Looking At Women Looking At War (Ukraine)

[I talk about Trump's tariffs here. Also, an expanded version of this entry is found here.]

Victoria Amelina was (sigh) was a Ukrainian author and poet. When Russia invaded, she became a witness. This book is an unfinished account.

[S]he was thinking of a different kind of literary project: a book about the women who, like her, were taking huge risks to document the war. She would write this book in English, and in it she would deploy a purposeful jumble of interviews, diary entries, reports from field missions, Ukrainian history and even poetry. Such a book, she believed, wouldn’t only play its small part in holding the perpetrators accountable; one day, it would help to give “lasting peace a chance”. 

Victoria died from injuries after being injured by a Russian attack in mid-2023 while at a pizzeria. Her friends worked off her unfinished manuscript and notes. A collection of her poetry will also be released. 

Sirens:

Air-raid sirens across the country

It feels like everyone is brought out

For execution

But only one person gets targeted

Usually the one at the edge

This time not you; all clear

[A woman holds a photo of Victoria Amelina at a memorial service in Kyiv on 4 July 2023. Photograph: Alex Chan Tsz Yuk/Shutterstock]

The first section is a personal account of her reactions to the beginning of the invasion in 2022, including her trip back from vacation, leaving her son in Poland. His father was the head of international business and was not around. His funds helped her be independent. 

She opened her apartment to refugees and joined a group that reported war crimes and the stories of victims. She died shortly after taking part in the release of a war diary that she personally found buried. The author was killed by the Russians.  

Victoria Amelina left an twelve-year-old son and a message about the importance of telling stories, remembering history, and looking to the future. She noted that the law should be about people, collecting information in hope for future justice for victims. 

Ukraine fights on even if our nation is failing them.

Manhattan Thinks About Prosecuting Trump

The Manhattan D.A. has received strong criticism for apparently deciding not to prosecute Donald Trump for business-related issues.  Will he find a way to relieve the pressure? 

I don't claim to know the intricacies here, but people in the D.A.'s own office strongly opposed his decision. There is a basic strong feeling, that to me more than "wanting justice meted out and thirsting for prosecutorial schadenfreude" that is "gross," to cite usually on the ball Anthony Michael Kreis.  His company was prosecuted.  His lawyer and a top member of the company were as well.  Trump is free and clear?  

Back in 2018, Rick Hasen -- the election law guy -- wrote how Trump's lawyer being prosecuted directly put him in the crosshairs.  Of course, the fact Trump actually is guilty of things does not actually seem to matter. There is always a reason somehow for him to "face no penalty," including in two impeachment trials. 

But, see that link for the clear path to showing the Stormy Daniels matter violated both the law and campaign finance laws.  Kreis on Twitter said it was a major "reach" to use it as the Manhattan prosecutor is reportedly in the process of doing.  I will not put much stock on yet another "we go him!" sort of thing, but I put more stock in the overall matter. 

At this point, the charges related to election subversion that may be brought in Georgia or by DOJ seem much more serious and important.

That's fine, and I agree with Rick Hasen on that too.  But, that doesn't mean the proposed felony charge lacks grounds or reason.  The NYT article cited implies it is a reach.  Who knows.  Maybe, it will be deemed one in part via a form of the qualified immunity business where something is obviously bad but since it's novel (in part since no one actually did something so bad, so there is no case law on it), there is legal immunity.  

I still do not think it is a reach.  I am pretty sure that there is evidence that Trump violated some minor law (his professional life has been bending the rules, breaking them from time to time along the way) during his Stormy Daniels scheme.  The fact he keeps on getting away with doing this, other than some financial liability from time to time, is not a grand reason for him yet again to do so now.  Cohen was imprisoned!

Rick Hasen almost five years ago (well, August 2018) explained how it was clearly part of a means to hide information for campaign reasons.  Trump might have been just usually his usual technique, but he was running for office.  It was therefore campaign-related.  I realize Cohen was prosecuted for federal crimes.  But, the overall scheme is relevant here.  It is not some big major reach that in the process it makes it a state felony.

The ultimate penalty for this "minor" felony (a felony was traditionally deemed an "infamous" crime, but now there are felonies deemed trivial, one supposes) might only be a few years. 

Still, the overall principle matters.  First, campaign finance integrity is a very important reform in recent years.  Multiple government officials and those running for office (the latest one George Santos) have been caught in this vortex.  There have been some serious efforts -- admittedly threatened repeatedly by the Supreme Court -- to address this issue. IT MATTERS. 

Second, Trump using sleazy cover-up methods to avoid problems for his sexual sleaziness flags a key concern regarding his campaign.  Lots of people were disgusted.  Now, some just swallowed and lived with it.  Still, as with the "grab their pussy" stuff, this was a serious matter that flagged how unfit he was.  There was a continual "oh we got him!" feeling that THIS sort of thing surely would deny him the presidency. Oh well.

It still matters.  It underlines the importance of his breaking the law -- if that is what he did -- to cover up his sexual activities.  The Stormy Daniels relationship was voluntary but he did his usual bend/violate the rules (including laws) bit in the process. Michael Cohen was imprisoned.  And, the same overall mentality led Trump to abuse women. Since he kept on fucking getting away with it.  So, no, I don't see this as merely trivial.

(ETA: See also, this Washington Post analysis that puts things in the context of the campaign. There is a somewhat less "people say this is a stretch" quality there as compared to the NYT.  

How much the moment in question would have mattered if other things -- as they tend to do, yes, but not quite this way -- didn't pop up is unclear.  But, it was clearly a campaign matter.  The report notes that the exact nature of the proposed indictment is unclear.) 

OTHER PEOPLE get harmed when they break the rules, including a young congresswoman who was flagged by Nancy Pelosi at the time as a rising star.  The case there largely was upsetting since it involved consensual activity, if at times some bad judgment, but I did see some evidence of violating ethics rules involving people she was involved in professionally. 

Georgia and the feds can continue their investigations and prosecutions. Manhattan can still prosecute Trump a more minor case that is a "sideshow" (to quote me elsewhere) only in degree.  The Stormy Daniels Affair (in a legal sense of the word) is a symbol of sorts that reminds us of what sort of person Trump is.  This includes someone who people always find a reason to oh so reasonably find grounds to get off the hook.  

Convict Trump in an impeachment trial? Oh no.  But, we aren't getting him off the hook!  No no.  Let's have a special 9/11 type ... oh wait, you are doing it the wrong way.  Criminal prosecution (since we can't do it while he is in office ... oh now he's running for office) ... no, there is a problem with how you are doing it.  No, this is too trivial.  And, on and on.  

It's gross.  

===

ETA: I'm going to tack on an aside.  Senator Mitch McConnell got hurt in a fall.  Jenna Ellis, Trump's former lawyer who just settled as part of a censure agreement for spreading election lies, for some reason posted a video of a turtle (get it?) falling as a joke.   

As cited by the headline ("cruel"), I saw more than one liberal-leaning source (including the guy behind Talking Points Memo) singling this out as distasteful.  You know, calm down.  Ellis is not someone many will feel sorry for, but a negative tweet I saw also suggests someone at Stephanie Miller's show also made a joke about him.   

Reports are he is okay.  The joke is infantile, but since he's okay, that is basically what it is.  There have been many more nasty things out there so this seemed to be a bit of virtue signaling.  McConnell has caused a lot of harm and some people are a bit mean here.  Okay.

I'm more concerned about other things myself.  I don't like the whole "punch a Nazi" thing where some actual Nazi being punched in public was cheered on.  Inciting violence might not be applied "reasonably" there, any more than harassing public figures in public places.  I also do not like the ridicule of religion I sometimes see, such as sneering about magical crackers (Holy Eucharist) or something in one case.  

The turtle thing was petty and singing out it seemed as much about sneering at Jenna Ellis as anything else.  

Supreme Court Watch: Title 42 Edition

"Title 42" refers to a specific section of the federal code regarding the power to block immigrants for health reasons. The specific reference in recent years involves doing so with respect to COVID. It is controversial and argued to be basically an excuse to have a more strict entry policy.

The whole matter is complicated with various moving parts.  The question often came up during Psaki's press briefings and likely still does though I'm less interested in watching her successor.  It also is the subject of multiple lawsuits, which results in various complications with one court blocking it while another blocking an attempt to wind it down.  

Chief Justice Roberts earlier this month put in place an "administrative stay" regarding a court blocking it, on the petition of some states (yet more state usage of the courts to fight policy, which has gone in third gear or whatever the metaphor is in recent years).  Some carefully noted this was just a procedural move.  For instance, Sotomayor this week lifted her temporary stay in a more minor dispute involving public trial questions.  

[I will continue my campaign here regarding the importance of clarity. Sotomayor should have briefly explained what the case was about and why she chose to refuse the stay request.  If something is going to be in the lightly used "order list" page -- not some catchall order list or mere docket tick-off -- we should get some clarity on what is happening.]  

Nonetheless, the people might not be too surprised (to the degree they pay attention or are not just lost -- the number of moving parts, in this case, makes that quite possible) that the Supreme Court DID grant states' request for a hearing.  The net result might just be to kick the ball forward -- and cynics might argue [see the first link] that Biden is not overly in a rush here specifically -- but delays matter.  See, e.g., the Trump financials.  

The specific grant here is for "procedural questions" regarding the right of states (which critics argue have no real grounds to do so) to intervene in the lawsuit.  The question does not only affect this one case.  IF the states get to do so here, there will be an increased ability for states to intervene, and thus more policy disputes will be decided in key ways by court action, currently with more conservative judges in various circuits.  

The immediate effect (though the brief order is vague and critics argue misleading on the point) is to hold up the ending of Title 42 as applied.  Again, the presidential statement noting the time will give Republicans a chance to join with Democrats to formulate a sound immigration reform (good luck with that ideal result) doesn't change one's mind too much, it is unclear how much this really bothers the Biden Administration.  A few Democrats support keeping Title 42 as I understand it, and you only need two senators (coming up) to matter after all.   

There is a joker.  The vote was 5-4.  Now, the expectation there would be that Roberts would be the fifth vote since at times he opposed what he argued to be procedural or substantive (see Dobbs) overreaching.  Barrett was the fourth vote with liberals in a few cases with religious or death penalty aspects.  No, the fourth vote here was Gorsuch.

Gorsuch penned a short dissent joined by Jackson with Sotomayor and Kagan simply noting they would not grant the petition.  He ends with a statement that they are not "policymakers," which is a bit hard for me to take given the various things he did.  I'm inclined to agree with one analysis that notes that it seems on par with his general opposition to federal COVID policy. This includes by use of the policy-making "major questions" doctrine.  

The cert grant after all will block the carrying out of a D.C. court order to end the Title 42 policy.  Gorsuch notes the federal government terminated Title 42 orders because of a finding the health need elapsed.  So, any opposition would merely be based on concern for immigration generally.  But, that is not the grounds for Title 42.  So, the states have no case.

His position is tempered granting he is stating no opinion on the claim that the administration did not properly follow the rules in ending the policy. A telling point!  If the process was too slipshod, how do we know the determination that the health need is no longer in place was correctly obtained?  He also notes his sympathy for the disruptive consequences of ending the policy but that is not enough.  I'm not sure.  Maybe, the law factors that in when ending this specific policy.  

I am unsure if there simply is no argument for the states to make here though agree they should not have taken the case.  Some reason to doubt should not be enough here.  There should be a very clear case before you hold up actions of the lower courts that in this matter the Biden Administration did not oppose.  I do think besides selective Gorsuch sanctimoniousness, there are some dubious "merits" arguments mixed in.

I think Sotomayor and Kagan were correct not to join in though I understand why Jackson did give the overall effect.  Got to ally with those conservatives when you can -- you will be hanging with them for a long time. Still, I fear Gorsuches bearing gifts and as some note, his language might come back and bite ya in another case where we want to uphold administrative action.  And, I question if the two-page dissent adequately addressed the complexities of the case.   

One final tidbit.  The order and dissent are found in the lesser known "opinions related to orders" page (since Gorsuch wrote an opinion).  It is not in the more familiar (even to some court watchers) "orders" page.  The order is an important act that in a major way affects federal policy.  It should be clearly found on the website.  It actually probably should be announced in a press release.  One more bit of opaqueness.  

==

There is an execution of a trans inmate scheduled next week unless things are held up.  I tossed in above the Sotomayor order.

ETA: The woman involved in that case has been found dead.

==  

I saw something interesting on C-SPAN involving a book (A Constitution For The Living) adapting Jefferson's idea that constitutions should be limited to a time period when statistically half living would no longer be around (19 years at the time). An interesting concept to have new constitutional conventions (1825, 1863, 1903, 1952, 2022), but I did not really find the writing and some of the choices that good.  Also, it seemed the author did not catch a few mistakes.  A worthwhile misstep as a whole. 

Chief Justice's Year-End Report

The other matter is the end-of-the-year report for the federal judiciary, put out each year as a sort of New Year's Eve present by the Chief Justice.  This tends to have a specific theme (a historical event provides a "cute" precedent) while ending with some statistics of cases tried and the like.  

The historical event in this report is not as quirky as sometimes used.  This time we are provided events arising from the 1950s Little Rock and the judicial protection of equal rights (did Breyer -- who sees Brown as the Supreme Court's greatest moment -- pick this?).  The reader can decide if this is any implicit response to the current controversy over the Supreme Court.

There is a bit about how the district judge was threatened and "the importance of rule by law instead of by mob."  Reference is made to a federal judge whose son was murdered.  "Congress enacted the Daniel Anderl Judicial Security and Privacy Act to help protect judges and their families."  Daniel was the murdered son.  

The end of the report is merely nine pages long (so it was last year) and by the chance results in a rare drop of something on Saturday.  The last five pages concern the workload of the federal courts.  As Amy Howe notes, nothing about the leak investigation or anything.  

[As House Democrats look toward losing control in a matter of days, some end-of-the-term stuff is dropping, including Trump's tax returns. These things will take a lot of time to fully process.  I surely haven't.  

This includes over a hundred-page transcript of Ginny Thomas answering questions for the 1/6 Committee.  As noted, it wasn't under oath, but it still was illegal for her to "deliberately provide false information to Congress."  I gather -- imagine this for the chuckles -- if this ever came in front of SCOTUS, her husband probably would recuse.  No promises there, however.]

One statistic is that "122,872 persons were under post-conviction supervision on September 30, 2022."  It is comical a release a presidential list of people fully pardoned that dropped yesterday had six names.  Something must be done to have an institutional system in place that provides much more than that!*

The year, if only part of the term, of the tainted court, thus ends.

===

* At times, a few responses to my comments on the presidential pardon power argued it should not exist. 

This unnecessarily tosses the baby out with the bathwater.  Maximum sentences are not a great policy and facts arise that warrant commutations, pardons, and amnesty (a special category that includes something like taking away the threat of punishment of Vietnam protesters).

The "monarchial" to take one word used flaw is that there are not enough checks and balances.  The New York Constitution, for instance, allows for legislative limitations though it does not seem that the governor is blocked too much with the current procedures in place.  Other states have more strings as a constitutional rule.  

On the other hand, though you can find various "favorites" getting benefits here, I am not sure how much in practice that is a problem.  Still, as seen by the Trump pardons and various infamous ones over the years, problems arise.  A means to override a pardon (perhaps under set guidelines by some supermajority unless the guidelines are blatantly not met) might be a good idea.  As the link notes, there are already judicial alternatives and so forth. 

One op-ed accused President Biden of "cowardice" for not doing more to reform the pardon process. Congress could act here too, including putting in place a pardon board in a more independent location (there is a fear it now is too influenced by the prosecution side).  The president would have the final say, but the bureaucratic details matter.  

I think "cowardice" is somewhat unfair.  To me, it is more a matter of inertia and choice of political options. Also, it is in part that Biden is himself not fully concerned about change. That is not "cowardice," though you might oppose the weighing of values here.  Also, any citation of how horrible he is on criminal justice should factor in his judicial picks and what he did do, especially in the context of the median.  

"The reckless rage of the lawless" (But, I'm SOOOO Concerned!)

Whether this will ultimately be a criminal prosecution or not is far from clear, though nothing suggests the Justice Department has ruled the possibility out. Regardless, those of us outside of government will likely not get the immediate gratification of a quick resolution. The investigation from here is likely to vanish for a while.

Yes. There has not been much "immediate gratification" except a continue series of "look at that!" sort of things that after a while gets tiresome. Fine. Yeah. That's something. But, what is the bottom line? Are we really somewhere ahead of where we were before? Or, is this a not that exciting extended process for which success will only be seen in hindsight down the way? 

The search of Mar-a-Lago for national security documents is a story that continues, now with a partially unredacted affidavit to help us obtain a bit of clarification. Another story getting somewhat less attention is that whole Secret Service mess, including deletion of key data.  What will be the ultimate justice here?  Trump was impeached twice and here we are.

One continuing difficulty is that idea that doing anything major here is so very fraught.  This is the case even when people agree Merrick Garland and so on (after all we have  TRUMP SELECTED FBI director) can be trusted and that Trump did bad things. Note this op-ed by the usual old guard:

William S. Cohen is a former secretary of defense and former Republican senator from Maine. William H. Webster is a former director of the FBI and the CIA and a retired judge of the U.S. Circuit Court of Appeals for the 8th Circuit.

They say basically the right things, but the assumed stakes underline why going against Trump (or expanding the Court or)  is supposed to be so dangerous.  

Garland’s actions upholding the principle that no one is above the law reaches well beyond our borders. Surely, he is not eager to be the first person to initiate criminal proceedings against a former president. To do so will establish a woeful, even if justified precedent, and possibly will set off a level of civil strife we have not witnessed in more than 150 years.

Two things here. As someone flagged online when I cited this, why is this a "woeful" precedent?  Yes, on some level, it is  not happy. But, on another, if is a good precedent, a precedent where wrongdoing is answered and justice is applied.  Not doing anything after this "unprecedented" wrongdoing occurs would be much more "woeful."  

The second thing is "more than 150 years" would be before 1872. So, the "level of civil strife" that will arise when a (limited) prosecution of Trump finally comes (is "initiated") will be worse than Reconstruction.  Or, I might add, the urban riots and assassinations of the 1960s.  We can cite other moments as well such as the two Red Scares or the civil strife that arose during the Great Depression.  And, so on.

These are very serious and violent moments in our history.  The KKK or some form of racist violence poisoned the South with murders and mayhem. Is it REALLY likely that any reactions to criminal prosecution (which quite honestly will not likely lead to him in an orange jumpsuit) will lead to reactions comparable to that?  The overheated fears here are a tad ridiculous.  And, if anything, a form of incitement.  

I will not argue here that nothing will happen. We recently had a prosecution for the attempted kidnapping (or worse) of a sitting Democratic governor.  Violence against government officials has been attempted and in a few cases accomplished.  The Capitol was invaded. And so on.  But, a sense of historical perspective should also be recognized here.

The op-ed does not say we should not act.  It ends with the statement that Garland "cannot tailor his judgment to accommodate the rage of the lawless." Still, the op-ed -- from even the sentiments of these two -- troubled me.  Others more partisan take things further.  Democrats are the unhinged ones, trying incite partisan hatreds against Trump for their own ends.  Any violence is basically their fault.  And so on.

I'm tired of these people who seem to be almost crying in fear about what will happen if we do what bottom line we should do to answer the crimes and violations of norms of Trump and his minions.  And, yes, I do also point to those who cry about the idea of court expansion, as if doing nothing is of no harm.  Such a reminder is particularly easy when the person in charge of prosecution is Merrick Garland. 

All Rise: Series Finale

Time to find a new series. In part because of internal problems, All Rise was not renewed for a third season. So, yesterday, with help by some of the cast tweeting, was the last episode. The title of the episode was "Yeet." Okay. (Looking) Okay.

The episode had to rush some to sew things up (we found out where various people were going and the answer to at least one mystery), but it was overall enjoyable. I think a defense attorney dropping a video anonymously to the police that showed their client is guilty is probably unethical. You sometimes know that your client is factually guilty; the other side has to prove it with the evidence they have available. Also, we never received an update of the judge's plans to propose to her girlfriend. Unless I missed a ring on her finger at the end.

The show was rough at times, but was a superior effort to promote diversity and serious progressive values while believing in the ability to get justice (up to a point) in the system. Plus, it had a very good cast. And, in a recent episode, even a prosecutor that didn't seem very likeable came off as someone we can get behind, helping Luke. Good luck.

All Rise

As noted, I started to watch Perry Mason, the new HBO series. But, it is rare for me to watch new programs -- has been for some years now. One I tried at the beginning was the new courtroom drama, All Rise, with a new young black woman judge with a diverse cast. One nice familiar face is the prostitute from China Beach (tempus fugit) who is now a chief judge.

I thought it okay but not "must see" with a bit too much of a heavy hand. So, didn't keep up. I later on saw the COVID-19 episode and thought it well done. Caught some more episodes (only some available for free) on demand. Same. It is pleasant enough time wasting with something to say. The ones I saw all had basically a happy ending which is a tad unrealistic for what is supposed to be a realistic urban court drama. It was renewed.

Friday Night Fun at the Justice Department

Bully Barr, how do you obstruct justice? Let us count the ways:

1. LIED about the contents of the Mueller Report, claiming that it found “no evidence” of colllusion or obstruction of justice

2. Attempted the redact material in Mueller Report which reveals that Trump DID collude

— Asha Rangappa (@AshaRangappa_) June 20, 2020

Oh there are a lot more, with a break to drink some more wine. It is probably my fault.  I left Twitter shortly before midnight a few weeks ago, and then the Supreme Court handed down a 5-4 order regarding Big V rules for churches.  I left early (though did check later on) yesterday and we have a whole new Friday news dump affair: Barr announced that the U.S. Attorney for the Southern District (traditionally a sort of independent wing) was resigning and some unqualified (never worked as a criminal prosecutor) would be nominated to fill his spot. Meanwhile, following a norm now, the usual line of secession would be skipped over and an outsider would fill the spot temporarily.  On Twitter, Chris Geidner noted this was due to happen around July 4th.

This is one complicated affair though the basic thing smells, including the timing and numerous possible reasons why Trump would want the other guy gone, replaced by some flunky (tainted connections have been cited too). Another complication is that Geoff Berman (Trump donor that seemed safe) said, "um, I didn't resign." He tossed in that he would continue investigations, a big flag that his "resignation" might be a pressure job in response to them. He was offered various plum other jobs in Justice, but turned them down. His current position is a plum spot to, plus he probably has some ethics regarding overseeing his work and not being pushed out by crooks.

Since this is the Trump Administration and 2020, there is one more major wrinkle.  Berman was appointed by judges. Yes, this is a thing, as we saw back in the independent counsel days.  One major thing this Administration does is slow walk appointments and confirmations.  U.S. attorneys being a special animal here, the law provides a means to have temporary attorneys appointed until one is confirmed in the Senate.  The law says that such a U.S. attorney would serve until their replacement is confirmed. The OLC back in the day determined that the President (if not the AG) could fire them, but this is apparently dubious, say various legal minds.

Apparently, John "I won't testify" Bolton's book coming out (with him suddenly being all "Trump is horrible! Congress should have done more!" ... fucking asshole)  is not enough.  BTW, reports are that he will be on Stephen Colbert. I tweeted repeatedly to him that is wrong. Don't give that asshole a platform. Get Dana Carvey to do his Bolton impression.

ETA:  Ha ha.  First, more on the overall issue and how it influences two major pending Supreme Court cases by Leah Litman here with typical Litman verve.  Second we have this today after I posted:

Barr says Trump has now fired Berman. This, Barr says, is authorized by 241(c). Notably, however, Barr has shifted, and is allowing the Deputy US Attorney to serve as the Acting US Attorney — and not, as per last night’s release, the NJ US Attorney.

Trump later said that he has nothing to do with it -- it's Barr's affair. But, it can't be -- the specifics here at least require Trump to fire the guy. As seen during the impeachment process, Trump seems to have a tendency to lack the guts to directly fire people.  Ball in Berman's court, I guess.

.....

Latest: "By the end of the day, Mr. Berman’s handpicked deputy, not the administration’s favored replacement, was chosen to succeed him for now."  Berman: "that will do pig." Agrees to step aside.  The temporary replacement being in-house is important since even lapdog Lindsey Graham is wary about the guy picked to replace him. To remind:

Trump on Saturday fired the federal prosecutor whose office put his former personal lawyer in prison and is investigating his current one, heightening criticism that the president was carrying out an extraordinary purge to rid his administration of officials whose independence could be a threat to his re-election campaign.

The whole thing still stinks and makes the Trump Administration (including Barr) look like corrupt clowns.  Recall that the replacement is easier to remove than Berman given the special appointment issue is lacking.  So, will we have some more clowning later?

Election 2020 Update

Yesterday's Democratic debate was big since Michael "how in the hell is he a thing?" Bloomberg was involved. The general conclusion is that he did horrible with Warren really leading the way (though others joined and she didn't just "go after" him). Good thing. The necessary "he's better than Trump" aside, he has too many "Trump-lite" qualities. It is ridiculous to think of him as a credible general election Democratic candidate in 2020. And, I fear it, including turnout. Sanders, frontrunner, came out looking good. But, long term, his issues -- including a ceiling -- stands. Let's see how things work out after early March.

After it all, what was the value of the late intervention in support of Roger Stone that tainted the Justice Department and even scared some federal judges enough to make it public they were talking about such things? Loyalty to Trump and a message to others, not just the immediate Trump co-conspirator (key line by the judge: “He was not prosecuted, as some have complained, for standing up for the President, he was prosecuted for covering up for the President.”). Meanwhile, a crony moves into a key intel position, reaffirming Trump's mentality there. If one thinks about it, it's scary, and Republicans totally own it.

Trump also did his usual favored crowd pardons, including reportedly letting an old friend from NYC free of over 100K left on his fines. Ha ha. On some level, one can argue the corrupt governor from Illinois served enough time etc., but we aren't taking these on a vacuum. His pardons overall were trolls and/or benefiting friends. Net, this is a bad path for justice.

Impeachment Update

Early this year, I was concerned the Dems were slow-walking or even bad mouthing (don't gaslight me, ma'am) impeachment, but now there is talk (even from Chris Hayes! though he admits it's sorta a no win) of them "rushing" it. I shake my head when I'm not hitting in on the desk. I fear the impeachment grounds will not be detailed enough (we have media threats such as this that are what, also rans?). But, the latest thing threatens the 2020 elections and having a trial in the middle of the primary season seems dubious.

The House Judiciary Committee Staff put out a helpful fifty or so page guide to impeachment. The House Judiciary Committee put out a 300 page report on the Ukraine Extortion Racket investigation with a helpful summary. Comments I have seen about the process in the Judiciary vaguely speaks of other investigations. Well, there are multiple ones. The guide itself brings up emoluments in general as a constitutional concern as well as abuse of the pardon power. Judiciary, which has open-ended power here (cf. intelligence with more limited concerns), needs to at least cover in some fashion all the ground here.

We have a "non-publican" [the label fits but dubious on the details there] occupant and at least need to use existing means to address him.

Jeffrey Epstein Commits Suicide ... oh well

In the march of "what else happened?!," the news yesterday was that arrested (maybe this time he would get real punishment!) Jeffrey Epstein -- "good! he didn't get bail!" -- committed suicide. He seemed to have tried before but his suicide watch was brief. The "oh well, just another victim of the system" takes are coming in. But, very rich defendants with friends in high places are not typical and this "oh well" doesn't quite wash. Conspiracy? Eh. But, that handwaving is too easy in this case. Plus, while investigations occur, this can't be allowed to close off a full true accounting. Epstein in no way committed his crimes alone.

Double Jeopardy

[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb..."

While the Supreme Court made clear that it will clean things up regarding the incorporation of the Fines Clause, it is somewhat surprisingly unlikely to overrule the "separate sovereigns" rule regarding double jeopardy. Some flagged this case (and Kavanaugh's potential fifth vote) during the confirmation battle of the sex offender justice (so-called).  But, it is rather unclear if that was a major concern.

Plus, when the issue was Puerto Rico (part of the federal government, so the rule doesn't apply regarding federal/commonwealth prosecutions), RBG flagged her interest in ending it.  Before it seemed like backstop to Trump pardons (someone like Manafort could be prosecuted for state crimes), many of the same people upset might have agreed the rule was dubious. It seems like trick to be able to subject a person twice for the same offense. That is, until there is a push for the feds to prosecute some civil rights crime after a state acquittal (e.g., the Trayvon Martin case).

But, the justices went full bore (Thomas voiced some opposition to the rule too but doesn't ask questions) on the defendant's lawyer with the exception of Ginsburg and later on Gorsuch.  During the Fines argument, Gorsuch sanctimoniously spoke of how most of the incorporation cases were settled back in the 1940s. No.  Other than the First Amendment, the 1960s (e.g., the right to a lawyer) had quite a few.  Here he found it strange the federalism resulted in two bites of the apple in a way that arguably burdened liberty.  When else does that occur?  The government provided examples such as taxes. Overall, as noted by of all people Kagan, the rule furthers federalism, which ultimately involves state power.

It looks there is a clear majority for the idea -- to quote a 1950s pre-incorporation (yes, the 1950s) -- case upholding the dual sovereignty rule that "Precedent, experience, and reason alike support the conclusion" warrants protecting it.  Precedent was cited by Kagan and Breyer as well as newbie Kavanaugh, who cited his strong barrier for changing it.  He also -- against an unwise one-note originalist defense -- noted that stare decisis is an originalist principle.  Yes, which underlines the ultimate limited nature of that whole matter. Plus, clearly few justices are that into it.

Conservative Senator Hatch provided an amicus brief in support of ending the rule in part because of the expansion of federal crimes which reach much more areas that traditionally would be state only.  Consider that even the assassination of JFK was to be a state trial.  There was reference to this concern during the oral argument but it is unclear how much ending the rule will matter.  If the same offense (let's say an abuse police action) will result in two possible prosecutions because of what exactly is charged, however, we still seem to be hairplitting, aren't we?  There is a policy to take into consideration a state prosecution, but we still had double prosecutions of various mass shooters, for example.

In that Puerto Rico case, Justice Thomas cited his concern about applying the rule to cases involving tribes (which already are a limited "sovereign" as is) while also joining RBG's wider concerns.  The bigger issue for the justices, aided and abetted by the originalist argument relying on just that issue (ultimately, he was left saying you could treat domestic cases differently, which is true, but he opened the door) was first applying it internationally.  The nation does have to apply the same rule and the prosecution cannot be a sham.  But, that need not occur for problems to arise, especially regarding punishment and prosecutorial resources.  There is not an exception for a richer sovereign to prosecute again because the first one had to deal with limited resources and perhaps a less skillful attempt.

I was sympathetic regarding ending the dual sovereignty rule since it does seem unjust to try a person twice for an offense.  The idea that it isn't the same offense because a different sovereign is involved doesn't quite gel. After listening to the oral argument, didn't really change my mind.  The factors discussed above suggests too that ending the rule can be done in such a way that the best case scenarios for applying it will arise seldom. Rules often have exceptions. This includes the concern about some rush to the courthouse, where a state or the federal government will lose out in the process. Some mechanism should be possible to avoid this or at least temper the concern. And, with states so much more obligated to follow national rules, including as applied to criminal justice, precedent arguably goes another way too. 

Finally, it is unclear how often this sort of thing would come up, especially if one criminal event can already be the subject of multiple prosecutions, which we can assume can be both state and federal in nature. Precedent is an important thing but so is basic justice.  It is unclear to me that the rule, all things considered, flows to the former. 

Kids Taken From Their Parents & Withdrawal from UN Human Rights Council

ETA: As I wrote this, there was talk of some executive order (though we were assured this couldn't be done and no policy change was in place anyway -- who are we at war with again, Winston?) in the works or something.  One was released that seems to have some effects though how much is unclear.  One problem would be its intent to change rules that only allow short term detention of children. And, what about the over 2,300 (2300!) children already separated?  People have cited loopholes in the text. Again, fine print and good faith of the parties.

The latest Trump cruelty, involving children as young as babies (Rachel Maddow broke down reporting them being in "tender age" detention centers), involves separating children from undocumented immigrants.

As Chris Hayes, who also took this very personally with a new child and all (and because he has human empathy), tweeted, it is a form of ransom. Pass my preferred immigration policy or else.  This is an optional but possible approach given long term policy, which doesn't justify the usual Trump "it's the Democrats fault" b.s.  It does show the problem with such policies and institutions writ large; there is always a chance at some point a bad actor will arise or a tragedy and so forth.  It's a loaded gun in the dresser drawer.

Every Democrat in the Senate signed on to a bill to specifically deal with this tactic, but thus far, concerned blather aside, no Republican co-sponsors are on board. Darn thing even respects local discretion over child care policy, so federalism types should be happy (I know, I know).  There is talk that there is pressure in the Administration -- given the blowback on this matter has been huge though unfortunately recent poll numbers suggest not enough -- of changing the "zero tolerance" approach.  I would suggest looking at the fine print and remembering this was a self-inflicted wound.

And, the loaded gun is still there. It is fine to think long term though with this asshole and his enablers in power, I question what sort of legislative solution is possible.  The issue is bigger than this one matter and we can go the "Obama was bad" route some (ignoring the DACA and Dreamers stuff etc., expecting him to do more, as will occur when the sane regain power). But, like with torture and waterboarding in particular, lines should be drawn regardless. This thing is just too big. There will always be a lot of executive discretion. But, certain lines should be there.

Plus, can we cut the bullshit about how "the left" or something are exaggerating?  At some point, the level of the problem needs to be recognized and the realization "both sides" aren't the problem on a basic level. We had this with a previous statement involving "animals" that people assured us only covered MS-13 gang members.  Now, in gambling in Casablanca level news, we have this:

"Democrats are the problem," he wrote. "They don't care about crime and want illegal immigrants, no matter how bad they may be, to pour into and infest our Country, like MS-13. They can't win on their terrible policies, so they view them as potential voters!" he wrote.

People at the time put Trump's "animals" comment in a wider context, even just going by the immediate context of the remark. But, you even had people like Kevin Drum of Mother Jones (who back in the Bush Era, the things I recall, at one point noted he wasn't too worried ... the Democrats would get back in power, and things would go back to normal) saying we shouldn't die on that hill. Dog whistles this blatant are easy to catch.

But in 2009, President Barack Obama decided to rejoin the international body, out of a desire to reform it. “With others, we will engage in the work of improving the U.N. human rights system,” then-Secretary of State Hillary Clinton said in a statement. “We believe every nation must live by and help shape global rules that ensure people enjoy the right to live freely and participate fully in their societies.”

Meanwhile, at Administration decided to withdraw from the UN Human Rights Council.  One thing that stands out to me in that article is how much emphasis is put on Israel (this isn't just on the US side, mind you). It is not a great idea that an institution that represents the world (around two hundred countries) to put so much emphasis on one of them. Anyway, I'm with the previous Administration on this issue.  Plus, the good faith of this bunch is lacking. Withdrawal does have a certain truth in advertising. 

[Some reference of international law also arose in the context of the first matter, including treaties we didn't join and have.]

On a completely different front, I am seriously impressed by this effort spent to review Cinderella's Hot Night. I prefer some of the Adam & Eve efforts airing late night these days (including use of natural noise during sex scenes) but that film does have a sense a fun to it. And, yes, it is a sort of Hallmark Channel movie mixed with soft porn. Saw two reviews reference that.

NFL New Anthem Policy

"You have to stand proudly for the national anthem or you shouldn't be playing, you shouldn't be there," Trump said in an interview that aired Thursday on Fox News. "Maybe you shouldn't be in the country. You have to stand proudly for the national anthem, and the NFL owners did the right thing if that's what they've done."

An interview brought out the aiding and abetting of sexual harassment that is (with real bite) attacked by the #MeToo movement. A older actress is in effect gang up on and not allowed to speak her piece and she is the one that feels it necessary to "move on" from her well deserved feelings of an actor who mistreated her.  The guys come off badly. But, the person in the White House comes out so much worse. And, that's just one issue.

I find a need to pound on this issue since the presidency being taken over, especially in the way it was, by this asshole matters so much. But, let's focus on this new anthem policy.  A player can stay off the field, but if he does not, the new  policy subjects teams to a fine if a player or any other team personnel do not show respect for the anthem. Charming. But, the protest IS respecting "for which it stands," to reference the Pledge Allegiance.  Protest is a basic part of who we are. And, the protest is to fight injustice, what we are not supposed to be.  Too hard to understand?

The teams (with one abstention) all agreed with the new policy but the NY Jets chairman publicly supported the right of players to protest. That's promising, giving one a reason to watch the team; maybe they will be able to put up credible talent this time around.  The NY Daily News also added to their prime front covers (they had some great back covers too) coming against the new policy.  This isn't too hard since against protest is sort of our thing as a nation, though people tend to look askance at it as you know sort of unpleasant.  As are the things being protested.

A word on Colin Kaepernick. As I note in comments here, it is pretty darn obvious that mere talent isn't the reason he was denied a job. Listing the mediocre talent that gets jobs while he is out of work is a parlor game. He did have struggles, so he wasn't a slam-dunk talent. But, the mindset is that he wasn't worth the "baggage" he would have brung. There is a calculus involved where strong critics like the person linked there still watches games while a certain nationalist/racist/low risk sort of fan or advertiser would be willing to not watch/pay if he was there. Plus, yes, some of the owners are conservatives who are inclined not to like him anyway.

This doesn't justify what was done to him, but going on and on (as that blog at times did) as if people are not aware of what was going on doesn't put the full story right out in the open. It is surely the case that some don't want to admit it, akin the story of the king with no clothes on. But, it is not like only talent is involved in player moves. We see this with the "Me Too" movement, to combine things together. The rules are not handled in the best way; this isn't the same thing as it being wrong that domestic violence will get you a suspension from baseball or football.

Anyway, the new policy seems to be seen as a sort of compromise, since people are not forced to take part in the national anthem. People have rightly noted that they might be a bit deluded to think that, especially such an across the board rule for all teams. It's an asinine anti-American policy.

ETA: Poll regarding policy:

White: 52% support; 32% oppose
Black: 29% support; 48% oppose
Hispanic: 49% support; 19% oppose

The Hispanic numbers are a bit surprising but otherwise fairly expected. Useful to know about strength of opposition here.

Landmark Cases: Gideon's Trumpet

One of the grounds upon which Lord Coke defended the rule was that in felonies the court itself was counsel for the prisoner. 1 Cooley's Const. Lim., supra. But how can a judge, whose functions are purely judicial, effectively discharge the obligations of counsel for the accused? He can and should see to it that in the proceedings before the court the accused shall be dealt with justly and fairly. He cannot investigate the facts, advise and direct the defense, or participate in those necessary conferences between counsel and accused which sometimes partake of the inviolable character of the confessional.

-- Powell v. Alabama (Scottsboro Boys Case)

The Supreme Court in that case ultimately spoke of the "whole power of the state arrayed against him, prosecuted by counsel for the state without assignment of counsel for his defense, tried, convicted and sentenced to death."  The rule was applied to federal non-capital cases but in the early 1940s, they drew the line at capital cases and non-capital cases with "special circumstances" when it came to state cases.

In time, this was not seen as enough for equal justice under the law by the necessary number of justices and a case was sought out to address the matter. The Supreme Court might have to wait for cases, but it does have some discretion in seeking out and crafting the ones they do get.  Charles Gideon was in a fashion out of central casting -- a poor ne'er-do-well who showed the importance of paid counsel for one's defense if fundamental fairness would be upheld without being found guilty of a particularly heinous crime. Plus, he was white though many Warren Court cases, including those that in some way involved rights to a lawyer, involved blacks and other minorities.  Later played by Henry Fonda in the movie.

Justice Black (joined by Douglas and Murphy, who if he didn't die fairly early might still be around now too) dissented back in Betts v. Brady. He wrote the majority opinion and ala Justice Kennedy in Lawrence v. Texas basically said the result should have been pretty obvious the first time. Justice Douglas concurred to promote incorporation since Black had to write the median opinion of the Court. Justice Clark argued that capital and non-capital cases deserved equal due process (which simply doesn't work at some point -- capital cases traditionally treated more strictly).

And, Justice Harlan -- unlike his grandfather not a fan of incorporation -- writing separately to give Betts v. Brady a more sympathetic burial.  Harlan was something of a great dissenter like his grandfather if not someone many (unless you are of a conservative bent) honor as much. His big cause was federalism and though he gave teeth to fundamental fairness, Harlan was more willing to go only part of the way.  Harlan didn't think each of the Bill of Rights had to fully be protected as applied to the states; this meant the Betts v. Brady approach might have worked for him. But, over time, it was really just a shell -- case after case had "special circumstances," and in the long run this did the states not much good. Sham federalism, let's say.

Over the years, particularly in capital cases, the indigent in various degrees, did get some representation.  A set rule that they should get paid counsel is a logical (if not compelled merely by the text) rule.  A right to counsel when you cannot afford can be a meaningless one, one that also in practice would deny due process of law. A lawyer is a central matter for people even if they are not (as is the current national rule) arrested for crimes where imprisonment is possible upon conviction.  We see this now with all the issues involved in the Trump legal business.

And, sometimes, this would require government support.  This is general principle also applies even in civil cases to some degree, particularly regarding fees.  More so as a matter of policy. The principle of equal justice of the law might not be quite as mythical as some aspects of this case might seem (some defendants are guilty with or without counsel; many disputes still arise on how adequate the counsel is etc.), but myths have some truth to them.  Including those with a reference to the Book of Judges.

Film Quickies

Online reading leads me to various writings (enough!) and video. The Cats Of Mirikitani (good vignette) and Hiroshima mon amour (overall good with interesting DVD interviews but the flashback to me went on too long/laid on a tad thick) being two recent ones. My foreign film at a small theater pick this time was The Insult, which was good too, but a bit unbalanced (each being a victim/in the wrong adds much to the point) between the two main characters. The courtroom battle of small battle reflecting bigger ones has a familiar feel.

Police Reactions Early and Late Week: Quite Different

We honor the police who stopped the attack at a congressional baseball game from being more lethal ("well regulated militia"?) and then protest later with the not guilty verdict in the Philando Castile case. Situations quite different but still up/down. Some statistics: mentally ill and black victims stand out. Reading: Chris Hayes and The Hate U Give. As to rhetoric per the political attack, my baseline is human empathy with even "deplorables" a matter of humanity. Non-humans don't have the wherewithal to be deplorable.

ETA: Regarding the police killing, when the NY Daily News editorial staff says "simply madness" -- it's not some left leaning group -- it's a red flag. The case seems so gratutious. EVEN THIS? Come on. It's like waterboarding. Got to draw a line SOMEWHERE!

"Justice For Mercedes"

Wary about tacking on fifty years to a state life sentence (not a big fan of that by itself for someone under 30) for a heinous murder of a trans teen. The teen received "justice" there and this is a form of gratuitous double jeopardy in the form of a message by the feds. Such laws are best left to when states somehow cannot or do not have suitable prosecutions. Be clear the person pleaded guilty last December. This wasn't much of a trans right moment for Sessions/Trump. The heavy sentence makes it not free from problems even on that level.

Comey Firing

I was trying to find opposition to Comey's nomination back in 2013 on a blog that now is fill with people who basically assume afte the fact it was so obviously stupid. Before asking again in a comment, see the news (on Twitter, of course) Comey was fired. The details are shall we say dubious. The alleged reasons likely specious. In a horrible fashion. Simplistic arguments like "Democrats wanted this" is therefore unconvincing, including because not all of them did. Given whose in power, Comey very well might have been unfortunately the best bet, at least for now. Republican responses have been mixed, some supporting, some "oh well," some "concerned." More reason not to take anything they do and say seriously.

Kates (and other reading)

I re-read a book entitled Converting Kate some time back, a discussion with some other thoughts on young adult fiction and the like covered here (2008? smh).  A taste:

I like to think that I write about young people but not exclusively for them. Down with distinctions. … well written stories that happen to be about the young can and should be read without apology by adults. If I have, so far, written primarily about young people, it is probably because in my life adolescence is inescapable. Two adolescents are permanent residents [1980] of my house. I taught for many years in a public high school. My own childhood and teenage years stand out in sharp focus for me, most of the time, than more recent stages of my life. Finally, I like young people enormously. I hope I convey that, above all, in my books.

-- Robin F. Brancato

The book has a religious theme, which is timely for the National Day of Prayer (5/4), which has been discussed here in the past.  My general concern has been that the nature of the holiday inherently favors certain types of religion ("prayer" will do that), without even focusing on the groups involved (not exactly ecumenical, itself by definition having a Christian flavor).  It would surprise no one that this is the case this year, even if the ACLU decided it didn't pay (yet) to have a lawsuit arising from the events (left that to more strident groups on such questions).  A day honoring religious freedom or even religion in general would be better.

As seen in the side panel, I also re-read The Trials of Kate Hope, a sort of pun, since it involves a 14 year old lawyer in 1973 Denver. Hopefully, in the fiction universe somewhere, in the spirit of her grandfather, she is still fighting for justice now. Good read and helpful in these times. As one review I found online noted, it would be a good idea for a movie or perhaps even a t.v. series.  The grandfather even not only honored "living" common law (living constitutionalism supporter surely!) but noted that on the whole police do want to tell the truth.  But, still was angry at injustice. The book was published in 2008 though the author [a lawyer himself] was old enough to be familiar with the times. 

These days, in part because of reading so much online (not only though), have less success finding books that interest me (a few attempts at re-reading old ones failed; though as seen, not always).  Quick reading books help in that regard and three I saw at the library in one sitting had that character.  OTOH, did not like them that much as a whole.  The first was a new biography of Beatrix Potter, the movie version of her life was one I enjoyed at the time. Over the Hills and Far Away: The Life of Beatrix Potter was too dry though it did have some nice pictures and large margins. I posted a recent book with lots of pictures geared to younger viewers on the side panel (a sort of 150 year anniversary book) that I liked better.

The second was a character biography though not of one of the plays that I have read yet (ordered the DVD of one of the films): Rosalind: A Biography of Shakespeare's Immortal Heroine. I liked the concept and some of the poetry but the author kept on repeating herself. The book was not that long (low 200s) as is, so it seemed like padding. Needed a better editor.  One thing that came to mind with Shakespeare is that it is a trudge to read since the language is antiquated.  But, though it was still poetic, not simple colloquial English, the language (if not all of the allusions) was not so at the time.  It was how they spoke, so more approachable.

Finally, Pen & Palate: Mastering the Art of Adulthood, with Recipes was in effect a dual autobiography of a friendship (teenage years to their 30s).  I liked this the best, but it was somewhat too flippant in certain ways. Still, it was a good quick read, with some life lessons by both women that kept us interested.  One is a political journalist (online, one finds she was pregnant when the book came out), the other an illustrator/costume designer. As to recipes, put aside with a vegetarian boyfriend they were rather meat focused, that stuff is always like food porn. Who has all those ingredients?

I have started Mockingbird Songs: My Friendship with Harper Lee, largely consisting of a series of letters between an historian of Alabama subjects with the author, mainly in the last fifteen or so years of her life. It's an attractive hardcover, another quick reading affair (little over 200 pages, but not really that much material) that wold make a good Mother's Day gift for someone interested in that sort of thing. I liked the Charles Shields biography as a whole, but it was slim regarding the second part of her life.* Part of the problem there was probably non-involvement with the subject, who was upset with the final product, especially material involving her mother.  There is a lot of material available to flesh things out and this helps with her final years, including with a suggestion that she very well might have wanted that "sequel" to her novel to be released. Maybe a release of a collection of her other writings? 

Happy Reading!

---

* Reading further in the book, the author noted to Lee that he thought the biography had no poetry. The beginning of the book in particular did seem rather dry, as I recall, so can see that criticism. As to inaccuracies, don't know enough about Alabama history or her life to say. But, did find the middle portion, especially regarding her helping Truman Capote with his non-fiction book particularly informative. And, the inaccuracies as the author here honestly says is in part a result of Lee and others close to her not helping, even to correct such things. Finally, especially regarding personal things that happened long ago, she was not totally objective or perhaps even fully knowledgeable (such as the full story about her mother).

Women March On Washington (and Other Places)

Today was basically protest day. Kudos to those who protest and stand together against those now in power and for justice and all that good stuff. Basically, bottom line, have to do what we can, when we can. But, feel like I'm in a burning house, the flames nearby with those in control gleefully tossing on more gasoline. I don't want this to be my America.