All posts by Dr. ESP

What You Don’t See

Culture

There should be some limits to the kinds of weapons we can own but the gun people don’t think so. “I need an automatic weapon to defend myself.”  Really?  You can’t defend yourself with a pistol?  You have a constant onslaught of enemies rushing onto your lawn so you need 100 rounds a minute to mow them down?  If you’re that much of an ass you shouldn’t have a butter knife.

~Comedian Costaki Economopolous on the 2nd Amendment

In my “Imagination and Entrepreneurship” class at Miami University, I would start any discussion about the importance of observation with the following mental “warm-up” exercise.

Which way is this bus moving?

The solution is simple once you recognize this side of the bus is all windows. Can you imagine what the other side of the bus looks like?  There would be doors as well as windows.  Where would the front door be?  Opposite the window on the left, i.e. where the driver sits (unless you live in Great Britain or other countries where the driver sits on the right side of the vehicle).  Therefore, the bus must be moving to the left.  Consider this as the visual equivalent of reading between the lines of a manuscript to fully understand the author’s meaning.

Sadly, I was reminded of this exercise over the weekend while watching a video clip of a 21-year-old assailant with an assault rifle entering a Dollar General store in Jacksonville.  Why?  Because there are two perspectives from which we can examine this event. How many times have we been exposed to “this side of the bus” since the national assault weapons ban expired in September, 2004?  A well-armed loner, on the offense, staking out a location where he is sure to find his intended targets.

Now imagine the other side.  Instead of a front page headline or breaking news on CNN about a gunman (and they are almost exclusively male) leaving his residence with  an AR-47 to “hunt” his prey, how many times is the story about a property owner holding off a horde of invaders with his assault weapon? I found just two instances via a Google search.  These are the rare exception.  In every other case, a shot gun or handgun was sufficient deterrence.

I also Googled the question, “Why do you need an assault weapon for protection?”  Among the numerous hits was a March 2021 interview by then Fox News Sunday host Chris Wallace with (drum roll) South Carolina Senator Lindsay Graham.  Graham explained:

I own an AR-15. If there’s a natural disaster in South Carolina where the cops can’t protect my neighborhood, my house will be the last one that the gang will come to because I can defend myself.

To be clear, Graham claims it is the intersection of these four factors that justify his packing an assault weapon.

  • He lives in an otherwise unprotected house.
  • Gangs are a present danger in his neighborhood.
  • South Carolina law enforcement is inadequate to handle an emergency.
  • A natural disaster creates the environment for violent crimes.

Graham resides in a 10,000 square foot McMansion in Clemson, South Carolina estimated to be worth $18 million.  Although I could not confirm whether the house is in a gated community, it is surrounded by equally impressive residences.  Most such communities have private security to guard the entrance and patrol the neighborhood.  Additionally, I am sure Graham’s home has its own electronic security system.

How about those ever present gangs (a dog whistle if I ever heard one.)  The crime rate in Clemson is less than half of that for the state of South Carolina.

Even if there is no private security, Clemson, like many college towns, has more police and emergency personnel than the average city.  Law enforcement in Graham’s jurisdiction is provided by the municipal police department and Clemson University’s security force.

All of the above would be irrelevant if there were no natural disasters to trigger Graham’s anticipated crime wave.  But this is the one thing he got right. Since 2000, South Carolina has had more than its share of hurricanes, tornadoes and coastal flooding, many of which resulted in FEMA emergency declarations.  Hurricane Kyle (2002).  Hurricane Gaston (2004).  Hurricane Hanna (2008).  Hurricane Dorian (2019) Hurricane Earl (2010).    Hurricane Zeta (2020).  Hurricane Ian (2022). A series of tornadoes in April 2020.

And yet neither the Senator or any other South Carolina resident is reported to have needed an assault weapon to deter those pesky “gangs” during any of these disasters.  Considering its projected path, Hurricane Idalia will again test Graham’s hypothesis sometime around noon on Thursday.  However, based on his behavior since January 6, 2021, we are more likely to find the Senator hunkered down at Mar-a-Lago than playing Rambo at his Clemson residence.

For what it’s worth.
Dr. ESP

Legal TRAPpings

Politics

For anyone who, like myself, has been a public sector employee and been interviewed, deposed or testified in a civil or criminal investigation, Monday’s evidentiary hearing in which former chief of staff Mark Meadows and former assistant attorney general Jeffrey Clark make their case to have their pending Fulton County trials assigned to a federal court brought back a flood of memories.  More importantly, the proceedings will involve some questions of law which to my knowledge have been largely ignored during the media coverage.  Provisions which allow the prosecution to lay a statutory trap to bolster their case.

Meadows has argued he was only doing his job when he placed calls or scheduled meetings with election officials in Georgia on behalf of the president. Expect his legal team to repeatedly declare, “That’s what chiefs of staff do.”  If that is the case, it is unfortunate there is no law preventing taxpayers having to fork over Meadows’ senior executive salary ($183,000/year) to the equivalent of an appointments secretary.  The prosecutors will no doubt respond, “Does your job description include making calls and setting up meetings with election officials for the sole purpose of asking a state official to manipulate the votes in a previously certified outcome?” If Meadows is in the witness chair, he might respond, “I set up all kinds of meetings on all kinds of topics.  I do not see how the substance of the president’s subsequent discussion makes a difference.”

In a Perry Mason moment, the prosecution continues, “Mr. Meadows, you do realize you have just confessed to a violation of the Hatch Act.  Under the Act, you are prohibited from political activity on federal time using federal resources.  You cannot transmit petitions for such purposes using government issued phones, computers or email.  And most importantly, you cannot use your official authority or influence to interfere with an election.  Mr. Meadows, did you do ANY of these things?”

No one has ever gone to prison for a violation of the Hatch Act.  Most infractions result in a warning or reprimand.  In the most egregious cases, an offender is fined and/or terminated.  If Meadow’s lawyers were really interested in their client’s welfare, they would request a recess, confer with their client and then tell Fani Willis and Jack Smith that Meadows will plead guilty to violating the Hatch Act multiple times, pay the appropriate fine and testify for the prosecution in both the federal and state trials.  Meadows can then spend the rest of his life with his family in the Macon County, North Carolina trailer he never owned or lived in,  where he claims to have voted in 2020.

Which brings us to the second trap, waiver of self-incrimination.  Willis’ filings include 161 specific acts which the prosecution claims are evidence of a criminal enterprise to overturn the results of Georgia’s presidential election.  However, as every legal expert explains, the challenge for Willis and her team is to prove the defendants’ intent.  The filings suggest she has the receipts to make her case including recorded conversations, text messages, draft documents, etc.  Refuting the prosecution’s claims may require the defendants to testify on their own behalf.  Meadows’ and Clark’s lawyers will help them shine the most favorable light on their actions during direct examination.  But what happens when the prosecution holds up tangible evidence to Meadows and asks, “Do you really believe this was merely a call to set up a meeting?”  Or with Clark, presents a copy of the draft DOJ communication to Georgia and other state legislators falsely claiming the department was investigating widespread fraud after Clark assures his own lawyers, “We were just exploring options.”

Both, I am sure, will be advised to invoke Fifth Amendment protection against self-incrimination.  Just one problem.  The Legal Information Institute at Cornell Law School describes an exception to this constitutional right as follows.

If a defendant takes the witness stand or a witness discloses self-incriminating information when answering specific questions, then the privilege is waived. Once waived, individuals cannot assert the privilege again when the prosecutor cross-examines their testimony.

Consider the following hypothetical.  The prosecution challenges Clark’s contention the draft memo was just an option.  “Mr. Clark, on January 3, 2021, did you call the president and tell him, if you were named acting attorney general, you would send the ‘draft’ to state legislators and recommend they name their own slate of Trump electors?”  The chorus of “Objection, your Honor” from the defense table will be deafening. 

However, the presiding judge will likely overrule the objection, explaining,  “Mr. Clark testified he only considered the DOJ correspondence as an ‘option.’  That, in and of itself may be an illegal abuse of power, even if he had never discussed it with the president.  You and your client opened the door.  You cannot now make the room inaccessible to the prosecution.”

MGM and Caesars Sport Books say the odds of either Meadows, Clark or any other Georgia co-defendant taking the stand on Monday are infinitesimal.  Yet, you might want to put a few dollars down since much of what has transpired post-November 3, 2020 defies probability.

For what it’s worth.
Dr. ESP

Championship at the Potomac River

Politics, Sports

This weekend marks the end of the 2022-23 PGA Tour season with the third and final event in the FedEx Cup playoffs, the Tour Championship at East Lake in Atlanta.  The seeding of the remaining 30 players is based on their performance throughout the year and the first two playoff tournaments in Memphis and Chicago.  Since 2021 the reward for such performance has been what can only be called a reverse handicap.  The #1 seed (Scottie Scheffler) tees off this afternoon at 10 under par.  This advantage is reduced for the other participants based on their seeding with those in the 26-30 positions opening their round at even par.  In other words, for a fan favorite like Jordan Spieth (#29 seed) to take down Scheffler, he needs to outscore Scheffler by 11 strokes, a tall order to say the least.

In one more Carl Jung moment of synchronicity, I realized it was no coincidence that the finale of the current PGA season is ending the weekend after the first debate among eight of the contenders for the Republican nomination for primary.  Consider the parallels.  First, on the same day the PGA Tour elite tee off in round one, Donald Trump has an 8:00 pm tee off time at the Fulton County jail to begin a judicial contest which may determine whether he spends four years in the White House or more in prison. 

Second, for both the debate and the Tour Championship, the elephant(s) in the room are those who are not on the stage.  Trump and Brooks Koepka.  For non-golf aficionados, Koepka was among those who abandoned the PGA Tour for the Saudi funded LIV Tour.  Yet he remains #13 in the Official World Golf Rankings and solidified that status by winning the PGA Championship  (the second of four major championships) in May.  [Note: The PGA and PGA Tour are two separate entities which is why he was able to play in the PGA Championship.]  The only difference between Trump and Koepka is the fact Trump, having “qualified” for the RNC debate, chose to sit it out, while Koepka was banned from playing in the FedEx Cup playoffs even though he was “high enough in the polls” to qualify.

Third, and most important, the race for the presidential nomination, as it stands today according to the FiveThirtyEight.com average of polls, is comparable to the seeding system for the FedEx Cup.  The bottom tier based on their inability to meet the RNC criteria to participate in the first debate–Doug Burgum, Will Hurd, Perry Johnson, Francis Suarez and Larry Elder–begin their quest at even par.  Mike Pence, Tim Scott, Nikki Haley and Chris Christie make up the next tier and start the election cycle at three or four under par.  Vivek Ramaswamy is seeded third at 10 under par.  Ron DeSantis is second at 15 under.  The prohibitive favorite Trump tees off at 52 under par.  Just imagine if Scottie Scheffler had a 37 stroke advantage over second place Victor Hovland and even more over the rest of the field.

But these two events differ in one very important aspect.  The presidential contest is actually two contests, one for the nomination and one for the White House.  The PGA Tour equivalent would require players seeded #2 through #30 holding a tournament to decide who takes on #1 seed Scheffler or “incumbent” FedEx champ Rory one-on-one for the FedEx Cup.  Which explains why non-Trump participants in the race to be crowned the ultimate winner next November are boxed into a corner.

To win the nomination championship they need to convince a significant portion of the 35 percent of GOP primary voters who are always-Trump to see one of them as the heir to MAGA-dom.  That explains why six of the eight participants in last night’s debate raised their hands in the affirmative when asked, “If Donald Trump wins the Republican nomination, would you still support him if he is convicted of a crime?”  That same response, however, makes them less acceptable in the general election to independents and anti-Trump Republicans who view anyone who says Trump is innocent as living on Earth2 and a continuing threat to democracy.

For a political party that prides itself on playing the long game as evidenced by their engagement in state and local elections and control of the Supreme Court, it is shocking no one took the advice of former and disillusioned Republicans who suggested viable presidential aspirants wait until 2028.  Their realistic chance of future success depends on letting Trump take the wind out of his own sails before leaving port to navigate the national political seas.

For what it’s worth.
Dr. ESP

 

A Candidate Without Convictions

Politics

If the Supreme Court, like it did when it declared corporations are people, also claimed words are human beings, “UNPRECEDENTED” would be the leading candidate for Time Magazine’s “Person of the Year 2023.”  Primary among the array of “never before” possibilities is the likelihood the 2024 Republican presidential nominee will be a convicted felon.  Which has led the handful of remaining sane GOP governors and members of Congress to suggest the party needs a candidate who is not out on bail following 91 federal and state felony counts so far.

One thing can truthfully be said about the Trump alternatives who believe they can convince Republican voters it is time to put Donald Trump in the party’s rear view mirror.  None will enter the 2024 primary season with convictions.  However, this morning I will focus on one of the contenders who made my point this weekend, former vice-president Mike Pence who recently patted himself on the back for making the tough choice between his boss and the U.S. Constitution.

At a June 7 Iowa campaign rally Pence finally broke his silence on the January 6, 2021 attack on the U.S. Capitol.

The American people deserve to know that on that day, president Trump also demanded that I choose between him and the Constitution. Now, voters will be faced with the same choice: I chose the Constitution and I always will.

There is only one problem.  If you are going to abide by the Constitution, you might take time to read it.  Not just the original seven articles, but each and every one of the amendments. Especially Section 3 of the Fourteenth Amendment which reads:

Section 3 Disqualification from Holding Office

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

This particular provision of the Constitution has received quite a bit of attention following an article in the Pennsylvania Law Review by law professors William Baude (University of Chicago) and Michael Stokes Paulsen (St. Thomas University).  They write, even without a conviction, the former president has violated Section 3.  “[Trump’s] overall course of conduct disqualifies him.”

As much as I would like to agree with these and other scholars, I cannot.  Section 3 uses the specific phrase “shall have engaged in insurrection or rebellion.”  My question? Who makes that determination?  Not two law professors  Not House Speaker Kevin McCarthy, who on January 13, 2021, infamously said, “The president bears responsibility for Wednesday’s attack on the Congress by mob rioters.”  Nor FBI director Chris Wray who MAGA world considers corrupt and should be fired. Nor MSNBC, CNN or even Fox News to whom we look to call elections but whose decision desks lack the necessary algorithms for this purpose.

I believe there are only two venues in which there would be an actionable conclusion whether Trump’s behavior meets that threshold.  The first, of course, would have been impeachment and conviction by Congress.  The other is a court of law.  A conviction in either Jack Smith’s January 6 case or Fani Willis’ Georgia RICO case would authoritatively tag Trump’s actions as meeting the insurrection/rebellion test.

Which brings me back to Mike Pence, who proved over the weekend he is one candidate with no conviction. Two and a half months after steadfastly stating he would always rely on the Constitution for guidance, he told ABC’s Jon Karl he did not believe a conviction would disqualify Trump from seeking the presidency.  “I think that needs to be left to the American people.”

For Pence, always, like art, is in the mind of the beholder.  In this instance, 74 days to be exact.

For what it’s worth.
Dr. ESP

 

Georgia on My Mind

Politics
The National Commission [investigating the September 11, 2001 terrorist attack] finds the attack on the United States on September 11, 2001. was, above all, a failure of imagination. Washington Post/July 22, 2004

What the Commission meant was the U.S. national security apparatus never imagined the three key elements leading up to the attacks on the Twin Towers and Pentagon. One, the homeland would be the target of such a coordinated terrorist playbook. Two, hijackers could be suicidal. Three, passenger airplanes could be turned into guided missiles. In short, no one anticipated things that never happened before.

The same thing occurred in 1963. At the time of John F. Kennedy’s assassination, it was a federal crime to threaten a U.S. president through the mail but not to actually kill one. This anomaly in the federal statutes was responsible for the chaos at Parkland Hospital when Secret Service agents assumed custody of the president’s body. Agents forcibly removed the coffin, after pushing aside the Dallas County medical examiner, Dr. Earl Rose, who claimed, regardless of the victim, he was required to perform the official autopsy.

Which brings us to late last night when a Fulton County, Georgia grand jury voted to indict Donald Trump and 18 other co-conspirators on 41 violations of the Georgia state law involving 161 separate acts. While most legal pundits focused on the breadth of the indictment, former U.S. attorney and member of special counsel Robert Mueller’s team Andrew Weissmann made the following observation.

The Georgia indictment differed from special counsel Jack Smith’s similar filing related to crimes surrounding Trump’s efforts to overturn the 2020 presidential election. He suggested Smith had to be creative when matching Trump’s actions with specific federal statutes. Why? Because the founding fathers and members of Congress for 233 years never anticipated a president of the United States would solicit the aid of a public official to commit a crime. Not the case in the State of Georgia. Weissman pointed to charge #5 in the indictment. “SOLICITATION OF VIOLATION OF OATH BY PUBLIC OFFICER/O.C.G.A §§ 16-4-7 & 16-10-1.”

A person commits the offense of criminal solicitation when, with intent that another person engage in conduct constituting a felony, he solicits, requests, commands, importunes, or otherwise attempts to cause the other person to engage in such conduct.
GA Code § 16-4-7 (2020)

In what can only be described as “20/20 foresight,” the addition to the Georgia criminal code could not better characterize Trump’s “perfect phone call” to secretary of state Brad Raffensperger or Rudy Giuliani’s presentation to a Georgia Senate subcommittee. In both cases, the defendants request public officials to violate their oath of office, with the intent those individuals “engage in conduct constituting a felony.” The same applies to Trump staffers who solicited the help of Coffee County elections official Misty Hampton who subsequently authored a “letter of invitation” to Trump attorneys authorizing examination of the county’s voting systems.

Recently, individuals who advocate televising Trump’s federal trial related to the January 6th indictment have invoked Supreme Court Justice Louis Brandeis’ proposition, “Sunlight is the best of disinfectants.” The same can now be said of moonlight, though the lesson will probably be lost on the current chairs of the House Judiciary and House Oversight Committees. Jim Jordan and James Comer claim their hearings into weaponization of the deep state are justified due to their interest in legislative solutions. They should start by taking a page out of the Georgia criminal code, making “solicitation of violation of oath by public officer” a federal crime with stiff minimum penalties.

A lesson I learned early in my years as a state government official or with the National Governors Association is “celebrate a victory, even when someone does the right thing for the wrong reason.” If they feel they need to justify amending the U.S. code to mirror the Georgia statute, Jordan and Comer could claim it was written in response to actions by civil servants in the Biden Justice Department. However, residents of Earth One (as opposed to the MAGA-verse) will know at whom the new provision is directed.

For what it’s worth.
Dr. ESP