All posts by Dr. ESP

Deep State EXPOSED

Politics

The response outside the Supreme Court to the June 13, 2024 decision in the case of FDA v. Alliance for Hippocratic Medicine was more a “phew” than a “hooray.”  The reason being, rather than ruling on the merits, the court dismissed the plaintiffs’ attempt to nullify FDA approval of the abortion drug mifepristone on a technicality, lack of standing.  Speaking for the Court, Justice Brett Kavanaugh, acknowledging the plaintiffs “have sincere legal, moral, ideological, and policy objections to to elective abortion,” wrote:

But under Article III of the Constitution, those kinds of objections alone do not establish a justiciable case or controversy in federal court.  Here, the plaintiffs have failed to demonstrate that FDA’s relaxed regulatory requirements likely would cause them to suffer an injury in fact. For that reason, the federal courts are the wrong forum for addressing the plaintiffs’ concerns about FDA’s actions. The plaintiffs may present their concerns and objections to the President and FDA in the regulatory process, or to Congress and the President in the legislative process.

Standing in court requires evidence of actual harm.  And while the plaintiffs argued that the availability of abortion drugs such as mifepristone might weigh heavily on their consciences, Kavanaugh said, in not so many words, “No one is forcing you to recommend it for your patients.”

Kavanaugh, in the above language, wittingly or unwittingly, exposed an example of the massive conspiracy MAGA world calls the “deep state” dating back to the drafting of the Constitution and applied specifically to FDA with the passage of the Federal Food and Drugs Act in 1906.  According to FDA historian John P. Swann, the 1906 legislation created the FDA to replace the Bureau of Chemistry in the Department of Agriculture and authorized the new agency to (1) go into plants where food and drugs were produced and (2) regulate the labeling on such products.  However, it did not require pre-commerce approval for drugs.

Pre-market approval of drugs was authorized by the Congress in 1938, following over 100 deaths related to the production and sale of elixir sulfanilamide which contained a toxic ingredient.  With the sole focus on safety, the 1938 amendments did not address the efficacy of a marketed drug.

In response to the 1962 deaths and infant deformities connected to the use of thalidomide, Congress passed the Kefauver-Harris Drug Act which expanded FDA’s regulatory authority related to the efficacy of a drug before it could be marketed in the United States.  In subsequent years, Congress further expanded FDA’s regulatory authority including, but not limited to, “orphan” drugs which were used to treat rare diseases, requirements to inform users of the specific dangers and side effects of a medication and the ability to charge drug manufacturers fees to cover the the agency’s cost of drug evaluations.

One point of contention in the mifepristone case was the FDA’s use of REMS (Risk Evaluation and Mitigation Strategies) to make the the drug available initially and later to expand its use up to 10 weeks following conception.  REMS was authorized by Congress in 2007 amendments to the FDA Act.  REMS purpose, according to the Center for Health Policy at the Brookings Institute, “…is to ensure that the benefits of a given medical product outweigh the associated risks.”

To recap, four private organizations argued before the Supreme Court that a cabal of bureaucrats in the FDA have exceeded their authority by making a drug available to the general public in violation of the Constitution.  Where could they get such an idea?  Maybe from former House Speaker Newt Gingrich.  In a March 6, 2017 interview with New York Times reporter Julie Davis, Gingrich shared the following.

What President Trump is discovering is that he has a huge, huge problem underneath him, and I think he’s shocked that the system is as hostile as it is.  We’re up against a permanent bureaucratic structure defending itself and quite willing to break the law to do so.

If that is the case, why didn’t Donald Trump direct the Department of Justice to investigate, indict, convict and jail these renegade conspirators?  Perhaps because the defendants would include the Founding Fathers who in Article I, Section 8 of the Constitution granted Congress the power “to regulate Commerce with foreign Nations, and among the several states, and with Indian Tribes.”  And while the Supreme Court denied Congress could wholesale delegate this regulatory authority, it authorized delegation by legislation for specific activities.  And then there are all those Senators and Representatives who, over time, authorized FDA and added specific regulatory authorities to its portfolio.  And finally, all the staff at the FDA who followed the Administrative Procedure Act to promulgate and implement the regulations assuring public input.  To paraphrase Amity Island sheriff Martin Brody in Jaws, “We’re going to need a bigger courtroom!”

As if that was not enough proof, let us not forget the latest affirmation that the so-called “deep state” is grounded in the Constitution, using plain English even Clarence Thomas and Samuel Alito can understand.  Reviewed and affirmed by the Supreme Court.  And authorized by the ELECTED representatives of the American people.  And last week blessed by Justice Kavanaugh, who suggested the plaintiffs in the mifepristone case can address their grievance through the appropriate regulatory and legislative processes.

“Deep state,” consider yourself exposed.

For what it’s worth.
Dr. ESP

The Worst of Times

Culture, Politics

Americans love to celebrate the events and people responsible for our nation’s 248 year old experiment in government “of the people, by the people and for the people.”  Premiere among national holidays is July 4, Independence Day, the day the experiment left the laboratory. Some, such as Juneteenth National Independence Day (June 19), laud the addition of previously excluded populations from the full benefit of the American experience.  Though I would argue it is way past time for Congress to designate August 18 a national holiday, the day in 1919 when Vice-President Thomas Marshall signed the 19th Amendment giving women the right to vote.  On Labor Day, we acknowledge the work ethic of those who built and maintain the physical and organizational infrastructure that underpins the nation’s economic success.  Others, more observances than celebrations, honor the men and women who fought and died to preserve the principles and institutions that ensure these benefits for future generations.  These holidays represent the best of times, when Americans moved ever closer to the ideal of a “more perfect union.”

Unfortunately, many of these advances are responses to equally sad days in American history.  And as the memory of these events fade in the national consciousness, perhaps it is time for Congress to designate days of remembrance and reflection to remind each of us why so many of our rights and benefits were not automatic.  Let me suggest just a few.

August 20, 1619.  Kidnapped Angolans first arrive in the British colony of Virginia, the beginning of almost 250 years of slavery in North America.

December 6, 1830.  President Andrew Jackson, in a address to Congress promotes removal of Native Americans from their homelands “to relieve Mississippi and Alabama of Indian occupancy and enable those states to advance rapidly in population, wealth, and power.”

December 29, 1890.  The Wounded Knee Massacre during which American soldiers killed more than 300 members of the Lakota nation.

May 31, 1921.  Known as the Black Wall Street Massacre, a two-day rampage by white supremacists in Tulsa, Oklahoma resulting in the destruction of black-owned businesses and residences and approximately 300 deaths.

February 20, 1939.  Twenty thousand Americans attend a Nazi rally at Madison Square Garden sponsored by the the German American Bund, a pro-Hitler organization.

Each of these events ran counter to the promise embodied in the Declaration of Independence.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

In this context, I suggest it is time to add one more day of remembrance and reflection–June 24, 2022, the second anniversary of the Supreme Court decision in Dobbs v. Jackson Women’s Health Organization.  For the first time in American history, the Supreme Court repealed a right previously granted by the Court.  Furthermore, the 6-3 majority, several of whom swore before the U.S. Senate during their confirmation hearings that Roe v. Wade was settled law, overruled every lower court ruling which upheld Roe.

U.S. District Court Judge Carlton W. Reeves, who originally heard the case, wrote Mississippi has “…no legitimate state interest strong enough, prior to viability, to justify a ban on abortions.”  On behalf of the Fifth District Court of Appeals, following a 3-0 decision to uphold Roe, Judge Patrick Higginbotham wrote:

In an unbroken line dating to Roe v. Wade, the Supreme Court’s abortion cases have established (and affirmed, and re-affirmed) a woman’s right to choose an abortion before viability. States may regulate abortion procedures prior to viability so long as they do not impose an undue burden on the woman’s right, but they may not ban abortions.

Yet, when appealed to the Supreme Court, Justices John Roberts, Samuel Alito, Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett might as well have exchanged their robes for Melania Trump’s raincoat with the words, “I really don’t care, do you?”  They did not care that every lower court had abided by a deference to legal precedence that they had publicly sworn to honor. They did not care that there was no dissension among lower court judges which is usually required to trigger Supreme Court consideration.   Nor did they care that the Ninth Amendment to the Constitution reads:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Which begs the question of these supposed originalists, where is the specific language in the Constitution which denies women the right to make decisions about their reproductive health without interference from the government?

And most importantly, they did not care the reasoning behind their decision, embodied in Alito’s majority opinion and especially in Thomas’ concurring opinion, opened a Pandora’s box that potentially nullifies legal precedence and settled law in every previously decided case. Thomas specifically pointed to past decisions related to the right to contraception (Griswold v. Connecticut), bans on homosexual activity (Lawrence v. Texas) and gay marriage (Obergefell v. Hodges).

…in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is “demonstrably erroneous,”

Notably, Thomas left out Loving v. Virginia, without which he could possibly have been prosecuted and jailed for having married his white, insurrectionist wife, ironically, named (drum roll) Virginia.

June 24, 2022 is a truly sad day for America which needs to be observed annually.

For what it’s worth.
Dr. ESP

The Wall Street Enquirer

Media

The Past Is Prologue.

~William Shakespeare/The Tempest

For those with very short-term memory issues, let me remind you of the three key elements in the conspiracy between Donald Trump and America Media, Inc. publisher David Pecker for which Trump was convicted on 34 felony charges.

  • Publish good stories about Trump.
  • Kill bad stories about Trump.
  • Make up stories about Trump’s opponents.

After such a decisive verdict from 12 of Mr. Trump’s peers, one would think “main stream media” outlets would understand the difference between journalism and propaganda.  Based on the June 6, 2024 front-page article about President Joe Biden’s mental acuity in the Wall Street Journal (WSJ), it is obvious publisher Almar Latour and editor-in-chief Emma Tucker did not get that message.

The article titled “Behind Closed Doors, Biden Shows Signs of Slipping,” according to the WSJ, is based on “accounts from both Republicans and Democrats.” It did not take long for real investigative journalists to provide evidence that the only thing happening behind closed doors is that MAGA interviewees were telling the WSJ the exact opposite what THEY were saying in private.  The best example involves former House Speaker Kevin McCarthy. He told the WSJ that “[Biden] would ramble.  He always had cards.  He couldn’t negotiate another way.”

Kevin, it was a frigging budget/debt ceiling negotiation.  Could you reel off revenue, expense and interest numbers from memory?  And there are innumerable photographs with you speaking from cards.  Then you complained that he seemed to rely on staff.  If it was so important that the president be the only spokesman for the administration, was not the same true for you?  Yet you delegated further negotiations to representatives Garret Graves (LA) and Patrick McHenry (NC).  But don’t take my word for it.  Immediately following the debt agreement, McCarthy told Capitol Hill reporters that Biden had been “…very professional, very smart.  Very tough at the same time.”

And look at the results. Biden got a two-year debt ceiling deal the House Democratic caucus would support, and Kevin McCarthy lost his job.  How ironic is it the Wall Street Enquirer questioned Michael Cohen’s veracity in order to exact revenge against Trump because the latter did not offer him a White House job?  Yet, never considered McCarthy’s motive for changing his tune to bolster the WSJ’s hit job might be the fact Biden ate his lunch and cost him the third most powerful position in America.  Is this not just one degree of separation from the National Enquirer’s making up stories about Trump’s opponents?

To recap, Rupert Murdoch and the WSJ have grabbed the baton from David Pecker and the actual Enquirer.  In fact you can make the case based solely on one edition (June 14, 2024).

  • Print good stories about Trump.  “Virginia Hasn’t Backed a Republican for President in Two Decades. Is It About to Flip?”
  • Kill bad stories about Trump. No mention of Trump’s calling Milwaukee, the site of the Republican National Convention, a “horrible city.”
  • Print bad stories about Trump opponents. “Merrick Garland Earned Congress’s Contempt.”

The only difference is we do not know (yet) if the similarity is based on a unilateral decision by Murdoch and the WSJ to boost their preferred candidate or a meeting between WSJ operatives and the Trump campaign.  For all we know it might have been hosted by Harlan Crow at Bohemian Grove.

POSTSCRIPT: I KNOW IT’S WRONG

Georgia O'Keeffe on the Art of Seeing – The MarginalianI find it hard to pass up a great joke just because it is politically incorrect.  This morning I crossed that red line when I learned that Georgia O’Keeffe was born in Sun Prairie, Wisconsin, a one-hour drive on I-94. west of Milwaukee.  My first thought?  Instead of the actual headline in yesterday’s Milwaukee Journal Sentinel, “Donald Trump calls Milwaukee ‘a  horrible city’ weeks before RNC comes to town,” would a more appropriate headline be, “Trump Grabs Milwaukee by the O’Keeffe.”

For what it’s worth.
Dr. ESP

Two Verdicts

Culture

This post is not a comparison of the verdicts in New York and Delaware.  It is about the second verdict delivered by a jury of Hunter Biden’s peers.  One completely overlooked by the post-verdict analysts on every major news outlet.

Most of the attention is being paid to the political impacts, especially which of the two major presidential candidates is the beneficiary of the guilty verdict.  The early consensus was Joe Biden, for the following reasons.

  • The split screen with Biden’s respect for the rule of law on one side versus Donald Trump’s ranting about a rigged system on the other, a contrast that should resonate with still undecided voters.
  • Voters with family members and friends who are dealing with drug addiction will identify with the pain the Biden family faces in the wake of the guilty verdict.
  • A guilty verdict in the “friendly confines” of Delaware undercuts Trump’s and his lemmings’ malarky that Hunter had the benefit of a venue populated by individuals who likely had voted for a Biden (Joe or Beau) at least once.

However, there is one more reason.  With this jury’s demographics, most legal pundits thought a hung jury was likely.  And were surprised it took just three hours of deliberations for the panel to reach a unanimous decision.  I would argue the quick result was due largely to those very demographics and the fact that members of a  jury can put aside their partisan loyalties, but it is infinitesimally harder to cast out their values.

Delaware is ranked #12 in the U.S. for gun law strength, according to the non-profit Everytown for Gun Safety.  In recent years, the state legislature has enacted laws that include:

  • Increasing the age for handgun ownership from 18 to 21.
  • Requiring a permit to purchase a gun.  To obtain a permit, applicants must provide their fingerprints and attend gun safety training.
  • Increasing protection for victims of domestic violence.
  • Requiring secure storage and preventing child access.
  • Prohibiting certain assault weapons originally designed for military use.
  • Limiting magazine capacity to 17 rounds.
  • Repealing special immunity for gun manufacturers.

In other words, it did not matter who the defendant might be.  Delaware residents favor sensible gun safety regulation, and their 12 representatives on the Hunter Biden jury would not be hypocrites and selectively apply this core value.  As another recently convicted felon would say, “This jury would convict Mother Teresa of violating gun laws in Delaware.”

This jury, by convicting the president’s son, may have further tilted the sanity scale in favor of a Biden victory in November.  A recent decision by the 5th District U.S. Court of Appeals, “ruled that drug users shouldn’t automatically be banned from having guns.” (NBC News) If affirmed by the Supreme Court, the justices will again be siding with a minority, Americans who believe the Second Amendment is absolute.  Today, a carefully vetted sample of Delaware voters, told America they believe universal background checks are not too much to ask of someone who wants to own and operate a deadly weapon.  They believe no one needs an assault weapon to ensure their personal safety.  They believe law enforcement, following due process, should be able to confiscate guns from individuals who represent an imminent danger to themselves and others.

In short, MAGA world believes drug addicts should be able to purchase firearms.  Joe Biden supports sensible gun safety laws.  And his refusal to intervene in his own son’s violation of such laws is proof positive of his commitment to this position.  One more irrefutable side-by-side comparison of the choices voters face this November. 

Ironically, Biden previously scheduled an address at a Washington, D.C. training session for gun safety activists, sponsored by Everytown for Gun Safety, three hours after his son was convicted of violating federal gun purchase and ownership laws.  Attendees would have understood if he cancelled and went to be with his son in Delaware.  But that’s not who he is.  Unlike his presumptive opponent, being president is not about public versus personal interests.  Joe Biden understands the connection between the two and that there is time for both.

For what it’s worth.
Dr. ESP

In the National Interest II

Random Thoughts

Based on the success of my first novel In the National  Interest, I wondered if there was room for a new fictional genre, implausible conspiracy theories in which the motive and participants were unimaginable.  However, as with my account of John F. Kennedy’s assassination, making the implausible possible depended on the use of the public record to back up the story.  In the National Interest, the counter-intuitive narrative that Kennedy’s death was engineered, not by enemies, but a close advisor at the request of the president himself.  The details are laid out in a contemporaneous journal maintained by one of the individuals tasked with planning and carrying out the events in Dallas on November 22, 1963.

Following last Thursday conviction of Donald Trump on 34 counts of falsifying business documents to coverup a sexual encounter with an adult film actress right before the 2016 presidential election, I wondered if this format that worked once, might work again.  The premise was simple.  Was there something not quite kosher about the relative ease with which the jury so quickly came to a unanimous verdict on all counts?  If so, had someone who put a thumb on the scale kept a journal of the process he or she used?  And who might that be, especially if it was someone least expected to want to see the ex-president go down?

NOTE:  The following is an abridged version of a fictional account of the behind the scenes conspiracy to ensure Donald Trump would be convicted using the public record including transcripts of the trial.

My first clue something was afoot came when, the evening after Donald Trump’s conviction, CNN anchor Kaitlin Collins asked lead defense attorney Todd Blanche whether he or his client was responsible for the defense strategy.  In response Blanche told Collins he and Trump made decisions as a team, adding the following justification which was contrary to everything I had ever heard about the attorney/client relationship in a criminal trial.

It was both of us.  If there’s a lawyer that comes in and says that they’re in charge of their defense strategy, they’re not doing a service to their client.

Todd Blanche is no Rudy Giuliani or Jenna Ellis, both of whom have lost their licenses to practice law for malpractice in the service of Trump.  He had experience as a prosecutor and was well thought of in New York legal circles.  Moreover, he had resigned as a partner in one of Wall Street’s most prestigious firms, moved to Florida, bought a home near Mar-a-Lago and started his own firm where Donald Trump would become his primary client.  According to the New York Times, Blanche’s former colleagues during his tenure as prosecutor in the U.S. attorney’s office in the Southern District of New York are baffled by “a striking career move–forfeiting a lucrative law firm partnership to represent a man notorious for cycling through lawyers and ignoring their bills.”

The New York trial is only one of three in which Blanche Law (his new firm) is representing Trump including the Mar-a-Lago documents and the federal January 6 cases.  In these cases, Blanche and his team have focused on ensuring neither goes to trial before the November 5, 2024 election.  One can only imagine why a lawyer who had to deal with Trump’s in-court and out-of-court behavior in a case he had the best chance of winning would want to risk becoming known as a three time loser if the Supreme Court and Aileen Cannon ever let the either two go to trial.  UNLESS, having played in Trump’s legal sandbox for years before the current spate of indictments–he also represented Paul Manafort–he decides, in the national interest, maybe I should help take down this narcissistic psychopath.

If so, he then had to ask, how could I do this?  To see the answer, all you have to do follow the New York falsified business records trial.  Consider the following lists of behaviors and arguments which certainly contributed the jury’s guilty verdict.

  1. Involve Trump in decisions related to his defense knowing he will “direct” you to focus on messaging rather than the evidence and the law.
  2. Let Trump think that Juror #2’s presence on the panel, because he included Truth Social as one of his news sources, made a hung jury a slam dunk.  On that assumption, Trump was convinced he could now use the trial for political messaging without fear of a conviction.
  3. Unleash Trump to attack the judge, judge’s staff, witnesses and jury knowing it would result in a gag order his client would violate, irritating the judge.  All the while, standing stoically beside him to cover his complicity in Trump’s self-destructive behavior.
  4. In your opening statement, tell the jury Trump did not have sex with Stormy Daniels.  The jury would know it was a lie, and therefore could not trust anything else Blanche said.
  5. When Trump, for some reason, does not demand that his defense team challenge the accounts offered by David Pecker and Hope Hicks, let him have his way.  Was Trump afraid they, especially Pecker, had even more dirt on him?
  6. Obviously, vendetta-seeking Trump wanted to use the trial to destroy Stormy Daniels?  Instead, Blanche and his co-counsel Susan Necheles decided to slut-shame her, making her more of a sympathetic witness than she deserved to be.
  7. Trump’s motive for dealing with Michael Cohen was the same.  How could Blanche make this backfire?  First, bore the jury to sleep with hours of cross-examination that achieved nothing except to have Cohen simply confirm everything he had admitted during direct questioning.  Second, set up a “gotcha” moment which, maybe just maybe, Blanche suspected the prosecution could undercut with a time-synced video of Trump and his “bag man” Keith Shiller.
  8. Trump tells the defense team they have to call Robert Costello to bury Cohen, based on Costello fiery testimony before House Republicans accusing the Biden Administration (without evidence) of weaponizing the Department of Justice.  Blanche knows it will be a disaster based on the emails and text messages provided by the DA’s office during discovery.  But he gives Trump his wish anyway.
  9. In his final summation, Blanche continues to tell the jury the payments are for legitimate legal services, something he knows is not true and nobody on the jury will believe.
  10. Still unsure if he has convinced the jurors that Trump should be found guilty, Blanche hammers the final nail into his client’s coffin.  In his closing he says, “You cannot send someone to prison, you cannot convict somebody based upon the words of Michael Cohen.”  Blanche knew this inappropriate behavior, referencing sentencing when the juror has no role in that process, would infuriate Judge Merchan.  And Merchan would give the jury curative instructions which would telegraph his displeasure.

One or two unintentional mistakes by a legal team are understandable during a seven week trial.  But ten suggests a strategy.  And there are only two explanations.  Knowing they could not win on the evidence, Blanche risked his reputation so Trump’s appeal lawyers could point to these “errors” and suggest Blanche and his team were guilty of malpractice.  Or, having become frustrated with Trump’s trying to play lawyer, Blanche decided, “I’ll show this know-it-all SOB just how stupid he is.  And I dare him to accuse us of misrepresenting him.”

Where is Occam and his razor when we really need them.

For what it’s worth.
Dr. ESP