All posts by Dr. ESP

A Story for the Ages

Culture, Politics

In space, no one can hear you scream!

Tagline/Alien (1979)

Not all senior citizens are alike.  How do I know this?  Personal experience.  I am looking forward to celebrating my mother’s 101st birthday this month.  And, what is becoming less and less unusual for someone her age, she is still quite active and has all her mental faculties.  Furthermore, as strange as this may sound, she is wise beyond her years.  At 93, she knew it was time to sell her condo and move to independent living.  Two years later, she no longer felt comfortable driving and sold her car.  If and when the time comes she needs to move into assisted living, I trust she will tell me long before I ever need to suggest it.

I share this with you in response to the news Wednesday afternoon that Senate Minority Leader Mitch McConnell unexpectedly froze during a press conference for the second time in five weeks.  During coverage of the incident on MSNBC’s “Deadline White House,” host Nicole Wallace asked an insightful question, “In the current political environment (clearly referring to both GOP and Democratic concerns about Joe Biden’s advanced age), can we have an honest conversation about what Senator McConnell is experiencing without being ageist?”  In McConnell’s case there may be a correlation between age and these episodes, but are they necessarily causal?  On March 8 of this year McConnell suffered a concussion when he tripped while attending a Washington dinner party.  One has to ask, “Absent that incident, would the Minority Leader be having these episodes when he zonks out during a press conference?”

Similar questions are understandably being asked about California Senator Dianne Feinstein who is nine years older than McConnell.  And Iowa Senator Charles Grassley (89).  But what about John Fetterman?  The junior senator from Pennsylvania is 54 years-old, ten years under the current Senate average of 64.3 years of age. In Fetterman’s case there are equally compelling questions about his ability to serve that have nothing to do with age.

Editor-in-chief of The Bulwark Charlie Sykes responded to Wallace with what I thought was a more prescient observation.  Does each of these individuals’ public stature prohibit their friends and family from doing what you or I would do with loved ones who similarly struggle with mental or physical limitations?  I believe Sykes was making a much more important point.  Despite the political ramifications of either McConnell or Feinstein stepping down, this is not a choice between party and country.  This is about party versus grace and compassion.

The best example to make this case is McConnell because he is both victim and perpetrator.  Feinstein’s early retirement should be a no-brainer.  California’s Democratic governor Gavin Newsom preemptively announced he would appoint an interim replacement who would not be a candidate in 2024.  Therefore, Feinstein’s decision would not effect the current Democratic majority in the Senate or provide advantage to one of the three announced candidates seeking the Democratic nomination to replace her in January 2025.  Except Feinstein is a member of the Senate Judiciary Committee and is critical to the confirmation of Biden appointments to federal judgeships.  And McConnell, who infamously blocked Merrick Garland’s nomination to the Supreme Court, said the Republicans will not allow Democrats to replace Feinstein on the 21 member committee consisting of 11 Democrats and 10 Republicans.  Without Feinstein’s tie-breaking vote, committee votes on judicial confirmations will be deadlocked 10-10 and would not be forwarded to the full Senate for a final vote.

So, Republicans who are shedding crocodile tears about how sad it is to watch Feinstein’s physical and mental health deteriorate in front of a national television audience can put away their hankies.  McConnell and his minions are the ones who are preventing Feinstein from making what is clearly the most rational choice.

Ironically, McConnell is in a similar position thanks to Kentucky’s legislature which is ruled by a GOP supermajority.  As reported in the New York Times:

For decades in Kentucky, the power to fill a vacancy in the U.S. Senate was reserved exclusively for the governor, regardless of whether an incumbent stepped down, died in office or was expelled from Congress.

But with Gov. Andy Beshear, a Democrat, in the state’s highest office, Republican lawmakers used their legislative supermajorities to change the state law in 2021.

Under the new law, a state executive committee consisting of members of the same political party as the departing incumbent senator will name three candidates the governor can choose from to fill the vacancy on a temporary basis. Then a special election would be set, and its timing would depend on when the vacancy occurs.

One more example of a Republican legislature changing the law when it no long benefits them politically.  But that is a discussion for another day.  Among the likely candidates put forward will be House Oversight Committee chair James Comer who has already signaled he will run for McConnell’s seat if he does not seek re-election next year.  Comer is a member of the Freedom Caucus, 2020 election denier and is leading the push to open a Biden impeachment inquiry though he has yet to identify the “crime or misdemeanor” the president might be guilty of.  The sane GOP members in the Senate who make up the caucus majority therefore prefer McConnell, which means the minority leader’s personal health and well-being, like Feinstein’s, are held hostage due to externalities beyond his control.

But age or cognitive ability are not the only criteria which determine fitness for office. Given a choice between an octogenarian who occasionally makes a verbal gaffe and a young, charismatic alternative who can race through a lie faster than A. J. Foyt, I will always take the former.  Which leaves only two concerns I have about one’s longevity in public life.  First, like my mother, an individual does not need someone else to tell them when to exit the stage.  Second, others do not create barriers which keep an individual from making that decision.

Let me close with one more personal observation.  I have occasionally been asked whether I ever considered a podcast.  I know my own limitations.  At the top of the list, I am no Casey Kasem.  I do not have a classic radio voice.  A close second is the fact I find, as I have aged, I often stop in mid-sentence to get my thoughts in order.  That too does not make for good audio.  Which is why I stick to the written versus spoken word.  To paraphrase the Alien tagline, “On WordPress, no one can hear you pause!“

For what it’s worth.
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