speaker Mike Johnson called the trial "shameful".  Ohio's JD Vance said it was "a disgrace to the judicial system." Ted Cruz called it "nothing more than political persecution." Marco Rubio out did them all.  For him, "what happened [was] similar to what I grew up hearing about in Cuba."  Trump's senior aide Stephen Miller demanded that "every facet of Republican Party politics and power . . . go toe-to-toe with Marxism and beat these communists." To make himself clear, Miller tweeted "Is every Republican state AG opening investigations into voter fraud right now?  Is every House committee . . . using its subpoena power in every way it needs to right now?" 

To call these statements unhinged is an understatement.

They are irresponsible.

On the one hand, they are false.

Joe Biden has weaponized nothing.  People v. Trump was a state case. So is the Georgia election case against Trump. Biden had nothing to do with either of them. The two federal cases have been brought by a Special Counsel from whom he is insulated by statute; that counsel can only be fired by the Attorney General and then only for cause. The one case, of course, in which Biden has an interest is the current federal prosecution of his son in Delaware for illegal possession of a firearm. He could have probably stopped it by just appointing a different US Attorney. But he didn't.

On the other, the rants of Abbott, Vance, Cruz, Rubio and Miller are dangerous.

People v. Trump was rightly considered the least important of the four cases brought against Trump. At base, it was about the tawdry cover-up of sleazy sex by a foul-mouthed fraud who routinely lies for a living. It wasn't in the same league as  the Georgia or DC election cases, which charge Trump with attempting a coup, or the Florida federal case, which charges him with illegally retaining national defense secrets. 

In support of Donald Trump's on-going effort to destroy the rule of law, however, the MAGA-fied GOP has upended all of that. 

Their rants literally mean no politician can be fairly tried in any jurisdiction that opposes him. No judge in that jurisdiction can preside.  No jury can be impaneled.  By definition, any such trial would be a sham, any such tribunal a "Kangaroo Court" where "proceedings deviate so far from accepted legal norms that they can no longer be considered fair or just."  

The idiocy inherent in such a construct is transparent.

No Democrat could ever be tried in a red state.

No Republican in a blue one.

Any that were would be living in Marco Rubio's childhood Cuba.

Presumably with all the "communists" Stephen Miller is so anxious to eliminate.

Nice job MAGA.

Alvin Bragg convinced a jury that Trump's misdemeanor was a legal felony.

And you've now turned that into a cultural one as well.

Tuesday, May 21, 2024


405,000 - 416,000 -- Number of U.S. servicemen killed in World War II's war against fascism.

1945 -- Year President Truman declared "Our debt to the heroic men and valiant women in the service of our country can never be repaid. They have earned our undying gratitude. American will never forget their sacrifice."

360,000 -- Approximate number of Union soldiers killed in the Civil War's war against slavery.

258,000 -- Approximate numbers of Confederate soldiers killed in Civil War.

75-80 -- Percent of Confederate soldiers who did not own slaves and were therefore fighting solely for the interests of others who did.

1865 -- Year former slaves organized earliest Memorial Day in Charleston, South Carolina.

1866 -- Year Waterloo, New York closed its businesses so residents could decorate the graves of fallen soldiers.

1868 -- Year the Grand Army of the Republic's Commander-in-Chief, Major General John Logan, issued his General Order No. 11 establishing "Memorial Day" as  a Decoration Day to honor those soldiers who died in the Civil War.

58, 220 -- Number of U.S. servicemen killed in Vietnam War.

1971 -- Year Memorial Day was declared a federal holiday.

53, 402 -- Number of U.S. servicemen killed in World War I.

36,000 -- Approximate number of U.S. servicemen killed in Korean War.

2,448 -- Number of U.S. service members (including CIA personnel) killed in military operations in Afghanistan through August 2021.

147 -- Number of U.S. service members killed in first Gulf War.

154 -- Number of U.S. service members killed in second Gulf War.

2 -- Number of Americans with any possible chance of being elected president in 2024.

1 -- Number of crypto-fascists with any possible chance of being elected president in 2024.

1--  Number of crypto-fascists now running for president who have been indicted in four jurisdictions on ninety-one criminal counts.

3 -- Number of those criminal trials against any crypto-fascists now running for president  that will not go to trial before election day.

3 -- Number of institutions that have delayed the criminal trials against any crypto-fascists now running for president 

1- Number of former Presidents and members of the Republican Party refusing to endorse a crypto-fascist for president in 2024.

2- Number of former Vice-Presidents and members of the Republican Party refusing to endorse a crypto-fascist for president in 2024.

5- Number of former cabinet officials and members of the Republican Party refusing to endorse a crypto-fascist for president in 2024.

22- Number of former executive branch officials and members of the Republican Party refusing to endorse a crypto-fascist for president in 2024.

6- Number of current U.S. Senators and members of the Republican Party refusing to endorse a crypto-fascist for president in 2024.

7- Number of former U.S. Senators and members of the Republican Party refusing to endorse a crypto-fascist for president in 2024.

6 -- Number of current members of the U.S House of Representatives and members of the Republican Party refusing to endorse a crypto-fascist for president in 2024.

19- Number of former members of the U.S. House of Representatives and members of the Republican Party refusing to endorse a crypto-fascist for president in 2024.

3 --  Number of current Governors and members of the Republican Party refusing to endorse a crypto-fascist for president in 2024.

14 -- Number of former Governors and members of the Republican Party refusing to endorse a crypto-fascist for president in 2024.

4 -- Number of other  current statewide officials and members of the Republican Party refusing to endorse a crypto-fascist for president in 2024.

6 -- Number of other former statewide officials and members of the Republican Party refusing to endorse a crypto-fascist for president in 2024.

3 -- Number of people who won't be president but are running anyway and may help a crypto-fascist become president.

1 -- Number of Kennedys doing this who should know better.

1 -- Number of countries that illegally invaded Ukraine, do not have free and fair elections or any other institutions to hold its leaders accountable, are run by a former member of the Soviet KGB, committed war crimes as part of that illegal invasion, eliminated any dissent against its illegal invasion and has killed a prominent opponent of its war.

1-- Number of countries that illegally invaded Ukraine, do not have free and fair elections or any other institutions that may hold leaders accountable, are run by a former member of the Soviet KGB, committed war crimes as part of that illegal invasion, eliminated any dissent against its illegal invasion, killed a prominent opponent of its war and supports a crypto-fascist for president of the United States.

1 -- Number of major American political parties formally endorsing a crypto-fascist for president in 2024.

1 -- Number of major American political parties that appear to have forgotten the meaning of Memorial Day.

41.3 --  Percent of American voters who say they favor electing an apparent crypto-fascist as president in 2024. 

41.3 -- Percent of American voters who appear to have forgotten the meaning of Memorial Day.

Thursday, April 25, 2024


The "banality of evil" is a famous phrase.

It was born in 1962. 

That was the year Hannah Arendt published her account of Adolf Eichmann's trial in Israel for his role in the Holocaust.  Her articles in The New Yorker and her later book's title, Eichmann in Jerusalem: A Report on the Banality of Evil, gave it life.

Since then, a lot of ink has been spilled figuring out precisely what Arendt meant.

One thing she did not mean was that evil itself was banal.

But one thing she did mean was that Eichmann was banal.

And on that point, she was both right and wrong.

She was wrong in thinking Eichmann was not a committed Nazi and anti-semite. He confessed to as much in both a memoir and an audiotaped interview that were only unearthed years after Arendt wrote her book.  

She was right, however, in describing Eichmann's outward affect, how -- in Erving Goffman's telling construction -- he presented himself in everyday life.  There, according to Arendt, he "was terribly and terrifyingly normal", a staid German who observed the law and did his job. 

Arendt has been criticized for reducing Eichmann to a thoughtless bureaucrat who believed in nothing. In her report she turned him into a careerist:  "Except for an extraordinary diligence in looking out for his personal advancement," she wrote, "he had no motives at all."  This was false. But the fact that it was false has undercut the sense in which Arendt's banality theory was right despite itself.

For the Nazi regime to succeed required not just committed ideologues and rabid anti-semites. It required a commonplace appearance.  And there was no better way to manufacture that appearance than by clothing the regime in the “prosaic careerism" of bureaucratic "thoughtlessness", a performance at which Eichmann excelled.  Not every German in the 1930s and '40s was a Nazi or accepted racial extermination.  But those who weren't or didn't kept quiet. And in maintaining that silence, they were aided and abetted by people like Eichmann, people who could treat the Shoah as an exercise in transit management.

In that world, though evil was not banal . . . 

Banality became a useful disguise.

Today, America is in the grip of its own version of banality.

Last Saturday, the House of Representatives passed a $60 billion dollar aid package for Ukraine. Though more than half of the majority Republican caucus opposed the measure, the Republican Speaker, Mike Johnson, allowed the measure to come to the floor for a vote and it passed by an overwhelmingly bipartisan margin.

After the measure passed, Dimitry Medvedev, formerly Russia's president (2008-2012) and prime minister (2012-2020) and currently its Security Council's Deputy Chair, issued the following statement: "Considering the russophobic decision that took place, I can't help but wish the USA with all sincerity to dive into a new civil war with themselves as quickly as possible.  Which, I hope, will be very different from the war between the North and the South in the 19th century and will be waged using aircraft, tanks, artillery, MLRS, all types of missiles and other weapons.  And which will finally lead to the inglorious collapse of the vile evil empire of the 21st century -- the United States of America."

Read that carefully.  

A high Russian official living in a country that, but for America's money and material would have become a puppet state of Nazi Germany in the 1940s, and but for the west's victory in the Cold War would be living in a communist state where you had to wait on line to get a quart of milk, is literally praying that America's polarized citizens start killing each other. Unable to win an actual war against the United States, Medvedev nevertheless sees victory for his own fascist autocracy -- and not incidentally the absorption of Ukraine --  in America enlarging its war with itself.

Medvedev's statement should be front-page news here in the United States.

But it isn't.

Instead, more than half the Republican members of the House of Representatives -- 112 of them to be precise -- wanted to cut off funding for Ukraine and permit Russia's seizure of that nation, and the titular head of their party, Donald Trump, supported them. 

By all objective measures, Russia's invasion of Ukraine more than two years ago and its subsequent conduct of the war there was and remains unmistakably evil.  

Russian soldiers have kidnapped Ukrainian children from their parents and exported them to Russia.  They have raped Ukrainian women and murdered civilians.  Russia's  army has bombed hospitals, schools, apartment buildings, electric utilities and power stations.  Its propaganda arm has made Ukrainians out to be Nazis and the government has completely stifled any dissent against the war within Russia itself.  It has arrested and imprisoned thousands of protesters. It killed the regime's greatest opponent, Alexei Navalny. And the International Criminal Court (ICC) has indicted Putin for war crimes.

MAGA's affection for Vladimir Putin is no secret.  Neither is its disdain for NATO.  Over the years, Trump has either accepted Putin's lies or ignored them.  He routinely threatens to end the NATO alliance and openly told Putin America will not honor its NATO treaty obligations if he is returned to the White House.  Meanwhile, his MAGA acolytes in Congress have pedaled false Russian claims that American aid dollars are being used to purchase yachts for Ukraine's politicians. Or, as GOP Rep. Mike McCaul recently put it: "Russian propaganda has made its way into the United States, unfortunately, and it's infected a good chunk of my party's base."

The likelihood of America actually descending into the kinetic killing field Medvedev conjures is almost certainly nil.  The likelihood, however, that its current divisions could metastasize and so weaken the country that it becomes a latter-day Rome, divided at home and unable to do much abroad, is not so remote.  The plans for a second Trump administration include mass deportations, criminal indictments of political opponents, the militaristic  elimination of protest and dissent, a gutted administrative state. a restricted franchise and a radically gerrymandered Congress, all packaged in a straight-jacketed Constitution read through the prism of another century and thus incapable of protecting Americans living in this one.  In this world, the fact that some portion of America's electorate will have endorsed Trump's Houdini-like escape from accountability may by then be the least of our problems.

Nevertheless . . .

In the presidential race that he should be losing by enormous margins, the candidate who (i) orchestrated an attempted coup in 2021; (ii)  has now come within a whisker of insuring Russia's rapine and illegal conquest of Ukraine; and (iii) is planning to turn the country into a fascist autocracy starting in 2025, is actually in a close contest.  

Here are the two most important questions America now faces:

1. How is this possible?

2. What is the way out?

In the past, I have regularly upbraided America's political elites for having constantly refused to end Trump's political life.  The Senate that refused to convict him in 2021.  The Supreme Court that refused to remove him from the ballot earlier this year. The lawmakers who side-lined Liz Cheney.

I will un-say none of that now.

But there is more going on.  

We Americans think about politics the way we think about football.  There are two sides, two teams.  Each has its stars, strategists, and game plans. The contest has rules.  And referees. The coaches work the refs. So do we fans. There's a clock. The teams play. One side wins. The other loses. There's always a next time. It's impossible to take the game seriously.  In fact, we are told not to.  We are told "It's just a game."

This background mindset is so ingrained that it has become ordinary, commonplace, well-worn, hackneyed.

Some might even say . . .


And it is, I believe, giving Trump and MAGA a lifeline neither deserves. 

Because . . .

Shouting at the refs, calling the other side cheaters, running out the clock and always (if sometimes only barely) sticking around for the next tomorrow basically describes Donald Trump's political ethos to a tee.  He thinks it's all a game.  And we, all of us to at least some extent, are letting him do it.

There are plenty of folks who think I'm nuts.

John Bolton, for instance.

Like many who actually worked for the man, Bolton is a (now) unvarnished never-Trumper.  Unlike some of them, however, he isn't planning to vote for Biden (he plans to write-in Dick Cheney) and thinks America's institutions more than able to withstand Trump's onslaughts, even if Trump is given a second term.  He is practicing the optimism of close-calls.  It is the view that things will not be worse in a second term because our institutions held Trump back in his first. It ignores the prospects inherent in a different Cabinet, a different (and more MAGA-fied) Republican party, and a different Vice President.

To me it is a bad bet.

What to do?

Sometimes the game gets serious.  

When Jackie Robinson broke baseball's color line in 1946, the nation noticed.  

Because of Robinson, and what he represented, the game became more than a game.  It mattered.  And people -- everywhere -- noticed.

American politics needs a Jackie Robinson moment.

Something that will shake us free from the notion that what we now have going is normal.

Here's mine.

A Joe Biden/Liz Cheney ticket.

Stay with me.

And if you are a loyal Democrat, as am I, don't bite my head off.

Kamala Harris is a good Vice President.  Smart, loyal, a great messenger on the key abortion issue, a brave one on immigration, and fully able to assume the presidency were Biden to die or become incapacitated.  This is not about her. It is, unfortunately, about us.  We need to be stirred -- no, shocked -- out of our complacency.  A politician has to not just tell us it's not a game this year; that politician has to demonstrate it isn't.

"If you want something said," said Nikki Haley recently, "ask a man."

But "if you want something done," she continued,  "ask a woman."

We need something done.


So, if I were Biden, I'd ask Kamala Harris to ring up Liz Cheney with the following:

"As you know better than most, the country is in trouble. Hopelessly divided and entirely too complacent when it comes to all things Trump.  Many hate him. Many don't. But under no circumstances can we afford him . Or tolerate him. Or really risk him ."

So . . .

"I'm willing to step down."

"If you're willing to step up."

"It won't be easy.  You'd be a conservative Republican in a sea of liberal Democrats. You'd have to tolerate us on choice and taxes, on spending that actually supports the middle class, and on the Supreme Court.  And we'd have to tolerate you . . . 

 On the whole issue of succession."

Apart from Bolton's institutional claims, there are also political arguments against this suggestion.  One is that the polls are really not predictive. The Biden/Harris record on the economy, infrastructure and jobs is superb, and voters in actual elections over the past three cycles (one presidential and two mid-terms) have rejected Trump generally and election deniers with particular vigor.  On this view, the voters will ultimately come around, any enthusiasm gap will close, Biden will win a second term and the disaster of Trump will again have been averted.

Maybe so.

But the available data still makes this a close call.  

In the past, at least some of the optimism was based on the view that Trump would be convicted in one or more of his criminal cases.  The three strongest cases, however, are probably not going to be tried before the election and the New York case, apart from what legal experts concede is appellate risk given the need to turn a misdemeanor fraudulent records claim into a felony, has all the tawdriness of Trump's more prurient scandals, none of which have taken him down. If rape hasn't moved the needle, it's hard to see how hiding sex with a pornstar will. 

So we are back to square one.

Kamala Harris should serve in a second Biden administration.  

She'd be a great Attorney General.

Biden/Cheney is not about throwing her under the bus.  

It's about shocking Americans.

And saving America.

Saturday, March 30, 2024


Easter is upon us.

It is Christianity's most important day.

On it, we celebrate the resurrection of an itinerant Jewish preacher who roamed Galilee in the first century of the so-called Common Era.  

We claim a man was risen from the dead.  

We believe it was an act of God. 

It is Christianity's fundamental miracle.

Without it, there is no "Christ".  

Christ is a word, not a name.   

It is a transliteration of the Greek word christos. 

Christos in Greek  means "anointed one". 

It was used to translate the Hebrew word for "one who is anointed".  

That Hebrew word is  "Messiah."

We believe the miracle was witnessed.

Shortly after it happened. 

By followers -- women and then men -- who carried that witness to the edges of their known world.   

Without them, there is no Christ either.

No messengers.

No good news.

No new commandment of love.

It is Easter's other fundamental miracle.

The one that turned a rag-tag group of frightened followers . . .

Into a committee of the courageous.

On Easter, we celebrate Him for saving the world with His Gospel of love.

And Them for letting the rest of us know.

Teilhard De Chardin was a French paleontologist and Jesuit priest.

"Someday, after mastering the winds, the waves, the tides and gravity," he said,  "we shall harness for God the energies of love".

"And then," he continued, "for the second time in the history of the world, man will have discovered fire."

None of us can be God.

But all of us can be disciples.

Happy Easter.