All posts by Dr. ESP

The Little Things

Politics

Yesterday, in the Supreme Court of the United States, Americans witnessed the hypocrisy of “Constitutional originalists” from the very top of Bullshit Mountain.  The most egregious example of their own judicial philosophy, oddly, had nothing to do with the most absurd arguments put forth by Donald Trump’s attorney John Sauer’s response “it depends” to the question whether a sitting president could order Seal Team Six to assassinate a political opponent.  Or “conservative” justices who appear to believe there must be hearings to determine whether overturning a free and fair election could be considered an official presidential act.

While questioning Michael Dreeben, representing special counsel Jack Smith, Justice Neil Gorsuch raised the following hypothetical.

So, for example, let’s say a president leads a mostly peaceful protest sit-in in front of Congress because he objects to a — a piece of legislation that’s going through.  And it, in fact, delays the proceedings in Congress.  Now, under 1512(c)(2), that might be corruptly impeding a proceeding, an official proceeding. Could — is that core and therefore immunized or whatever word, euphemism you want to use for that?

Keep in mind Gorsuch graduated from Harvard Law School, practiced law at a private firm for 10 years, was the principle deputy associate attorney general at the U.S. Department of Justice and served on the 10th District Court of Appeals before his appointment in 2017 to the Supreme Court.  First of all, with such a distinguished education and experience one would think he would be more precise in his questioning of a witness or solicitor.  What the hell does “in front of Congress mean?”  If it refers to a peaceful sit-in in front of the Capitol, there is little if any chance it would delay a congressional proceeding.  More importantly, neither the president or any other citizen would have to rely on immunity because this is not crime.  If only the ghost of Joseph Welch, chief counsel for the U.S. Army during the McCarthy era had appeared and asked Gorsuch, “Have you no common sense, sir?”

Equally puzzling is Gorsuch’s supposition that legislation is considered “in front of Congress.”  It never works that way.  The only joint sessions of Congress are generally ceremonial (e.g. counting of the electoral votes).  The introduction, debate and passage of bills occurs in either the House or Senate.  To which, Welch’s specter would have asked, “Have you no sense about how the legislature works, sir?”

What the confused justice must have been referring to is something akin to the June 22, 2016 sit-in organized by the late congressman John Lewis in protest of then Speaker Paul Ryan’s refusal to bring a gun safety bill to the floor for a vote in the aftermath of the mass shooting at an Orlando, Florida nightclub.  To avoid CSPAN televising the protest, GOP speaker pro tempore Dan Webster called for a recess.  If that was Gorsuch’s intent, this self-proclaimed originalist should know that the Constitution speaks directly to this issue.

First, let’s address the issue whether Lewis and his “good troublemakers” committed a crime.  Article I, Section 5 states, “Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour (sic), and, with the Concurrence of two thirds, expel a member.”  The current rule under which the House operates, in effect at the time of Lewis’ protest, allows all current and former members of the House to be on chamber floor without prior permission.  Proof of this provision was George Santos’ surprise appearance on the floor of the House during this year’s State of the Union address after having been expelled the previous December.  [NOTE:  On April 12, 2024, Representative Anthony D’Esposito (MAGA-NY) introduced a resolution that would amend House rules to “deny certain privileges” to former members who had been expelled.  According to D’Esposito, the purpose of the amendment is to “…establish new standards by which expelled frauds are barred from further staining this storied institution.”  Much less being a continuing embarrassment to his own party.]

How did the MAGA controlled House feel about sit-ins in their chamber following Trump’s election as president?  According to Wikipedia: 

On January 3, 2017, the House convened the 115th Congress and passed rules intended to prevent future sit-ins. The new rules included language against disorderly or disruptive conduct, in addition to bans against members of Congress taking pictures and video on the House floor, though an exemption for the latter occurs for events such as the State of the Union addresses. Fines are also included within the new rules, with $500 being mandated for first offenses and $2,500 for each additional offense.

All perfectly consistent with Article I, Section 6 which authorizes each chamber to make its own rules.

But the 2017 rules amendment applies only to members of the House.  Which brings us back to Gorsuch’s question about the president acting in a similar manner. To which Joe Welch’s apparition would surely materialize for a third time.  “Have you no sense of the separation of powers, sir?”  Welch would find it interesting that Gorsuch inserted the word “peaceful” into his question.  Why?  Because aiding and abetting a “violent” disruption of a congressional proceeding is no longer a hypothetical.  Which makes it all the more shocking that the MAGA justices would not immediately agree January 6, 2021 was not subject to any level of presidential immunity.

What else did Gorsuch forget?  According to his theory of originalism the Constitution only protects those rights specifically enumerated in the document with amendments and imposed on the states per the 14th Amendment.  Article II, powers of the executive, does not give the president unfettered authority to go to the floor of either chamber.  Consider the following.  Article II, Section 3 states:

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper.

Does a strict constructionist such as Justice Gorsuch not understand the meaning of the words “convene” and “adjourn?”  As was the case on September 11, 2001, President George W. Bush could have, if Congress had not voluntarily adjourned for its own safety, ordered the House and Senate to vacate the Capitol.  Or if Congress was in the middle of one of its many, lengthy scheduled recess, he is also authorized to bring them back to Washington to address a real or even perceived emergency.  However, it does not authorize him to go to the floor and disrupt a legislative proceeding. Ironically, instead of sending an armed mob to do his bidding on January 6th, he could have simply adjourned Congress and argued he was authorized to do so based on the language in Article II, Section 3.  Despite the political implications, there may not have been grounds for a second impeachment since adjourning Congress was neither a high crime or misdemeanor.

Equally important, when he is authorized to interact with the Congress, he cannot do it on a whim, the best example being the State of the Union address.  Article II, Section 3 does not specifically require an in-person address to a joint session of Congress.  Then how does this happen?  Again, according to Wikipedia:

Because the address is made to a joint session of Congress, the House and Senate must each pass a resolution setting a date and time for the joint session. Then, a formal invitation is made by the speaker of the House to the president typically several weeks before the appointed date.

Simply put, Justice Gorsuch, the president must be invited to be in either chamber, just the same as any foreign or domestic dignitary (e.g. the Pope or General Douglas McArthur) Therefore, if as he had threatened, Trump followed the mob to the Capitol on January 6th and taken the floor of either house uninvited, he would have violated his oath to faithfully defend and protect the Constitution.  What’s more, this applies not only to the legislative branch.  Imagine if Alexandria Ocasio-Cortez led a sit-in in the Cabinet room to disrupt one of Trump’s meeting because she disagreed with his family separation policy on the Southern Border.  Is there any question Trump would order Bill Barr to arrest her and charge her with criminal behavior? Or if AOC had led a sit-in that disrupted arguments before this Court in the Dobbs case?

Justice Gorsuch, to go back to your hypothetical about a whether a president leading a “mostly peaceful sit-in” to disrupt a legislative proceeding is a crime, the answer is simple.  HELL, YES.  Whether he should be prosecuted is a decision for members of Congress to make (through a criminal referral to the Justice Department) and the Attorney General to decide whether to indict based on the facts and the law. 

Most states require continuing legal education for members of the bar to maintain their certification.  Florida statutes specify the following:

(f) Education. The applicant must complete 50 hours of approved continuing legal education since the date of the last application for certification. Accreditation of educational hours is subject to policies established by the civil trial law certification committee or the board of legal specialization and education.

Based on the nonsense presented by Gorsuch and other members of the panel yesterday, perhaps the same standard should be applied to state and federal justices including those on the Supreme Court.  The “Introduction to Constitutional Law” course I took as an undergraduate at the University of Virginia seems like a good remedial class for Justice Gorsuch.  Of course, there would have to be a module on “conflicts of interest” for Clarence Thomas and Samuel Alito.

For what it’s worth.
Dr. ESP

PeckerGate

Media

As a lifelong cinephile, every chapter in Donald Trump’s political saga evokes an immediate, consistent response.  “I feel like I’ve seen this movie before.”  Former American Media, Inc. CEO David Pecker’s testimony in the Trump election interference trial is no different with one exception.  Pecker’s description of his agreement to support Trump’s 2016 campaign represents a déjà vu double feature.

Secrets and Lies

During coverage of the New York trial, multiple pundits harkened back to the days when they accompanied their mothers to the grocery store.  Each recalled seeing The National Enquirer while waiting to check out.  Their memories included examples of the outrageous front page headlines about women giving birth to alien babies and freaks of nature.  No one took it seriously. How then could a tabloid with so little journalistic integrity possible flip the outcome of the 2016 election?

As we know, even a broken clock is right twice a day.  And all it took was one or two verified stories to cloak the Enquirer in the credibility it had seldom enjoyed.  Case in point, the October 10, 2007 front page report that announced 2008 Democratic candidate for president John Edwards fathered a love-child with a campaign worker.   The narrative was initially viewed as just more Enquirer sensationalism.  However, once Edwards remained in the news as a potential Barack Obama vice-presidential running mate, mainstream media outlets picked up the story.

On August 8, 2008, Edwards admitted having an affair with Rielle Hunter, who had been hired to produce behind-the-scenes videos following Edwards on his quest for the presidential nomination.  On August 18, New York Times reporter David Carr gave the Enquirer, somewhat begrudgingly, its due credit.

There are some stories, especially ones that occur in the bedroom, where mainstream media outlets sometimes can’t venture—or at least they can’t find it in themselves to lead the charge. But it would be hard to argue that the body politic is not enriched by the recent revelations that Mr. Edwards is not who we thought he was, even balanced against the many stories the Enquirer gets wrong.

Then National Enquirer publisher (drum roll) David Pecker must have realized this was a turning point in his tabloid’s history.  With its new-found credibility in the political arena, the Enquirer could no longer be ignored by more reputable media outlets.  As we learned yesterday in a New York courtroom, this enabled actual fake news produced under the agreement between Pecker, Trump and Michael Cohen in June 2015 to rapidly move from the tabloid rack at the checkout line to the nightly news and cable outlets.

All the President’s Men

In 1972, they were called “dirty tricks.”  Among the first was the infamous “Canuck Letter.”  At the time, Maine Senator Edmund Muskie was the frontrunner for the Democratic nomination for president.  The saga begins with a handwritten letter to William Loeb, editor of the Manchester Union, postmarked from Deerfield Beach, Florida and signed by a Paul Morrison.  It accused Muskie of denigrating Franco-Americans by laughing when a campaign aide referred to them by the slur “Canucks.”  Without fact checking the source, Loeb published the letter on the front page with an editorial in which he wrote, “We have always known that Sen. Muskie was a hypocrite, but we never expected to have it so clearly revealed.”

In an emotional response at a February 26, 1972 rally, Muskie states, “The letter is a lie,” and called Loeb “a mudslinging, vicious and gutless coward.”   In what was considered unacceptable in those days, Muskie was reported to have tears in his eyes, a perceived sign of weakness.  Despite efforts to dismiss his emotional outburst, Loeb continued the attack until primary election day, and even though Muskie was the victor, the damage was already done.  During the Florida primary, bumper stickers warned Democratic voters, “Vote for Muskie or he’ll cry.”

Although the author of the letter was never definitively identified, Donald Segretti a young staff member on the Committee to Re-elect the President, took responsibility and sent Muskie the following:

October 11, 1973

Dear Senator Muskie:

I wish to personally apologize to you, your family, and your staff for activities in the 1972 Presidential campaign. Such activities are wrong and have no place in the American political process.

I trust that my public statements to that effect and my guilty plea will prevent others from getting involved in such activities in the future.

Sincerely,
DONALD H. SEGRETTI

FAT CHANCE!

Postscript:  The Common Denominator

The reason this movie keeps getting played over and over again is the fact each has the same executive producer–Roger Stone.  He was the Nixon whisperer in 1968 and 1972, the Trump whisperer in 2016 and thanks to a Trump pardon will still be spreading mischief in this election cycle.

For what it’s worth.
Dr. ESP

Satanic Reverses

Culture

Disclaimer:  Today’s post includes a discussion of two writers.  Myself and Salman Rushdie.  Therefore, let me remind everyone, I know Dr. ESP.  I collaborate with Dr. ESP.  Dr. ESP, you are no Salman Rushdie.

Anyone who writes historical fiction knows, by labeling it “fiction,” writers give themselves license to create situations and dialogue to which no one except the principals have first-hand knowledge.  In many cases, the non-documented passages are needed to address unanswered questions.  As I drafted In the National Interest, there were two issues for which the public record provided no definitive explanation.  What was Lee Harvey Oswald’s motive for killing John F. Kennedy?  And was Oswald’s employment at the Texas School Book Depository, weeks before the motorcade route became public, coincidence or due to manipulation?

I was reminded of this aspect of my book while watching Jon Stewart’s interview of Salman Rushdie last night on “The Daily Show.”  In his book Knife, an account of being attacked during an August 2022 lecture at the Chautauqua Institute and the aftermath, Rushdie admits he still knows nothing about his attacker Hadi Matar’s motive other than his support for the Islamic Revolution on social media.  And despite standing outside the Chautauqua prison where Matar is being held pending trial when, while writing his book, Rushdie returned to “the scene of the crime,” he chose not to confront his attacker.  Instead, he created a Socratic dialogue which included his idea of what Matar’s legal counsel might provide as a defense in his forthcoming trial.

Again, I felt a personal kinship with Rushdie as this was the same technique I used to create both sides of the moot court arguments as my protagonist Jonathan Sheppard explores the decision to release or withhold the journal he inherited.  My self pat on the back was, however, short lived as Rushdie explained his purpose in forging this imaginary conversation with this young man who “came out of the crowd” 34 years after an Irani Ayatollah ordered a fatwa against Rushdie, following the 1988 publication of The Satanic Verses, a satirical account of the alienation and eventual assimilation of Muslim immigrants in Britain.

I had used my creative process at best to tie up loose ends in my narrative, but mostly for its entertainment value.  Rushdie had used his to try and understand why someone who was not even born at the time of the fatwa would commit a crime that would likely incarcerate him for the rest of his life.  His was a far more noble endeavor, looking for some rationale for the irrational.  Which made me rethink the value of a fictional Socratic dialogue as a means of exploring options in complex situations, especially when the actual response, in hindsight, proved unproductive.

And, being the first night of Passover, my thoughts centered on the current status of the Israel/Hamas conflict and its impact on college campuses in the United States.  On the day after the terrorist attack, international sympathy, for the most part, was clearly with the Israelis despite lingering concerns about policies affecting Palestinians promoted by the Netanyahu government. 

History tells us any nation subject to a terrorist attack has options, including, but not limited to:

  • Diplomacy
  • A targeted military response.
  • An unlimited military response.
  • Focus on internal security to prevent future attacks.
  • Establishing an anti-terror alliance to universally condemn such attacks.
  • Some combination of the above.

Only one of these six options had the potential of inverting post-October 7 sentiment towards Israel from victim to villain.  Likewise, it was Muslim students, not their Jewish classmates, who felt unsafe on college campuses in the immediate days after the vicious and inhumane Hamas attack.    As was also the case for almost unanimous Congressional support for military assistance to Israel.  Again, only one choice could dramatically change those dynamics. And yet that is the one Netanyahu and his war cabinet chose.

When Jon Stewart asked Rushdie, “How are you doing,” he told his host he feels better now than he did before the attack.  And when queried if he was apprehensive about Matar’s forthcoming trial and the possibility of being called to testify, Rushdie replied he is only a fact witness and feels no need to confront his attacker.  He then referred back to standing in the “car park” (British for parking lot) outside the Chautauqua prison.  “I am a free man outside; he is locked up inside.”

I cannot help but wonder if the Israeli government had conducted a similar Socratic process before launching their version of “shock and awe” on Gaza, would they have avoided a situation where both sides are hopelessly and indefinitely “locked up inside” prisons of their own making.

For what it’s worth.
Dr. ESP

Easy A

Politics

During a recent joint appearance with President Joe Biden, pro-Palestinian protesters interrupted Barack Obama.  To which, after stipulating that he shared their concerns about the humanitarian crisis in Gaza, Obama said, “No, no, you can’t just talk.  You also have to listen.”  Picking sides in the on-going Israel/Hamas conflict is tough, even for life-long supporters of Israel including Biden, Senate Majority Leader Chuck Schumer and me.  If there were a college course, based on Socratic dialogue, to determine a solution to this decades-old conundrum, participants would be hard-pressed to come up with a quick solution.

Even a genie would be stumped, as evidenced by a classic joke I first heard told by the late Gilbert Gottfried.

An old man finds a lamp.  When he picks it up, a genie appears and offers to grant him one wish.  The old man pulls a map of the Middle East out of his pocket and says, “This region has been torn by hatred, death and destruction for thousands of years.  I wish everyone could live together in peace.”

The genie replies, “I’m sorry, but even I can’t do that.  Is there a another wish I might grant you?”

The old man says, “I’ve been married for 50 years, and in all that time, my wife has never given me a [specific sex act.]  I wish she would do this just once before we die.”

The genie hesitates, then says, “Can I see that map again.”

This morning, I realized there is an approach which might translate into an “easy A” in that class.  And though I find myself conflicted by the path to this simple solution, it results from comparing the positions of Representative Rashida Tlaib (D-Michigan 13th District) and my own congressman Aaron Bean (MAGA-Florida 4th District).  When Tlaib was introduced as a guest on today’s edition of MSNBC’s “The Weekend,” I considered turning it off.  But Obama asked me “to listen;” so I did.

Tlaib began by saying she was glad the national security supplemental appropriation had been broken into three separate bills.

  • She said she will enthusiastically vote for Ukraine funding to deter Putin’s invasion and potential threat to all of Eastern Europe and possibly the world.  And she castigated House Speaker Mike Johnson and MAGA representatives for taking six months to consider the same measure that had been on the table since October 2023.  I couldn’t argue with that.
  • She then said she was going to vote against aid to Israel even though she supported the Biden administration’s efforts to join with Britain, and regional Arab allies to thwart Iran’s missile attack against Israel.  She would have voted for aid if it were limited to defensive weapons, e.g., to ensure the future viability of the “Iron Dome.”  She also said return of all the October 7th hostages should be a priority.  Her “no” vote was not a vote against Israel, but a vote against giving unrestricted assistance to Benjamin Netanyahu who seems unwilling to heed the international community’s concern about more civilian deaths in southern Gaza. Sounds like this “radical progressive” is lining up with an increasing super-majority of Israeli citizens

This does not excuse Tlaib for some previous comments about Israel and the Holocaust for which she was roundly criticized by members of her own party.  [MAGites, are you listening?]  Which brings me back to my own congressman Aaron Bean.  Upon returning from a “factfinding” trip to Israel, Bean issued the following statements.

Our message is unmistakable: We stand with our dear ally Israel shoulder to shoulder, side by side, hand in hand, today, tomorrow, and always.

While President Biden’s weak-kneed appeasement continues to embolden Iran-backed Hamas, I traveled to Israel to meet with senior officials, leaders, and soldiers who are fearlessly fighting each day for survival. We cannot abandon Israel in her darkest hour.

Sounds more like an “Israel First” policy or “Israel, right or wrong.”  On that basis, Bean must think the humanitarian crisis in Gaza and the deaths of civilian women and children are okay.  Which begs the question, if Israel took steps that precipitated a full-scale regional war, or worse, you would stand by them side-by-side?

And in true MAGA fashion, the second statement is peppered with lies and hypocrisy.  The evidence leading up to October 7, 2034 suggests Netanyahu is the only one who appeased Hamas.  If Bean is so concerned about soldiers “fearlessly fighting each day for survival,” why has he joined those who held up funding for Ukraine for six months?

Which brings me back to Gottfried’s joke and its relevance to the college course on the Israel/Hamas war.  When the genie says that peace in the Middle East is beyond his powers, instead of asking for personal gratification, what if the old man had asked, “Can you at least make sure this does not lead to nuclear war?”  The genie nods his head.  “I already have. Why do you think I asked Obama to give that speech?”  Nuclear war happens when everyone talks and never listens.

For what it’s worth.
Dr. ESP

Nature v. Nurture

Culture

This century has not been kind to the American system of justice.  It has been accused of being two-tiered.  At times, it defies logic, as in the case of Kyle Rittenhouse.  Yesterday, we learned that “law and order” is not the only American value which is applied depending on who you are, not what you do.

Case in point, Senator Tom Cotton (MAGA-Arkansas).  On May 10, 2023, Cotton introduced the Campus Free Speech Restoration Act, which according to his accompanying press release, “protects the First Amendment rights of students at public universities from unconstitutional speech codes and so-called free speech zones.”  Among the provisions of the proposed legislation are (again from his press release):

  • Prohibit public colleges from restricting free speech and expression on campus.
  • Create a cause of action in federal court for the Attorney General or other parties to challenge restrictions on speech and expression on campus.
  • Make sure the requirements of the Act do not apply to colleges and universities controlled by religious institutions.

Okay, the First Amendment promotes free expression.  And anyone violating another’s right to free expression should be subject to due process for alleged violations.  But seriously Senator, if a student at Notre Dame University accuses the head football coach of being an overpaid incompetent, you’re okay if the Board of Trustees determines such blasphemy is punishable by suspension or expulsion.  But religious exemptions for rules that apply to everyone else is a matter for a different day.

Why?  Because yesterday the distinguished gentleman* from Arkansas took a quite different approach when it came to protesters in four U.S. cities who blocked highways to express their disapproval of what they believe is a disproportionate Israeli response to October 7 and support for a Palestinian State.

You have to get to these criminals early.  If something like this happened in Arkansas on a bridge there, let’s say there would be an awful lot of wet criminals tossed overboard, not by law enforcement, but by people whose road they were blocking.  If they glued their hands to car or pavement, well, pretty painful to have their skin ripped off, but I think that’s the way we would handle it in Arkansas.  And I’d encourage people anywhere, who get stuck behind criminals like this who are trying to block traffic, to take matters into their own hands.  It’s time to put an end to this nonsense.

Now I understand people might get upset when a protest inconveniences them.  But in the MAGA universe, peaceful protesters are “criminals,” and violent protesters on January 6th are “patriots” and “hostages.”  And where was Tom Cotton when New Jersey authorities shut down the George Washington Bridge to punish Fort Lee mayor Mike Sokolich for not supporting Governor Chris Christie’s bid for reelection?  Or when neo-Nazis blocked downtown streets in Nashville?  Or when “The People’s Convoy” blocked access to Washington, D.C. to protest COVID-19 restrictions? In other words, when Tom Cotton encourages people to attack protesters, he makes a clear distinction between “my people” and “you people.”

And so much for due process.  Cotton might as well have been one of the faux federales in John Huston’s  1927 film The Treasure of the Sierra Madre, “We don’t need no stinking charges.  Or stinking trials. Or stinking judges and juries.”  Just imagine if pro-Israel Christian nationalists were blocking a roadway in Dearborn, Michigan preventing the city’s large Muslim population from access to their mosque.  Does anyone believe Cotton would approve of Muslim vigilantes tossing them over the Miller-Rotunda Bridge?

All of this aside, I once again was struck by an observation by Joe Scarborough.  He prefaced his comment by acknowledging his personal friendship with Tom Cotton’s parents before adding, “I know they did not raise him to be like this.”  Based on that information, it is highly unlikely the senator’s warped perspective on American justice is attributable to familial DNA.  Which brings me back to the title of today’s post.  How many Americans, who 10 years ago would be appalled by Cotton’s call for vigilante violence, now support his message and might even participate in the equivalent of modern day lynchings?

This November was already a choice between clear alternatives.  Democracy v. Autocracy.  Allegiance to the Constitution v. Personality Cult.  National Security through Global Alliances v. Isolationism.  As someone who believes in the adage, “Children are not born with hate; someone teaches us to hate,” I now attribute a propensity toward political violence as largely a question of environment, an environment normalized by the MAGA Party.  So add one more item to the list of choices.  Due Process v. Vigilantism.  One presidential candidate calls for retribution and beating the hell out of people.  The other tells us, “We can be better than that.”

Given the choice between “Rip their skin off” or “That’s not who we are,”  I trust most Americans will eventually opt to be members of Team Better Than That.

*”Distinguished gentleman” is Congressional parlance for “son of a bitch.”

For what it’s worth.
Dr. ESP