Category Archives: Rule of Law

E.J. Dionne is right: Let’s get this over with…

I wholeheartedly agree with what E.J. Dionne had to say last night. Excerpts:

Trump has caused a catastrophe. Let’s end it quickly.

There is really only one issue in American politics at this moment: Will we accelerate our way to the end of the Trump story, or will our government remain mired in scandal, misdirection and paralysis for many more months — or even years?

There is a large irony in the politics behind this question. The Democrats’ narrow interest lies in having President Trump hang around as close to the 2018 midterm elections as possible. Yet they are urging steps that could get this resolved sooner rather than later. Republicans would likely be better off if Trump were pushed off the stage. Yet up to now, they have been dragging their feet.

The reports that Trump asked then-FBI Director James B. Comey to drop his investigation of former national security adviser Michael Flynn may finally be concentrating Republican minds….

Nothing could be worse than slow-walking the Trump inquiries. The evidence is already overwhelming that he is temperamentally and intellectually incapable of doing the job he holds. He is indifferent to acquiring the knowledge the presidency demands and apparently of the belief that he can improvise hour to hour. He will violate norms whenever it suits him and cross ethical lines whenever he feels like it.

He also lies a lot, and has been perfectly happy to burn the credibility of anyone who works for him. White House statements are about as believable as those issued regularly by the Kremlin….

My worry is that to do it right — whether we follow the impeachment route or Ross Douthat’s suggestion of using the 25th Amendment (which has a lot of appeal to me, if doable) — may take time. Not only to dot all the legal i’s, but for a miracle to happen — for Trump’s base, which thus far has been immune to evidence, finally sees the light. Otherwise, we’re just in for more horrific turmoil and division.

But that said, we probably can’t wait for that unlikely eventuality. E.J.’s right. ‘Twere best done quickly…

Rep. Rick Quinn indicted in growing corruption probe

The latest shoe has dropped:

Longtime Republican lawmaker Rep. Rick Quinn, R-Lexington, was indicted Tuesday on two counts of misconduct in office.

One charge, common law misconduct, involves $4.5 million in questionable money accepted by Quinn “from lobbyists’ principals,” money he accepted but failed to report “to the appropriate supervisory office,” the indictment says.

That charge, which alleges illegal activity by Quinn from 1999 to April 15 of this year, carries a maximum sentence of 10 years in prison and a fine at the judge’s discretion.

The other charge, for statutory misconduct in office, carries a maximum sentence of one year in prison and a $1,000 maximum fine. It alleges that from April 2010 through April 15 2017, Quinn as a public official committed criminal acts “in order to obtain a personal profit and benefit.”…

Well, given the way this investigation has appeared to be swirling around the Quinns lately, it’s hardly surprising that Rick — who represents my former district (I was later drawn into the one now held by Micah Caskey) — would be a target. So this has nowhere near the shock value of the charges against Sen. John Courson.

Shock or not, it’s never pleasing to read of such developments. As our president would say, “Sad!”

In terms of the overall investigation, the interesting thing about this is that it crosses a line — this is the first time one of the Quinns has been charged with anything.

Will a crowd now join the governor in heading for the exits, getting as far away from the Quinns as possible?

Trump bluntly says he fired Comey for worst of reasons

What’s next? Will he start running around crying, “Take me away! I’m guilty!”?

How else are we supposed to read this:

President Trump on Thursday said he was thinking of “this Russia thing with Trump” when he decided to fire FBI Director James B. Comey, who had been leading the counterintelligence investigation into Russia’s interference in the 2016 election.

Recounting his decision to dismiss Comey, Trump told NBC News, “In fact, when I decided to just do it, I said to myself, I said, ‘You know, this Russia thing with Trump and Russia is a made up story, it’s an excuse by the Democrats for having lost an election that they should have won.’”

Trump’s account flatly contradicts the White House’s initial account of how the president arrived at his decision, undercutting public denials by his aides that the move was influenced in any way by his growing fury with the ongoing Russia probe….

So, after days of his desperate defenders trying their best to push the unbelievable cover story that a) he fired Comey on Rod Rosenstein’s recommendation, and b) it was over the Hillary emails investigation (and not over the Russians thing — heavens, no!), Trump is now shouting for all to hear, a) It was all my idea!, and b) It was about the probe of the Russians and my campaign!

And as usual, he doesn’t seem bright enough to realize those are bad things.

What we’re seeing here is another illustration of what Trump predicted about his supporters. Remember when he said he could kill somebody on 5th Avenue, and they would still support him?

Well, while his overall approval ratings are in a deep hole, among Republicans it’s — wait for it — 84 percent! The Washington Post calls that “the one little number that — so far — is all the protection Donald Trump needs.”

What is with these people?

Mister, we could use a man like Howard Baker again…

Hawaii judge on why travel order is a Muslim Ban

Here’s a nice excerpt from the “sometime scathing” (according to The Guardian) order by federal district judge Derrick Watson in Honolulu striking down Donald Trump’s second attempt to bar travel from certain Muslim countries.

Basically, he’s calling “bull” on the alleged motives for the ban:

The Government appropriately cautions that, in determining purpose, courts should not look into the ‘veiled psyche’ and ‘secret motives’ of government decision-makers and may not undertake a ‘judicial psychoanalysis of a drafter’s heart of hearts’.

Judge Derrick Kahala Watson

The Government need not fear. The remarkable facts at issue here require no such impermissible inquiry.

For instance, there is nothing ‘veiled’ about this press release: ‘Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States.’

Nor is there anything ‘secret’ about the Executive’s motive specific to the issuance of the Executive Order:

Rudolph Giuliani explained on television how the Executive Order came to be. He said: “When [Mr. Trump] first announced it, he said, ‘Muslim ban.’ He called me up. He said, ‘Put a commission together. Show me the right way to do it legally.’”

You MUST read David Frum’s brilliant piece in The Atlantic

David Frum on Tavis Smiley’s show earlier this week.

The other night, as I turned off the Apple TV and paused just before turning off the tube altogether, I saw that Tavis Smiley was interviewing David Frum — former speechwriter for George W. Bush and current senior editor for The Atlantic.

So I stopped myself from turning it off, because Frum usually has smart, interesting things to say.

He immediately said something rather outlandish. He suggested it was highly possible that Donald Trump’s main goal in being president of the United States is to become the richest man in the world. And that as long as his tax returns are not disclosed, he’s likely to achieve it.

I was about to scoff, but paused. That would be a ridiculous goal to me, or to Barack Obama, or to George W. Bush (despite what Bud and others seem to believe about Republicans.) The sheer petty, two-bit cupidity of it is laughable, particularly since in our history, no one who was thus motivated has ever sought such a position, much less attained it.

But I then reflected that lots of people actually are that motivated by money, as Doug keeps insisting to me that everyone is. And if there’s anyone on the planet who might be that acquisitive, it’s Donald J. Trump.

Well, fine. I don’t care if he does become the richest man in the world. Were it in my power, I would write him a check for the full amount he wants if only he’d walk away and stop doing what he’s doing to our country.

I don’t know, but suspect, that Frum would do the same. Because the problem for him, and for me, is the startlingly insidious ways that Trump is undermining our republic, its institutions — particularly the effectiveness of our vaunted checks and balances — and its standing in the world as a beacon of how self-government can work. Whatever Trump’s goal is — money, popularity, power for power’s sake — the really horrible thing is what he’s doing to get there.

During the interview with Smiley, Frum alluded to a piece he’d written in The Atlantic. I finally read it tonight. It is without a doubt the most brilliant, incisive, on-point, and chilling thing I’ve read since this nightmare began.

The title is “How to Build an Autocracy.”

Orwell’s 1984 has been enjoying a surge of popularity in recent weeks, especially it seems since Kellyanne Conway’s remark about “alternative facts.”

Well, the first 878 words of this essay is a bit of speculative fiction imagining the world four years from now, when Trump has just easily won re-election. It’s scarier than 1984 because it’s not a theoretical projection of just how horrible things might get in a place like Stalin’s Russia. It’s chilling because everything it describes, in explaining how Trump becomes a power that can’t be challenged, is completely, immediately believable. It wouldn’t have been before the past year, but it is now. We’re seeing it happen.

The other several thousand words of the piece elaborates on how we get from here to there, and it’s amazing. Frum doesn’t generalize. He explains in detail why it’s highly likely that the checks and balances we rely on — from official ones like Congress to unofficial ones like the press — are being quite effectively neutralized. He sets out beautifully, for instance, how Paul Ryan and Mitch McConnell are motivated to look the other way because they need Trump more than he needs them. It explains so much.

As for the media, well, Trump is redefining the nature of truth itself, or at least the way Americans regard it. An example of how that works:

One story, still supremely disturbing, exemplifies the falsifying method. During November and December, the slow-moving California vote count gradually pushed Hillary Clinton’s lead over Donald Trump in the national popular vote further and further: past 1 million, past 1.5 million, past 2 million, past 2.5 million. Trump’s share of the vote would ultimately clock in below Richard Nixon’s in 1960, Al Gore’s in 2000, John Kerry’s in 2004, Gerald Ford’s in 1976, and Mitt Romney’s in 2012—and barely ahead of Michael Dukakis’s in 1988.

This outcome evidently gnawed at the president-elect. On November 27, Trump tweeted that he had in fact “won the popular vote if you deduct the millions of people who voted illegally.” He followed up that astonishing, and unsubstantiated, statement with an escalating series of tweets and retweets.

It’s hard to do justice to the breathtaking audacity of such a claim. If true, it would be so serious as to demand a criminal investigation at a minimum, presumably spanning many states. But of course the claim was not true. Trump had not a smidgen of evidence beyond his own bruised feelings and internet flotsam from flagrantly unreliable sources. Yet once the president-elect lent his prestige to the crazy claim, it became fact for many people. A survey by YouGov found that by December 1, 43 percent of Republicans accepted the claim that millions of people had voted illegally in 2016.

If you sow enough cynicism, you don’t have to murder journalists or imprison opponents. There are subtler ways of achieving autocracy, which have been employed in recent years in places like Hungary, and we Americans are just beginning to learn about them.

He sort of leaves open the idea that Trump is a fascist, and moves beyond it, to tell us that our notions and labels and expectations are behind the times:

Whatever else happens, Americans are not going to assemble in parade-ground formations, any more than they will crank a gramophone or dance the turkey trot. In a society where few people walk to work, why mobilize young men in matching shirts to command the streets? If you’re seeking to domineer and bully, you want your storm troopers to go online, where the more important traffic is. Demagogues need no longer stand erect for hours orating into a radio microphone. Tweet lies from a smartphone instead….

But I’m not going to be able to do justice to this piece with excerpts. You need to go read it yourself. If you care, you have to.

I’ll just close with a neat thing Frum did today on Twitter. He set out some of the main points of his essay with a series of 21 Tweets. Here they are:

1) Sessions story today is a sinister confirmation of central thesis of my autocracy article: https://t.co/zx5HE02N19

— David Frum (@davidfrum) March 2, 2017

2) Donald Trump is a uniquely dangerous president because he harbors so many guilty secrets (or maybe 1 big guilty secret).

3) In order to protect himself, Trump must attack American norms and institutions – otherwise he faces fathomless legal risk

4) In turn, in order to protect their legally vulnerable leader, Republicans in Congress must join the attack on norms & institutions

5) Otherwise, they put at risk party hopes for a once-in-a-lifetime chance to remake US government in ways not very popular with voters

6) American institutions are built to withstand an attack from the president alone. But …

7) … they are not so well-built as to withstand an attack from a conscienceless president enabled by a hyper-partisan Congress

8) The peculiar grim irony in this case is that somewhere near the center of Trump’s story is the murky secret of Trump’s Russia connection

9) Meaning that Trump is rendering his party also complicit in what could well prove …

10) … the biggest espionage scandal since the Rosenberg group stole the secret of the atomic bomb.

11) And possibly even bigger. We won’t know if we don’t look

12) Despite patriotic statements from individual GOPers, as of now it seems that Speaker Ryan & Leader McConnell agree: no looking.

13) So many in DC serenely promise that “checks and balances” will save us. But right now: there is no check and no balance.

14) Only brave individuals in national security roles sharing truth with news organizations.

15) But those individuals can be found & silenced. What then? We take it too much for granted that the president must lose this struggle

16) The “oh he’s normal now” relief of so many to Trump’s Feb 28 speech revealed how ready DC is to succumb to dealmaking as usual.

17) As DC goes numb, citizen apathy accumulates …

18) GOP members of Congress decide they have more to fear from enforcing law against the president than from ignoring law with the president

19) And those of us who care disappear down rabbit holes debating whether Sessions’ false testimony amounts to perjury or not

20) Meanwhile job market strong, stock market is up, immigration enforcement is popular.

21) I’m not counseling despair here. I don’t feel despair. Only: nobody else will save the country if you don’t act yourself. END.

Illustration by Jeffry Smith in The Atlantic.

Announcing Caskey & Imgrund, LLC

Everyone wish Bryan joy upon the announcement of his new enterprise:

Bryan, I want to congratulate you on your new business and I’m sure you’ll do very well and good luck to you. Especially since your interests don’t conflict with mine. Thank you.

Oh, and next time (and please tell all your lawyer friends this), please send a Word file instead of a PDF, so I can copy and paste the info rather than having to post a picture of it…

People, can you just chill a bit over court nominations, please?

So Trump nominated someone last night for the Supreme Court, and it looks like he had good advice and listened to it for a change: I’ve seen no indications at all that this Gorsuch guy is anything other than a qualified jurist. Which means that, in a rational world — barring currently unknown problems coming to light — his confirmation should be routine. Which would be welcome; we have enough turmoil in our public life at the moment.

But then, I read this main story (there were many sidebars) about the nomination in The Washington Post:

President Trump nominated Colorado federal appeals court judge Neil Gorsuch for the Supreme Court on Tuesday, opting in the most important decision of his young presidency for a highly credentialed favorite of the conservative legal establishment to fill the opening created last year by the death of Justice Antonin Scalia….

WHAT? “The most important decision?” In what way, in what sense, in what universe completely lacking in any sense of proportion?

To keep it simple, let’s just consider three things this “young presidency” has done that are much more far-reaching in likely effect:

Pulling out of TPP. This has disengaged America from the Pacific Rim, and invited the accelerated rise of China, in a way that is likely to have staggering consequences in this century both for us and for the billions of others affected — economically, strategically, culturally and almost any other “-ly” you care to name.
Sticking a finger in the eye of every Muslim on the planet. Never mind the momentary unjust treatment of 90,000 or so individuals from Muslim countries, or the unconscionably inhumane “no” to refugees. This has indelibly engraved in a billion or so people’s minds that America regards them and their faith as the enemy, the one impression that our last two presidents have gone out of their way to avoid giving, even as they prosecuted the War on Terror.
Naming Gen. Mattis as defense secretary. Just as Gorsuch’s appears to be, this was one of Trump’s rare good calls. Deciding upon such a qualified leader for our military at a time when the world is so unsettled and there are so many places where things can go really wrong really quickly was of the utmost importance. But it was also an historic precedent, since we had avoided naming recent generals to that post for my entire life. (By contrast, presidents have named LOTS of Supreme Court justices who have come and gone in my life, and none of them held immediate sway over the immense power of the U.S. military.)

Speaking of Mattis — despite the semi-Constitutional issue his nomination raised, an issue worthy of respectful consideration, but not one that should have been an obstacle in light of his qualifications, and of the nation’s desperate need of some qualified people at this point in our history — all but one senator had the good sense to confirm him.

And if our nation had good sense, something similar would happen with Gorsuch. Will it?

No, of course not. As another piece in the Post, by the venerable Dan Balz, noted:

The coming fight over his Supreme Court nominee will be fiercer than before.

Yes, it will. Else we would all be shocked. (I, for one, would be pleasantly surprised.) And what is likely to happen will be an utter waste of energy in a time when political capital needs to be saved for so many other more important battles.

My attitude toward Gorsuch is exactly the same as it was toward President Obama’s pick for this seat, Merrick Garland. They were both qualified for the job. They had already been vetted; they had already proved themselves. They had the requisite knowledge and experience, and reputations for probity and good judgment. There were detectable differences in judicial philosophy — differences that in a calm, proportional world would matter only to legal scholars. But both were qualified for the job — far more qualified than most people elected to Congress, for instance.

Whether one or the other was confirmed is not the Ultimate Issue. It’s not Armageddon.

Here’s the way I see it: The vast, vast majority of times the Court decides cases with wisdom and with ultimate respect for the law and for our civilization. Most decisions are unanimous — which seems remarkable to this layman, since the court deals mainly in matters lower courts were unable to settle conclusively. This has been the case over the decades, no matter whether the majority of the court is labeled “liberal” or “conservative.” Controversy exists only in a minority of cases, and most of those are at least decided intelligently, even if not the way you or I would prefer.

This has been true my entire lifetime.

To me, this testifies to presidents and senators having done a phenomenal job of picking good, qualified justices. The political branches have a much better record in this than in any other area I can think of.

Am I unhappy with some of the decisions? You bet. My opposition to Roe v. Wade is well documented here. I object not only to its legalization of abortion, but to the devastating effect that decision has had on our national politics — specifically, to exacerbating the very problem that I’m on about in this post.

(Considered logically, I am if anything even more opposed to the absurd precedent upon which Roe is based — the Griswold decision, which magically “discovered” an absolute right to privacy hiding in the shadows of the Constitution, a right that had somehow gone unnoticed in the nation’s previous 189 years.)

Today, in part because of Roe, we have vast numbers of people — thousands, if not millions of Americans will vote for a president based largely if not entirely on the basis of what sort of justices he or she is likely to name — “liberal” or “conservative.” Which is insane, given the far more immediate and far-ranging powers of the presidency. A president has the power, at every morning of every day, to make decisions that could lead to the destruction of all human life on this planet — and yet people will actually let their vote be decided on a narrow range of factors involved in a decision the president might make once, or maybe twice, in a four- or eight-year period.

It’s ridiculous. It’s far out of rational proportion.

Of course, since I’ve described the devastating effect of that one decision on our nation’s politics, you might say judicial nominations should be treated as seriously as they are. But no. That decision was an aberration. The number of bad decisions made by presidents in the same period of time since, say, Plessy v. Ferguson or Dred Scott is far, far vaster. Which argues that we ought to devote more of our attention and political energy on the 99.999 percent of what a president does, and less on this one.

Maybe Dan Balz and other experienced observers are wrong — just as they were wrong about Trump’s electoral chances.

Maybe the enormity of what Trump is doing in virtually every other area within his authority will shock our political players into having a sense of proportion. Maybe they’ll save their powder for the big battles that must be fought, some of which (who knows?) might even be won by the forces of reason. Maybe this confirmation will be as routine as it should be, as most of them should be.

But I doubt it. There is a vast infrastructure of political advocacy out there that exists purely for fights such as this one. And both political parties are closely wedded to those interest groups, and fearful of not doing their bidding with utmost zeal.

We’ll see…

Dylann Roof found guilty

… which in a way isn’t news, since it was a foregone conclusion. But it’s a tribute to the fact that we still live under a system of laws and not of men — innocent until proven guilty, etc. — which is reassuring in this post-election world in which so much that our Founders bequeathed us seems threatened.

Of the seven news outlets I just glanced at, five led with it, including both British outlets I looked at:

The State — Dylann Roof found guilty
NPR — Jury Finds Dylann Roof Guilty In S.C. Church Shooting
BBC — Supremacist guilty of US church killings
The Washington Post — Dylann Roof found guilty of all charges in Charleston church massacre
The Guardian — Dylann Roof found guilty in Charleston church shooting

Only The Wall Street Journal and The New York Times led with other things. The Journal, true to its calling went with an item about the dollar hitting new heights, while the Times touted the latest in its series about the Russians tampering with our election.

In other South Carolina news, Steve Benjamin — of all people — had a meeting with Donald Trump. He says he thinks it went well. Sure — that’s what people say just before Trump gives them the Mitt Romney treatment…

A post in which you can talk about Gen. Mattis

Bryan Caskey complains via email, “We gonna talk foreign policy and military stuff on your blog about Mattis, or what?”

Alright, alright, already! Here’s a post about that. And here’s a story about Mattis.

Frankly, I don’t have a strong opinion on this nomination, but here are some thoughts:

With a complete ignoramus as commander in chief, it’s more important than ever that there be competent Cabinet members, who can keep the ship of state on some kind of rational course, at least when the White House leaves them alone to do so. This is particularly true on the national security team. And Trump’s decision to make Gen. Michael “Lock Her Up!” Flynn his national security adviser already has us in the hole on that score.
Mattis would seem to fit that bill. He’s a guy whose resume demonstrates that he would fully understand the missions of the Defense Department and act accordingly.
Then there’s the problem that Congress would have to grant an exemption that it has not granted until it did so for George C. Marshall. The law they’d have to waive arises from concerns about maintaining civilian control of the military. As y’all know, I’m not one of these post-Vietnam liberals who hyperventilate at the sight of a military uniform, fearing a real-life “Seven Days in May.” The Constitution sets the president as commander in chief, and that would seem sufficient. Well, it would under normal circumstances. Having a SecDef who is a recent general and is able to think rings around the president on military matters and foreign affairs could be a cause of concern on the fussy point of civilian control — but I personally would sleep better if I knew Mattis was calling the shots rather than the president-elect.
Mattis is far less trusting of Iran than President Obama. I think that is probably a healthy thing, but as Bryan would say, and this post is after all for Bryan, your mileage may vary.
I think it’s a very good thing that he has differed in the past from Trump on the idea of our allies getting a “free ride” on the back of U.S. power. He argued with a similar comment from President Obama once.
My guys John McCain and Lindsey Graham are on board, which makes me like him better. Graham finds him “an outstanding choice,” and McCain says “He is without a doubt of one of finest military officers of his generation and an extraordinary leader who inspires a rare and special admiration of his troops.”

Your thoughts?

Another of the many basic things Trump has never thought about

Trump voters wanted an outsider, but I doubt that they, or I, or anyone yet fully grasps just how out-of-the-loop this guy is.

I think I have a pretty good idea, based on the last year and a half. I’ve long known enough to see that — if you see the same things — you’d have to be stark, raving mad to want to put this guy anywhere near the Oval Office. But look what’s happened.

So, each day will bring us face-to-face with yet another thing that demonstrate that Donald Trump has never spent a moment of his garish life thinking about things that are second nature to people who — regardless of party or philosophy — possess the most basic qualifications to be president.

Sometimes it’s something small — but telling — such as this:

Nobody should be allowed to burn the American flag – if they do, there must be consequences – perhaps loss of citizenship or year in jail!

— Donald J. Trump (@realDonaldTrump) November 29, 2016

Now here’s a place where my own gut feelings are the same as those of our president-elect. The idea of someone showing such hatred and contempt toward the flag that our bravest Americans have given their lives to defend, and to raise over such places as, say, Iwo Jima — a flag that symbolizes the noble ideas upon which our nation was founded — is profoundly offensive, even obscene. I have utter contempt for anyone who would even consider such a thing.

But I wouldn’t use the power of the state to punish someone for it, certainly not to the extent of loss of citizenship, or a year of imprisonment. You might have me going for a moment on something such as writing the protester a ticket, but ultimately I’d even have to reject that. Why? Because of those very ideas that the flag stands for. If burning the flag causes a person to be burned or causes some other harm, then you have a crime. But if the expression itself is punishable, then it doesn’t matter whether the flag is burned because it doesn’t stand for anything.

(This is related to my opposition to “hate crimes,” one of the few areas where I agree with libertarians. Punish the crime — the assault, the murder, the arson, whatever the criminal did — not the political ideas behind it, however offensive.)

People who have their being in the realm of political expression have usually thought this through. And true, even people who have thought about it may disagree with my conclusion, wrong as they may be. Still others cynically manipulate the feelings of millions of well-meaning voters who haven’t thought the issue through themselves.

But I don’t think that’s the case with Trump. I think he’s just never really wrestled with this or thousands of other questions that bear upon civic life, so he goes with his gut, which as I admitted above is much the same as my own on this question. He engages it on the level of the loudmouth at the end of the bar: I’ll tell ya ONE damn’ thing…

In a time not at all long ago — remember, Twitter didn’t exist before 2006 — we wouldn’t know this as readily as we do now. Sure, a political leader might go rogue during a speech, or get tripped up on an unexpected question during a press conference. But normally, the smart people surrounding a president would take something the president wanted to say and massage and process and shape it before handing it to a press secretary to drop into the daily briefing.

Now, the president-elect — or Joe Blow down the street — can have a gut feeling and without even fully processing the thought himself, immediately share it with the entire planet. As this president-elect does, often.

That’s a separate problem, of course, from the basic cluelessness of this president-elect. Not only does he not know a lot that he should, he has the impulse and the means to share that lack of knowledge and reflection with the world, instantly.

Quite a few people in public life haven’t figured out social media. They don’t understand something that editors know from long experience — that you have to be very careful about what you publish. (And yes, posting a random thought on Twitter does constitute publication.) Our governor, soon to be our U.N. ambassador, had a terrible time learning that, although to her credit she hasn’t done anything notably foolish on Facebook in a while.

As Aaron Blake writes on The Fix, it might be nice to think we could ignore these outbursts:

For the second time in two weekends, President-elect Donald Trump stirred controversy, bigly, using only his thumbs.

With a trio of tweets Sunday alleging millions of fraudulent votes and “serious” fraud in three states, Trump effectively hijacked the news cycle for the next 24 hours with baseless conspiracy theories. A week prior, it was Trump’s tweets demanding an apology from the cast of “Hamilton” for disrespecting Vice President-elect Mike Pence, who was in the audience the previous night.

It can all feel pretty small and sideshow-y at times. Some have a prescription: The media should resist the urge to cover Trump’s tweets as big news. Others even say we should ignore them altogether….

But we can’t. In the months and years to some — assuming no one gets control of him, and I doubt anyone will — we must treat them as seriously as if the president strode into the White House Press Room and made a formal announcement.

This is what we’ve come to. Our window into the mind of the most powerful man in the world will to a great extent be these spasmodic eruptions onto a tiny keyboard.

We might as well brace ourselves…

Is Graham trying to out-Trump Trump on Clinton?

I thought this was an odd response from Lindsey Graham to the news that Trump was dropping the idea of prosecuting Hillary Clinton:

On Reports President-elect Trump Will Not Pursue Clinton Investigation:

“Well so much for ‘Locking Her Up’ I guess. The bottom line is that I think the Clinton Foundation, the whole mess, should be looked at with an independent view, not a political agenda. I never believed Obama’s Justice Department would seriously look at what she may have done. I can understand wanting to put the election behind us and heal the nation, but I do hope all the things President-elect Trump said about how crooked she was – well, we just don’t let it go without some serious effort to see if the law was truly violated. I think that would be a mistake.”

I find it odd for several reasons, including:

Graham is not a guy who has been shy about holding Trump accountable, as demonstrated anew with his comments after the president-elect chatted with his would-be buddy Putin.
Possibly the most egregious moment in the campaign was when Trump threatened — in a nationally televised, live debate — to turn the United States into a banana republic by locking up his political opposition.
Graham is a big advocate for the rule of law, and an intelligent politician, and I can’t believe that he doesn’t see it would be impossible for Trump to pursue a prosecution against Hillary Clinton after having said what he said and have that be seen as anything other than abuse of power.
He certainly understands that any prosecutorial moves on her would be a judgment call — it’s not like she clearly and with malice aforethought went out a committed a major crime, something that couldn’t be overlooked no matter the political and constitutional ramifications.
Graham isn’t one of these guys with a 20-plus-year record of Clinton Derangement Syndrome. He got along pretty well with her when she served in the Senate, so it’s out of character for him to express reluctance to let go of this bone.

All of that adds up to it being weird for him to go “Are you sure you want to do that?” when Trump, of all people, is willing to let it go — possibly at the price of loss of favor among a lot of the folks who voted for him.

Oh, and as long as I’ve got you, I should share the other topic he addressed — Jeff Sessions. Here’s a quote, and it’s all on the video below, two-and-a-half minutes in:

On the Nomination of Jeff Sessions to be Attorney General:

“I’ve known Jeff for twenty years. I think he’s a principled conservative. I’ll have some questions for him before the Judiciary Committee. These attacks on his personal character, about him being some kind of closet racist or what he may have said thirty or forty years ago is complete garbage. Jeff Sessions is one of the finest people I have ever known. I don’t think there is a hateful bone in his body. We have some policy differences so I’ll be glad to challenge Jeff where we disagree, but support him in terms of him being a good, decent man. And to my Democratic colleagues, you better watch what you do here.”

Refreshing my memory about the Electoral College

Never mind all the paintings you’ve seen; most photographs of “Hamilton” found via Google look like this.

In a comment earlier today, I sought to excuse myself from any errors in memory by confessing that I hadn’t read all of the Federalist Papers in decades.

Realizing that was lame, I decided that I should at least go back and read the one that addressed the subject at hand, the Electoral College. That’s Federalist No. 68, probably by Hamilton.

I must say, there was little mentioned about the importance of having the president chosen by states rather than masses of people, beyond oblique references such as these:

And as the electors, chosen in each State, are to assemble and vote in the State in which they are chosen, this detached and divided situation will expose them much less to heats and ferments, which might be communicated from them to the people, than if they were all to be convened at one time, in one place….

Talents for low intrigue, and the little arts of popularity, may alone suffice to elevate a man to the first honors in a single State; but it will require other talents, and a different kind of merit, to establish him in the esteem and confidence of the whole Union, or of so considerable a portion of it as would be necessary to make him a successful candidate for the distinguished office of President of the United States….

But such commentary is hardly necessary since the Constitution itself makes it perfectly clear that the president is to be chosen by electors who are themselves chosen by states:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

So there.

Of course, there is a good deal to suggest that Hamilton thought it proper that the method of selection defer to “the sense of the people,” not least the fact that the House would be the body to decide if a clear winner did not emerge from the electors’ deliberation.

Note that the idea that there should be deliberation, and not an up-or-down vote of the people, was crystal-clear:

It was equally desirable, that the immediate election should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice. A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations….

Also, remember yesterday when I suggested that “It would be nice for it to be an actual COLLEGE, in which people study year after year our nation’s history and political science, so that they are completely infused with the kind of knowledge that Donald Trump utterly lacks?”

Hamilton would have hated that idea, apparently. He thought the temporary nature of the college — assembled ad hoc, for the immediate task of electing a president once — was one of the system’s great virtues. Of the Framers, he wrote:

They have not made the appointment of the President to depend on any preexisting bodies of men, who might be tampered with beforehand to prostitute their votes; but they have referred it in the first instance to an immediate act of the people of America, to be exerted in the choice of persons for the temporary and sole purpose of making the appointment. And they have excluded from eligibility to this trust, all those who from situation might be suspected of too great devotion to the President in office. No senator, representative, or other person holding a place of trust or profit under the United States, can be of the numbers of the electors. Thus without corrupting the body of the people, the immediate agents in the election will at least enter upon the task free from any sinister bias. Their transient existence, and their detached situation, already taken notice of, afford a satisfactory prospect of their continuing so, to the conclusion of it….

The context of that, by the way, was in part to guard against this danger:

Nothing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption. These most deadly adversaries of republican government might naturally have been expected to make their approaches from more than one quarter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils. How could they better gratify this, than by raising a creature of their own to the chief magistracy of the Union? But the convention have guarded against all danger of this sort, with the most provident and judicious attention….

Vladimir Putin might get a good chuckle out of that. But on the other hand, every foreign government except those of Russia and China preferred Hillary Clinton. Still, can the mechanism be said to work when the desires of our allies are thwarted, and the preferences of our adversaries granted?

If you haven’t wept for your country yet after last week, consider this hope of Hamilton’s:

The process of election affords a moral certainty, that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications…. It will not be too strong to say, that there will be a constant probability of seeing the station filled by characters pre-eminent for ability and virtue. … we may safely pronounce, that the true test of a good government is its aptitude and tendency to produce a good administration….

Riiiight…

The final irony is that, while today the College is perhaps the most reviled part of the Constitution, at the time Hamilton saw it as hardly needing defending, since it was one of the few parts not being heavily criticized:

THE mode of appointment of the Chief Magistrate of the United States is almost the only part of the system, of any consequence, which has escaped without severe censure, or which has received the slightest mark of approbation from its opponents. The most plausible of these, who has appeared in print, has even deigned to admit that the election of the President is pretty well guarded. [1] I venture somewhat further, and hesitate not to affirm, that if the manner of it be not perfect, it is at least excellent. It unites in an eminent degree all the advantages, the union of which was to be wished for….

What a difference a couple of centuries make…

Did Comey just do MORE harm to Clinton (and the country)?

I like this screenshot, because among other things it shows you just how little time is left before voting as this story breaks.

I like this screenshot, because among other things it shows you just how little time was left before voting.

So did James Comey on Sunday lift the cloud that was hurting Hillary Clinton’s chances to win the election Tuesday?

I suspect not. In fact, he may have done more harm than good. Why? Because I think she gets hurt every time her emails get mentioned, period.

Everyone recalls his big announcement over the summer when he said the FBI had found nothing worth filing charges over. But I also recall what happened a couple of days before that, on the Saturday that the FBI had one last interview with Sec. Clinton before Comey’s announcement.

The effect was, to me, quite weird. Word of the interview came on Saturday, July 2. I remember marveling at all the bulletins I was getting about it on my phone. The reaction seemed excessive, since we knew nothing except that she had been interviewed. I wondered even more when news analysis over the next couple of days was all about how this new hurt her campaign. The Washington Post‘s take at the time:

Hillary Clinton’s weekend interview with the FBI stands as a perfect symbol of what is probably her biggest liability heading into the fall election: A lot of people say they don’t trust her.

Clinton sat for an interview of more than three hours as part of a Justice Department investigation into the privately owned email system she operated off the books when she was secretary of state. The timing — less than three weeks before she will claim the Democratic presidential nomination — is an attempt to make the best of a situation that would look bad for any candidate but is particularly damaging for Clinton.

That the interview at FBI headquarters was voluntary does not expunge the whiff of suspicion surrounding the entire email affair that, for many voters, confirms a long-held view that Clinton shades the truth or plays by her own rules….

I thought that rather weird at the time. Then, of course, on July 5 — mere seconds after I had posted about how odd it was, Comey had his long “no charges” presser. Which sorta kinda relieved a lot of Democrats (he had a lot of critical things to say, too) and infuriated Republicans.

Fast-forward to Comey’s announcement 10 days ago that the FBI was looking at some more emails. Enormous damage was done to the Clinton candidacy, with her dropping in polls, infuriating Democrats and cheering up Trump supporters. And yet — think about this — there was no substance whatsoever in the announcement. There was no indication that there would be anything in the new emails that would reflect badly on the former secretary.

But was, undeniably, bad for her nevertheless.

My theory is this: We long ago passed a point at which any sentence that contains “Hillary Clinton” and “emails” is, in the collective mind of the electorate, a bad thing. And with good reason — she shouldn’t have set up the private server to begin with.

But it’s also a sort of mushy bad thing, without clear lines demarcating “good” and “bad,” so that even if the full sentence is “Hillary Clinton’s emails contain nothing incriminating,” the less detail-oriented parts of our brains still go “bad” at hearing the first three words together.

So it is that her candidacy was harmed when Comey brought up the words again 10 days ago, even without any information letting us know whether the news was indeed bad.

And, I suspect, it was harmed again yesterday when Comey essentially said, “There’s still nothing incriminating in Hillary Clinton’s emails.” As far as the political effect is concerned, we all heard only the last three words.

Here’s what I mean: I doubt the news tipped many people from planning to vote for Trump to planning to vote for Clinton. Or even from staying home, or voting third-party, to voting for Clinton.

But it once again infuriated the Republican base — including, I suspect, a lot of Republicans who were reluctant to vote for Trump, but who now are freshly reminded of how much they despise Hillary Clinton. They were kind of coasting along there experiencing various degrees of satisfaction from 10 days ago, and then BAM! — they’re outraged. Which can’t be good for her.

Please tell me I’m wrong…

What IS the deal with Comey?

This business of the FBI director’s letter last week has a lot of puzzling aspects that we could discuss.

Comey’s official FBI portrait. I almost don’t recognize him, smiling.

I almost did a post yesterday based on a couple of headlines out there, one of which was this: “Did FBI Director James Comey’s Email Announcement Break The Law?” To that, I could only say, Who cares? What if it did? Sure he could be prosecuted, fined, jailed, whatever — it wouldn’t affect what he has done to this election, whatever that is. The damage can’t be undone. If his actions result in the election of Donald Trump as president of the United States, keelhauling him might make a lot of us feel avenged, but it wouldn’t save the country.

Another headline — which I can’t seem to find now — said he may have a report on what is found in the new emails before the election. To which I could only say, whoop-te-frickin’-do. When would that be? Election eve? So if the news is detrimental to Hillary Clinton, or merely leaves a cloud over her, that could be the finishing stroke. And if it clears her of any further culpability, Republicans will charge to the polls in a fine lather, willing even to vote for Trump to express their ire.

There’s a lot more this morning. I was intrigued by an interview I heard on public radio this morning with Donald Ayer, deputy U.S. attorney general under Presidents Ronald Reagan and George H.W. Bush between 1989 and 1990. He made a fascinating point. He said that when Comey had his announcement/speech back in the summer, everybody kind of went, OK, so Hillary did some irresponsible stuff, but it didn’t rise to the level of being prosecutable. Republicans were outraged and Democrats relieved, but everyone went on with their lives.

And, Mr. Ayer said, no one stopped to think just how wildly inappropriate it was for someone with prosecutorial power to make a lengthy speech about the merits of a case he was deciding not to prosecute.

Anyway, the point was that that error set up this one. Having told Congress and tout le monde that he was done investigating and there was nothing to prosecute, he felt honor-bound to say last week, Uh, fellas, I found something else we need to take a look at….

(Being bound by honor is a very fine thing and all too rare these days. But I confess I’m on the verge of losing patience with Mr. Comey’s delicate sensibilities…)

So now we have this situation in which everybody’s mad at him — Democrats for possibly throwing the election to Trump, and Republicans for not telling us all right now just how much these emails damn Hillary.

Here’s another interesting wrinkle: “Comey was concerned publicly blaming Russia for hacks of Democrats could appear too political in run-up to elections.”

Yeah, right? He had his excuses for why he was concerned about the FBI’s purity in that case and not this one (and you should read the story), but still…

Finally… As y’all know, Bret Stephens, deputy editorial page editor of The Wall Street Journal, has written some extraordinary columns lately damning Trump and all-but-endorsing Hillary. Today, he had one simply headlined, “Resign, Mr. Comey.” An excerpt:

These aren’t partisan acts. They are self-regarding ones. Mr. Comey is a familiar Washington type—the putative saint—whose career is a study in reputation management. He went after investment banker Frank Quattrone. He threatened to resign from the Bush administration over its warrantless wiretap program. He vouchsafed the case against Steven J. Hatfill, the virologist accused of the 2001 anthrax mail attacks, in internal White House deliberations. He appointed his close friend Patrick Fitzgerald to investigate the leak of CIA analyst Valerie Plame’s name.

One common thread in these cases is that Mr. Comey was always on the right side of Beltway conventional wisdom. The second is that he was consistently on the wrong side of justice….

FBI directors are supposed to be above politics, not in them. President Obama has the authority to fire Mr. Comey but will be hard-pressed to do so politically. That goes double if Mrs. Clinton is elected. Who knows what a President Trump would do.

All the more reason for Mr. Comey to do the right thing. He has lost the trust of his political masters, his congressional overseers and the American people. Wanting to spend more time with family is the usual excuse.

Mr. Stephens is understandably ticked.

One wonders where Mr. Comey’s conscience will take us next. Although what it’s done so far is quite enough…

The NYT, perhaps unsurprisingly, has a lawyer who can WRITE

McCraw

You’ve got to read the letter that David E. McCraw, a lawyer for The New York Times, wrote in response to a letter from an attorney for Donald Trump asking the paper to retract an article that featured two women accusing Mr. Trump of touching them inappropriately years ago, and issue an apology.

No, really, you should read it. It’s not the usual legalese that gives you a headache before you get through the first sentence. It’s pretty awesome. It tells home truths, lays down a challenge and dares ’em to come on.

Click here to see the original document. Here’s the full text:

October 13, 2016

VIA ELECTRONIC DELIVERY

Marc E. Kasowitz, Esq.
Kasowitz, Benson, Torres & Friedman LLP
1633 Broadway
New York, NY 10019-6799

Re: Demand for Retraction

Dear Mr. Kasowitz:

I write in response to your letter of October 12, 2016 to Dean Baquet concerning your client Donald Trump, the Republican Party nominee for President of the United States. You write concerning our article “Two Women Say Donald Trump Touched Them Inappropriately” and label the article as “libel per se.” You ask that we “remove it from [our] website, and issue a full and immediate retraction and apology.” We decline to do so.

The essence of a libel claim, of course, is the protection of one’s reputation. Mr. Trump has bragged about his non-consensual sexual touching of women. He has bragged about intruding on beauty pageant contestants in their dressing rooms. He acquiesced to a radio host’s request to discuss Mr. Trump’s own daughter as a “piece of ass.” Multiple women not mentioned in our article have publicly come forward to report on Mr. Trump’s unwanted advances. Nothing in our article has had the slightest effect on the reputation that Mr. Trump, through his own words and actions, has already created for himself.

But there is a larger and much more important point here. The women quoted in our story spoke out on an issue of national importance – indeed, an issue that Mr. Trump himself discussed with the whole nation watching during Sunday night’s presidential debate. Our reporters diligently worked to confirm the women’s accounts. They provided readers with Mr. Trump’s response, including his forceful denial of the women’s reports. It would have been a disservice not just to our readers but to democracy itself to silence their voices. We did what the law allows: We published newsworthy information about a subject of deep public concern. If Mr. Trump disagrees, if he believes that American citizens had no right to hear what these women had to say and that the law of this country forces us and those who would dare to criticize him to stand silent or be punished, we welcome the opportunity to have a court set him straight.

Sincerely,
David E. McCraw

Well said, sir.

Could we go ahead and adjudicate this now?

The Hamlet routine: to press or not to press (charges)

None of these is actually my mailbox; I just needed art to go with this…

Monday morning, my wife asked me if I’d done anything with our mailbox at the house — put anything in, taken anything out, whatever. No, I hadn’t. She said she’d come home mid-morning and found it open. And two pieces of mail she had placed in it Sunday afternoon, both containing checks to pay bills, were missing.

So we speculated that maybe the postal worker had come freakishly early or something — J vaguely recalled having seen the mail truck in the neighborhood on Sunday and wondering what it was doing — and made plans to contact the folks to whom the checks were mailed to make sure they arrived.

Then, a couple of hours later, I got a call from our credit union, with whom we have that checking account. Someone we had never heard of had just been in their Irmo office trying to cash a check from us for $680.42.

One of the checks we were mailing was for $130.42. Think about it.

While I can see how someone made that change, I still don’t know how anyone managed to change what was in the TO space. The check was to Lexington County, to pay a vehicle tax, and the name it had been changed to wasn’t even close.

Anyway, the credit union refused to cash it, the person left with the check, and the teller — who remembered us from when she worked in the West Columbia branch — called me.

So since the thieves have my account number and routing number, I ran over to the main office and had the account closed.

That was just the start. We had to change a couple of direct deposits, and some automatic payments — Netflix and the like. There were the two probably-stolen checks, and an earlier payment that hadn’t gone through, so we’d have to get with all those folks and arrange to pay another way.

Yeah, I know. You’re wondering why we were putting checks into our mailbox. A lot of people have asked that the last couple of days, accompanied by “Didn’t you know…?” No, we didn’t. While everyone and his brother is mentioning it now, no one had ever mentioned it to us before — and we’d gone our entire lives without anything being stolen from our mailbox. To our knowledge.

And like most of you, we don’t send out many checks anymore, usually doing electronic transfers. But that doesn’t always work out. Rest assured, if we send out checks henceforth, we’ll follow Moscow Rules — maybe changing vehicles two or three times on the way to an official U.S. gummint mailbox.

Next step, police reports. We live in the county, so I called the sheriff’s office and gave the details over the phone. Separately — since a separate crime was attempted in that jurisdiction — the credit union contacted the Irmo PD.

Which led to a bit of a dilemma for me.

Tuesday morning, the Irmo policeman who’d taken the report called me to ask whether we wanted to press charges. Not that there was a suspect in custody or anything — the police wanted to know whether they would have a case (whether we would testify that we never wrote a check to the person in question, for instance) before devoting resources to it.

I sympathized. The police need to prioritize, I understand. But being asked this question caused me concern on two fronts, having to do with opinions I’ve long held and expressed:

I’m all for looking out for crime victims, but I am adamantly opposed to them making decisions about prosecution. You’ll hear people say that “The victim’s family should decide” whether to pursue the death penalty in murder cases, for instance. That’s an outrageous suggestion in my book. We don’t have police and courts to act as agents of personal vengeance for individuals. Our laws against murder and passing bad checks exist because we, as a society, don’t think people should be allowed to kill other people or steal from them — such things are disruptive to civilization. (This is related to my oft-stated opposition to abortion on demand — to me, it’s a violation of the ideal of a nation of laws and not of men to have the one most interested person on the planet have absolute power over life and death.)
As y’all know, I don’t think we need to be locking up people who commit nonviolent crimes. Many if not most of the women in prison, from what I’ve heard in the past, are there for trying to pass bad checks. Don’t know if that’s still true, but that’s what I used to hear.

Add to that the fact that aside from being greatly inconvenienced, I had lost nothing, thanks to the smart actions of the teller who refused to cash the check (I told her supervisor she should get a gold star for that). The credit union wasn’t out anything, either — aside from time spent on this.

So I dithered. I asked the officer if I could call him back, and promised to do so by the end of the day.

I polled people about it, and everyone I talked to said of course you want them to prosecute. Still, I did the Hamlet routine — to press or not to press?

I finally decided that I had no choice, for the simple fact that it wasn’t about us, even though it felt like it. Whoever had stolen the checks, and whoever tried to pass the forged one (which could be more than one person), might do it again. For all I know, the person or people in question might do this all the time.

And that needed to be stopped, if possible. It wasn’t about what had or hadn’t been done to us; it was about protecting the rest of society. If we didn’t follow through, additional crimes might occur. If we didn’t proceed, the social contract would fray a bit more.

You know me — once I had it framed in my mind in communitarian terms, I called the officer and asked him to proceed.

If anything else interesting happens, I’ll keep y’all posted…

By the way, what would y’all have done (I mean, besides not putting the checks in the mailbox to start with)?

The rape suspect cross-examined the victim? REALLY?

Being blind, Lady Justice missed a travesty in one of her courts Tuesday.

I don’t read a whole lot of crime news, because it seldom involves editorial points I want to make.

But this story sort of blew me away today:

Woman sobs on stand under questioning by alleged rapist

By John Monk

jmonk@thestate.com

A woman wept on the witness stand, at times uncontrollably, as her accused serial home invader and rapist, acting as his own attorney, grilled her about what happened that morning.

Nathan Martinez, 37, confronted his accuser in a Richland County courtroom in steady but accusatory tones, asking the woman if she had in fact really been raped during a March 2014 home invasion in Forest Acres. In her testimony for the prosecution, he said, she had not said anyone kicked or hit her.

“You said that the individual used force,” Martinez charged.

The woman, who now lives out of state with her family, replied, “He used force by putting a gun in my face, by tying me up and threatening to kill me!”

It was an unusual day in court. It’s rare for defendants to represent themselves, especially in complex, violent crimes such as this week’s case….

Yeah, John. To say the least…

You hear about rape victims feeling like they’re the ones on trial, but I have never even heard of something this outrageous.

I read on to determine how such a miscarriage of justice could occur, and found this explanation:

It was only after questioning Martinez and making sure he knew he was giving up his right to an attorney that trial Judge Knox McMahon allowed him to be his own lawyer. If McMahon had refused Martinez’s request to be his own attorney with cross-examination rights, the case could be overturned on appeal….

Well, I’m sure that you, like me, are all broken up from worrying about Martinez and his rights.

Look, I’m not one of these people who goes on and on about how our system only extends rights to the accused and none to the victims, yadda-yadda. I believe in the rule of law. I believe in being innocent until proven guilty. And while I’m sympathetic, I feel like sometimes the victim’s rights movement can go a tad overboard.

But a terrible thing happened in one of our courtrooms yesterday. Even if you extend the “innocent-until-proven-guilty” thing to the point of saying “hey, maybe the guy didn’t do it” — you’re left with the fact that to this innocent woman and her innocent children, he did do it. And they were subjected to this outrage.

And I’m wondering whether there are any statutory remedies out there to make sure this never happens again…

The SC Supreme Court sides with Pascoe against Wilson

Wilson, flanked by ex-AGs Charlie Condon and Henry McMaster, during his raging presser back in March.

Which surprises me. I haven’t read the decision yet, but John Monk’s story doesn’t explain how the court got around the fact that you can’t call a statewide grand jury without the attorney general.

All it says is that the court has essentially ruled that, for the sake of this investigation, Pascoe is the attorney general. Huh, seems like that would surprise those involved in writing the state constitution. But hey, they’re the experts, not me.

An excerpt:

The S.C. Supreme Court ruled Wednesday that Attorney General Alan Wilson can’t stop his special prosecutor, David Pascoe, from investigating possible corruption in the General Assembly.

Although Wilson tried to stop Pascoe – and apparently halted Pascoe’s investigation several months ago – the Supreme Court made it clear in its Wednesday ruling that Wilson acted unlawfully in trying to keep Pascoe from continuing his probe. Pascoe was working with SLED on the investigation.

“…the Attorney General’s Office’s purported termination of Pascoe’s designation was not valid,” the Supreme Court ruled in a 4-1 opinion.

The Supreme Court’s decision means that Pascoe now is the effective acting Attorney General for the purpose of Pascoe’s General Assembly investigation – and Wilson can’t stop him from proceeding….

The Court seems to have essentially sided with the popular narrative that Alan Wilson was trying to stop an investigation into his political buddies — which I know a lot of folks accept as gospel, but which I don’t believe for a second. It seemed to me that Pascoe acted outside the law in trying to call the jury on his own — something that Wilson made it clear he was ready and willing to do for him.

Of course, Wilson didn’t do himself any good with that raging press conference — but that wouldn’t seem to change the law, just his political image.

But maybe the court ‘splained it in a way that negates my concerns. We’ll see…

What would you do to get the right to vote, if you didn’t have it?

Following up a bit on my last post, about political demonstrations and whether they’re worthwhile…

I mentioned something about having seen the film “Suffragette,” and wondered about how wise it was for those women to break shop windows as a way of persuading men that they should be allowed to vote. Seemed kind of self-defeating, to me. Like, “I’m a rational, responsible, thoughtful human being who would make a great voter because I make good decisions! And to prove it, I’m going to break that window with this rock!”

Later, I got to thinking…

Just how precious is the right to vote? It’s a biggie, no question. Very important, even though it’s a little hard to fully appreciate it in an election year such as this one. Hard to have a representative democracy without it.

Interestingly, a 1913 film about suffragettes also emphasized the rock-throwing.

But is it the most essential right? Is it the one from which all others spring? Not really, I don’t think. I think the ones entailed in the First Amendment come higher, speak more to the essence of liberty — the ones that add up to freedom of conscience.

What would I be prepared to do to get suffrage if I didn’t have it? March? I suppose so. Break windows? I don’t know about that…

But I would definitely use the other rights I just mentioned. I’d write about it; I’d speak about it. I’d peaceably assemble, and petition the government for redress. And I’d be very glad that I had all of those rights, which I would see as the key to getting the others.

The question may seem silly — of course, the right to vote is essential in a representative democracy.

But if you had to choose the lesser of two weevils — would it be the last right you gave up, or are others more precious?

Krauthammer’s onto something re Comey’s motivation

comey testify

Charles Krauthammer says he thinks he understands why FBI Director Comey recommended that Hillary Clinton not be prosecuted, despite findings of illegality — and it doesn’t fit the usual GOP conspiracy theories.

In fact, it’s remarkably like what I said earlier in the week. Says Krauthammer:

The usual answer is that the Clintons are treated by a different standard. Only little people pay. They are too well-connected, too well-protected to be treated like everybody else.

Alternatively, the explanation lies with Comey: He gave in to implicit political pressure, the desire to please those in power.

Certainly plausible, but given Comey’s reputation for probity and given that he holds a 10-year appointment, I’d suggest a third line of reasoning.

When Chief Justice John Roberts used a tortured, logic-defying argument to uphold Obamacare, he was subjected to similar accusations of bad faith. My view was that, as guardian of the Supreme Court’s public standing, he thought the issue too momentous — and the implications for the country too large — to hinge on a decision of the court. Especially afterBush v. Gore, Roberts wanted to keep the court from overturning the political branches on so monumental a piece of social legislation.

I would suggest that Comey’s thinking, whether conscious or not, was similar: He did not want the FBI director to end up as the arbiter of the 2016 presidential election. If Clinton were not a presumptive presidential nominee but simply a retired secretary of state, he might well have made a different recommendation…

I think there’s something to that. This was a judgment call, and all sorts of factors go into judgments.

As I said before, there’s a point at which it is simply not in the national interest to reach back in time and use criminal statutes to punish those with whom one disagrees. Example: There are lots of folks who’ve always hated Tony Blair because of Iraq who now want to seem him prosecuted for it, just as there were Democrats who wanted to go back and prosecute people in the Bush administration once Obama took office (a proposition that Obama wisely dismissed).

Yep, I believe firmly in the rule of law, in the importance of having a country that is no respecter of persons. But in some cases, respect for the overall good of the country overrides consideration of the legal fate of an individual.

Comey had a judgment call to make, and he chose the less harmful option.

And if you don’t like it, remember that it was just a recommendation. It did not legally bind anyone. What he said was one man’s opinion (and also the unanimous opinion of those taking part in the FBI investigation — the opinions of professionals, not partisans). And I find his opinion defensible, even laudable.

bradwarthen.com

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