August 2022 Archives

Dear America,

I'm wondering if Donald Trump has finally told a lie sufficient to be the petard by which he is hoist.  He couldn't keep his mouth shut and just agree to the release of the warrant for his Mar-a-Largo estate and the inventory for the articles collected.  By virtue of that consent, he could have at least argued that he had nothing to hide.  But given the history of the negotiations between his legal team and the Department of Justice--which have been going on for months since the Library of Congress announced that over a dozen boxes of documents had been spirited out of the White House by Trump when he left--and the subpoena with which he didn't comply, his capitalized claim that, "ALL THEY HAD TO DO WAS ASK" has been rendered a patently intentional, self-serving lie.  And by virtue of the highly secret markings on at least one of the boxes, connoting the fact that it was to be kept in a highly secured facility that it was never to leave and was to be accessed only by those with the highest of security clearances, Trump's possession of it was criminal not just prima facie, but per se.  Add to that the potential for criminal charges in consequences of his failure to turn the boxes of White House records in question over to the Library of Congress in the first place, it is hard to foresee him "getting out of the water dry," as the Russians say, on this one.  I'm assuming that he will be charged by necessity because of his flagrant disregard for at least two federal statutes, one of which carries a potential sentence of ten years in federal prison.  To quote The Immortal Bard, aye, there's the rub.

It seems to me that the Department of Justice is in a predicament.  Trump has made the profile of this matter so high that no one, not even his most ardent supporters, can avert his eyes from the gravity of it all.  Thus, federal charges virtually must be filed against him, and what then?  His supporters will, in defiant and willful ignorance of the facts of record, claim that the Trumpster is being persecuted.  That will just add fuel to the blaze that his mere existence constitutes.  There could even be more of the violence that we have already seen his large battery of loose canons inflict on the nation: a lunatic shooting up a pizza parlor in Washington, D.C. in search of the apocryphal Q-anon conspirators, January 6th, the one-man assault on the FBI offices in Cincinnati and the like.  But not charging him is not a viable alternative, and if he is tried, it is virtually certain that he will be convicted, and then all hell will break loose.  What a conundrum; a Hobson's Choice.

But wait.  There is a way to avoid any of the dire consequences that Trump's criminal conduct in this case has wrought.  Justice could go ahead with the charges, but offer the defendant a deal.  Trump's ego will prevent him from pleading guilty, and allowing him to walk would render the notion of the potency of federal law a vacuous myth.  So here's what Justice should do.  They should charge him forthwith, and let the charge roil the waters, but only briefly.  The public rumblings by Trump's loonatic fringe acolytes will be loud, but when it amounts to nothing that benefits him, he will see that he's in trouble.  He wouldn't do well in prison for a raft of reasons, and while he's stupid, he isn't so stupid as to ignore the risk he faces if incarcerated.  So the Justice Department should offer him a deal: plead nolo condere, which means that he doesn't admit guilt but he can't fight the charges, and agree never to run for office again.  The court will find him guilty on that basis and put him on parole for as extended a period as possible, and if Trump tries to renege by running for president, or even dog catcher, it's the hoosegow for him.  Let him say anything he wants in public...just so long as he never holds office again.  It will be a Pyrrhic victory for Trump, but the risk of chaos in the country will be sharply reduced, and though he deserves much worse, giving it to him would be a Pyrrhic victory for the nation.  Everybody gets out of the water dry.  That's the best result we can hope for.

In the final analysis, this case is a standoff between good and evil.  Good will not win, but then evil won't either.  We can let Trump blow over like the bag of wind he is, and eventually, our country can repair itself by letting the past stay in the past.  We can hope that by doing so we can redeem our collective virtue as a nation and abandon the implicit prejudice, xenophobia, conservative sanctimony and disregard for truth that afflict us today.  There's a way out.  But it isn't to do nothing.

Your friend,

Mike

Dear America,

Now that the Dobbs gratuitous decision reversing Roe v. Wade...and concurrently its subsequent affirmation in Planned Parenthood v. Casey...is fading from media focus, it is time to talk about the justices responsible for it.  I don't remember the confirmation hearings for Justice Alito, but he seems to have been the ringleader in this gratuitous decision to overrule a fifty year old precedent.  So, I won't comment on his personal integrity other than to note that his role in the propounding of Dobbs makes him just as culpable for its illegitimacy as are the others who voted for it.  As to the others--Thomas, Gorsuch, Kavanaugh and Coney-Barrett--they are not just hypocrites, they are perjurers.  Notably, Chief Justice Roberts more or less accused them of such when he effectively objected in part to the Dobbs decision by noting that the overruling of Roe was entirely unnecessary.  Coming from the malfeasors' fellow conservative, that is a serious indictment, not just a reproach.  Let me explain.

With regard to the assertion that they are hypocrites, all four of them, when asked about their positions on Roe during their confirmation hearings and in informal conversations with members of The Senate stated that they believed in stare decisis, the jurisprudential doctrine that precedent rules except in extraordinary cases, like Brown, et al vs. Board of Education of Topeka, Kansas, et al.  That case, which overruled the 1896 decision known as Plessy v. Ferguson, eliminated the racist doctrine that separate could be equal.  What Plessy stood for was profound, and overruling it was even more so.  It finally implemented the 14th amendment not just superficially but in principle and universally.  That profundity justified bypassing stare decisis as it rectified an enormous social injustice that pervaded our entire society deeply, in fact to the core.  It was such a profound matter that the then-Chief Justice, Earl Warren, urged each of the justices on the court who potentially opposed it or were equivocal at that time to concur in the decision as he argued that such a resonant matter had to be decided by unanimous vote, and that unanimity reified that profundity and gave the decision irrefutable legitimacy.  I would argue that the same is the case with Roe.  Overruling it was not a matter to be taken lightly, and not a cause for any justice to seek out, much less to fabricate the opportunity to violate stare decisis for.  Thus, Thomas, Gorsuch, Kavanaugh and Coney-Barrett went in to the Dobbs case intending to do what they swore under oath not to do--overrule settled law except when it was necessary.  But overruling Roe was unnecessary for them to reach the decision they wanted to reach in Dobbs.   The Mississippi statute in question there made abortion illegal after 15 weeks unless the mother's life was in danger.  That comports with Roe's fundamental finding that the absolute right of a woman to abortion lasted only through the first trimester, which Roe defined as only 12 weeks.  The fact that the statute in question in Dobbs was within the parameters set by Roe just confirms that these four justices lied about their commitment to precedent (and in Thomas's and Kavanaugh's cases other things as well, but that is another matter) and cogently leads in turn to the conclusion that they knew they would not honor Roe's status as precedent when they were asked about it during their confirmation hearings...under oath.  That is not just a lack of integrity, tendentiousness or dissembling.  That is not just hypocrisy.  It is perjury.

As to the merits of the Dobbs opinion, it would seem that, since the constraints on abortion implemented by the Mississippi statue comported with Roe, the decision not to deem the statute unconstitutional would have been correct.  And Chief Justice Roberts said so when he wrote his concurring opinion.  The last lines of that opinion, which analyzes Alito's majority opinion scrupulously, read like a dissent, and are as follows:

"I would decide the question that we granted review to answer--whether the previously recognized abortion right bars all abortion restrictions prior to viability, such that a ban on abortions after fifteen weeks of pregnancy is necessarily unlawful.  The answer to that question is no, and there is no need to go further to decide this case."

Technically, Roberts' decision is a concurrence in Alito's Dobbs opinion.  But in the final analysis, it is a dissent from the Roe portion of the majority's decision to indulge in something conservatives have complained about for as long as I can remember: judicial activism.  Apparently their righteous indignation was a function of who's ox was being gored.  Robert's, their leader, acknowledged that.  Impeachment is in order.

Your friend,

Mike