All posts by Dr. ESP

Civics Advocate, Heal Thyself

Culture

In June, 2024, the American Council of Trustees and Alumni (ACTA) surveyed 3,000 college and university students to determine their knowledge of American history and politics.  The resulting report, “Losing America’s Memory 2.0:  A Civic Literacy Assessment of College Students” lays the groundwork for upcoming recommendations to address the identified deficiencies in civics education.  As an admitted over-degreed student of political science and policy wonk, I applaud any effort to promote a better understanding of the American system of governance as messy and complicated as it so often seems.

However, a review of the survey instrument raises serious questions whether ACTA’s efforts will produce the desired outcome.  I will share two of the first six questions to make my point.

Q1. Who is the current President of the Senate?  Mitch McConnell? Charles Schumer? Kamala Harris?  Joe Biden?  Not Sure? 

This does not address a matter of history nor politics.  It is a current events quiz.  If you want to understand this position identified in Article I, Section 3, Clause 4 of the Constitution, the options are:  Leader of the Minority Party?  Leader of the Majority Party?  Vice President of the United States? President of the United States?  Not sure?

When raised as a question about the structure of Congress, the student is forced to think about the rationale.  Surely, the minority party would not pick the presiding officer.  If the president was also president of the Senate, then it would be an enumerated power of the executive and should have been in Article II, Section 2: Powers.  From a perspective of consistency, the logical answer is Senator Majority Leader.  If the president of the senate is the presiding officer, how is that any different from the chairman of a corporation being selected by a majority of the board of directors?  Furthermore, if the Speaker of the House, the presiding officer in the lower chamber, is elected by a majority of House members, why isn’t the same true in the Senate?

That the right answer is “the Vice President of the United States” is a real head scratcher for students of other systems of governance, especially parliamentary ones.  It appears to violate the separation of powers giving an executive officer a role in the legislative process.  There is no “president of the Supreme Court” who breaks a tie when the justices are evenly split.  Why would the founding fathers make what appears to be a significant exception to the principle of majority rule? That, not the name of the current occupant of this constitutional office, is a teaching moment.

Q4.  Who becomes President if both the sitting President and Vice President die, become incapacitated, resign or are removed from office by impeachment?  The Speaker of the House of Representatives? U.S. Secretary of State?  Runner-up from the previous election?  President Pro Tempore of the U.S. Senate?  Not Sure?

Are you kidding me?  If you’re going to promote civics education, the least you could do is develop a survey that is FACTUALLY correct.  What was the author’s transgression?  It leaves out the essential phrase “at the same time.”  The question would be valid, if and only if, it was 1964 or earlier.  Following John F. Kennedy’s assassination, Congress passed and the states ratified the 25th Amendment which establishes the procedure by which, in the case of a vacant presidency, the vice president becomes president and appoints a new vice president with consent of the Senate and House.  Only if both die at the same time or before a vacancy in the vice presidency is filled is the Speaker of the House sworn in as president.

Talk about historical amnesia.  Whoever created this question should schedule an appointment for a full neurological workup.  Why?  In the history of the United States, with the exception of the 14th Amendment, no newly ratified amendment became relevant faster and more visibly than the 25th.  In 1973, when vice president Spiro Agnew resigned, no one was sitting around waiting to see if Richard Nixon, already being investigated for Watergate, would resign so House Speaker Carl Albert would become president.  Nixon appointed Gerald Ford vice president.  If that was not reminder enough how the 25th Amendment worked, when Nixon resigned in August 1974, Ford ascended to president and immediately selected Nelson Rockefeller to fill his former office.  And Speaker Albert stayed exactly where the Constitution required, ready to take over if both Ford and Rockefeller exited the scene in unison.

I often refer to my late colleague at the Ewing Marion Kauffman Foundation Michie Slaughter who frequently reminded us, “That which is not important is easy to measure.  That which is important is difficult to measure.” I wish more students understood the 10th Amendment which reads “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people (my emphasis).”  Why?  It raises the question whether an issue such as “reproductive freedom,” if returned to the states, should be decided by State Legislators or voters in the respective states.  How does one measure that?

Do I care if students know exactly which amendment gives the people that right?  Not at all.  What I do want them to question is whether a state legislator should override the will of a majority of the people.  For example, through a statewide referendum, Florida voters changed the state constitution to give felons who had completed their sentence or parole to the right to register and vote again.  Immediately thereafter, the state legislature and governor revised the definition of “sentence” in the state code to nullify the will of the people.  Or when it became clear a majority of Ohio voters supported a state constitutional amendment to restore a woman’s reproductive rights, the governor and state legislature supported a superseding referendum to raise the voting percentage to approve a a constitutional amendment from 50 to 60 percent. 

We saw how important this differentiation in the 10th Amendment between “the state” and “the people” can be when Donald Trump and his surrogates tried to pressure governors and state legislatures to overturn the results of the 2020 election in several swing states.  While the process of conducting elections has always been a state responsibility, for the first time, one candidate believed “state officials” could determine the result, not just administer the process.

In the next blog, assuming there is not an intervening issue to address, I will lay out an entrepreneurial approach to civics education.  One that recognizes the need to create “market pull” not just “supplier push.”

For what it’s worth.
Dr. ESP

Sanctuary Buildings

Politics

The attorney-client privilege does not cover statements made by a client to their lawyer if the statements are meant to further or conceal a crime. For this exception to apply, the client must have been in the process of committing a crime or planning to commit a crime. The exception may apply in some types of civil cases as well, such as when a client is planning to perpetrate fraud or another tort.

~Crime-Fraud Exceptions/JUSTIA.COM

To understand the magnitude of the Supreme Court’s decision in Trump v. United States, in which six justices declared a president of the United States has absolute immunity when conducting “official business” delineated in Article II of the Constitution, one need only examine the verbal gyrations Special Counsel Jack Smith employed to comply with the newly imposed standard.  It goes far beyond the question whether a sitting president can be charged with a crime.  Equally important, it inhibits the ability of a prosecutor to submit evidence if it involves communications between the president and his staff, even if that exchange was equivalent to the crime-fraud exception in the case of any other defendant.

It is ironic an administration that threatened to withhold federal funds for jurisdictions described as “sanctuary cities,” where municipal laws protect undocumented immigrants from deportation or prosecution, argued the Oval Office should serve the exact same purpose.  Most legal scholars would contend this violates a basic principle of American jurisprudence, that no person is above the law.  If the CEO of a private business plans a crime with subordinates in his office or corporate boardroom, records of those conversations are permissible evidence.  Why then is the president of the United States, the CEO of a public enterprise, not subject to the same standards.

In his opinion, Chief Justice John Roberts makes the distinction on the basis of what he refers to as “official acts.”  But the Constitution does not delineate acts, Article II, Section 2 is titled, “Powers.”  And where an individual has authorized “power” there is also the potential for “abuse of power,” a fact completely ignored by the 6-3 majority which blessed the “absolute immunity” argument.  How ludicrous is this omission?  Imagine Trump v. United States becoming a defense for the chief executive of any other institution.  Consider the following hypothetical filing in defense of a corporate CEO.

The phrase “no one is above the law” dates back to the Magna Carta.  For centuries we have assumed that meant any person, regardless of their station in life, could be judged on a single set of laws which applied to everyone.  That standard stood until the Supreme Court, in Trump v. United States, laid out a new standard.  Many believe it now gives the president rights and privileges unavailable to other citizens.  However, what if the basic premise “equal justice under the law” is not what changed.  Rather, the Court, probably unintentionally, changed the law repealing what amounts to a broader interpretation of the crime-fraud exception which covers advisors as well as legal counsel.  Should this apply, not just for the president, but for the chief executive of any organization for which the defendant is being prosecuted for an “official act” within his powers under his company’s corporate charter and by-laws?

Our client is charged with conspiracy to sabotage the operations of his largest competitor.  We have presented a job description, drafted by the board of directors and approved at the last stockholders meeting.  Under powers, the CEO is authorized to take such actions as required to ensure the company’s competitive advantage.  Therefore, any discussion related to that authority falls within the definition of an “official act.”

To make their case, the prosecution produced taped conversations and emails between my client and members of his executive team.  Furthermore, every single one of these events took place either in our client’s office or in the corporate boardroom.  How does that differ from the Oval Office or cabinet room?  Since the Supreme Court ruled that communications between a chief executive and his senior advisors are inadmissible, especially those that occur within the privacy of the defendant’s workspace, we demand the same standard apply to our client.

In summary, we ask this court to acknowledge that the basic principle of “no man is above the law” is still the standard and, therefore, when the Supreme Court created a new crime-fraud exception, it applies equally to our client as it does to the president.  Thank you.

When asked about this interpretation of Trump v. United States, Justice Clarence Thomas told reporters he needed some quiet time to ponder the question.  Maybe a week on Harlan Crow’s yacht would be sufficient.  Or as Thomas might refer to it, his “sanctuary.”

For what it’s worth.
Dr. ESP

The Day After

Random Thoughts

The following are some random thoughts on the Democratic National Convention.

A ROLLING STONE LOSES SOME GLOSS

You don’t always get what you want!

~Mick Jagger

If, as I have on occasion, hate it when I am right, today I find myself loving it when I’m wrong.  There was no Beyonce or Taylor Swift last night.  Because they were not needed.  There were enough “rock stars” to fill the arena.  Comma-la’s grand nieces.  The “Exonerated Five.”  The “Liberated Five,”  former Congressman Adam Kinzinger, former Georgia Lt. Governor Geoff Duncan, former Trump press secretary Stephanie Grisham, former Trump national security official Olivia Troye and Mesa, Arizona mayor John Giles. And headliner Kamala Harris. 

I still think not including Jimmy Carter in the “parade of presidents” was a lost opportunity to remind voters a post-defeat president can accept the voters’ choice and still serve America in any number of ways.

SHORT ONE ABE

You can fool some of the people all of the time, and all of the people some of the time, but you can not fool all of the people all of the time.

~President Abraham Lincoln

One would think Honest Abe covered all the bases.  But someone in the right-wing echo chamber proved him wrong.  Please add, “Some people are fools any chance they get.”  In this case, a representative of the media made the following observation as Kamala Harris walked out on the stage to accept her party’s nomination.  “The campaign told women to wear white yet she wore black.”  First of all, these are the same people who thought the world ended when President Obama wore a tan suit.  It did not.

Second, imagine the uproar if she, like Hillary Clinton in 2016, had worn white.  Fox News hosts would  accuse her  of playing identity politics pandering to women.   Or suggest anything but a tailored dark suit is unpresidential.  The Hollywood Reporter  provided the best explanation of her choice of attire, but of course, had to drop the designer’s name, something they never do when covering male politicians. “She bucked the night’s trend by wearing a custom navy power suit and matching silk blouse by French fashion house Chloé, a choice that seemed to say history has been made, now let’s get down to business.”

My only disappointment was that Donald Trump did not post the following on Truth Social.  “I’ve known Ka-MAH-la for a long time, not directly, and she always preferred white.  And then, all of a sudden, she turned navy blue.”

AS THE BRAIN WORM TURNS

No post-convention analysis would be complete without acknowledging Robert F. Kennedy, Jr’s suspending his independent campaign and endorsing Trump.  Some “conservative” media outlets label this a “game changer,” and they may be right.  But not for the reasons they believe. 

There is one undeniable axiom in politics.  When the opposition is trying to define you, do not give them more ammunition.  Ask Mitt Romney who, as the Obama campaign portrayed him as insensitive to working Americans, said, “My job is not to worry about those people (referring to the 47 percent of voters he called ‘the taker class.’)  I’ll never convince them they should take personal responsibility and care for their lives.”  Which explains why the Harris campaign should welcome Bobby, Jr. as the perfect surrogate for Trump.

  • If you thought Trump and J.D. Vance were weird before, now they have added the guy who dumped a dead bear in Central Park to their ticket.  A trifecta of weird.
  • Have you ever noticed Trump is surrounding himself with people who hated him?  His VP choice once called him “America’s Hitler,” and now his latest sidekick once described him as a “sociopath.”
  • More evidence that Trump puts himself above country offering RFK, Jr. a job in his administration in hopes of pandering to Kennedy supporters.
  • Like Trump, Bobby Jr. is a forum shopper who puts self above country.  Trump was a Democrat until he realized his message of grievance and chaos played better with Republicans.  RFK Jr. has gone from seeking the Democratic nomination to being an independent candidate to asking Harris for a job in return for his endorsement to getting that offer from Trump.
  • One more Trump surrogate who has no moral compass.  Kennedy claims to be an environmentalist yet supports the candidate who just promised the oil industry he would take care of them in exchange for a $1 billion donation to his campaign.
  • One more Trump surrogate whose family thinks he has betrayed his heritage, unlike Harris and Tim Walz, who feel obligated to honor their own parents.

Thursday night, Adam Kinzinger told DNC convention, “I belong here.”  Likewise, Robert F. Kennedy, Jr. is right where HE belongs.

MICK JAGGER REDUX

Sometimes, people get what they want and wish they had not.  Such is the case with the Trump and MAGA state legislators pushing for paper ballots.  One result is that the extended time needed to print and distribute paper ballots forced states to wrap up that process earlier than in previous election cycles.  Remember, Democrats had to schedule an on-line roll call to meet Ohio’s ballot requirement.

According to Newsweek,  RFK Jr.’s name may still be on ballots in 23 states where he qualified as an independent candidate.  One of those states is Michigan.  ABC News reports, “A spokesperson for Michigan Secretary of State Jocelyn Benson said that Kennedy’s name would remain on the state’s ballots in November due to his status as a ‘minor party’ candidate.”  Do not forget, when her name appeared on primary ballots even after she  suspended her campaign, 15-20 percent of Republicans still voted for Nikki Haley.  Do not be surprised if something similar happens among Kennedy supporters.

Scottish-born Craig Ferguson, a naturalized U.S. citizen, would open every episode of his late night talk show with, “It’s a great day for America.”  Friday was one more.  But remember, the one that matters most is November 5th.

For what it’s worth.
Dr. ESP

Three Down…

Culture, Politics

Nothing emboldens more than success.  The National Enquirer gets it right about John Edwards and thinks it is a real newspaper.   Psychic and astrologer Jeanne Dixon predicted in 1956 that the next president would be a Democrat and would die in office at the hands of an assassin.  She later prophesized the world would end in 2020.  Close, but no cigars.

That’s exactly my state of mind this morning.  Last week I suggested the only way to introduce Tim Walz at the DNC convention was to surround him with members of the 1999 West Mankato High School state champion football team.  CHECK!  But that one was easy.  If you wanted the United Center audience to bring him on chanting, “Coach! Coach! Coach!”, there is only one way to do that.  Emboldened, I am ready to predict two highlights for tonight’s finale.

The title of today’s post is a double entendre.  Yes, three days of the DNC lovefest are in the books with one more to go.  Also, in contrast to the RNC convention at which no past Republican president, vice-president or candidate appeared, the DNC treated viewers to three of the nation’s current or former chief executives.  Of course they did.  The organizers wanted to remind Americans that Bill Clinton left office with three years of a budget surplus and a thriving economy.  Barak Obama brought the economy back from the “great recession” and showed Osama Bin Laden that America would hold him accountable for what he did on September 11, 2001.  And Joe Biden helped heal America physically, economically and emotionally during a pandemic.

What is less obvious about this parade of presidents was the order in which they appeared.  Having Biden the first night made sense.  Honor the incumbent’s accomplishments and pass the torch.  But we learned last night, while “Bubba” can still be the “explainer-in-chief,”  he has lost a step or two.  To be fair, reports from within the United Center, seeing him in-person had a different vibe than watching on TV.  He did not generate the raucous response of the Obamas.  It was more of a respectful reference and acknowledgement, as he admitted, this might be his last DNC convention.  Clinton used to be referred to as the party’s “big dog.”  That moniker now belongs to Barak and Michelle Obama, who I might have saved for later in the week.

It only makes sense if you look at the order from a different perspective.  Three down; one to go.  Here is my prediction.  The order was based on reverse chronology.  The current president on Monday.  Obama on Tuesday.  Clinton on Wednesday.   Jimmy Carter tonight.  At 99-years-old, he will not be in Chicago.  And the message will not be about his years in the Oval Office.  Imagine the following.

Grandson Jason Carter will introduce a film about his grandfather’s post-presidential life.  It will include establishing the Carter Center at Emory University.  Monitoring elections around the world, especially in emerging democracies, to ensure they were fair and honest.  Leading the effort to eradicate Guinea worm disease in Africa.  Becoming the face of Habitat for Humanity.  The message?  The character of a person is not what they do when they have power.  It is what they do when they lose it.  The contrast between Carter and Donald Trump will go unstated, but obvious.

Jason Carter will conclude by recalling a recent conversation he had with the former president which was reported yesterday by Reuters.  “He is super aware. Just recently, we were talking about his 100th birthday, and he said, ‘Yeah, I’m excited about that, but I’m really excited to vote for Kamala Harris.'”  The message.  If my grandfather can make it to the polls to vote for Kamala Harris, you better well can.

Prediction #2.  There is no question Harris will come on stage tonight to a live performance of Beyonce’s “Freedom.”  The surprise?  It will be a duet.  Her co-star?  Taylor Swift, who wrapped up the European leg of her Eras tour in London on Tuesday night, more than enough time to make it to Chicago.  Which of her songs might they sing?  The consensus on Swifties fan sites seems to be, “Who’s Afraid of Little Old Me?”  Though one fan suggested “Bad Blood” to send a message to Trump who Swift may sue for copyright infringement and lying about her support of his campaign.

Whether I am right or wrong, one thing is certain.  United Center will be rocking again tonight.  Get out your wine and popcorn and enjoy the party.  Because tomorrow we have to go back to work.

For what it’s worth.
Dr. ESP

It’s Playoff Time

Politics, Sports

I talked about it the last few years. I think it’s silly. You can’t call it a season long race and have it come down to one tournament. Hypothetically we get to East Lake and my neck flares up and it doesn’t heal the way it did at the Players (where he had a neck issue but still won), I finish 30th in the FedEx Cup because I had to withdraw from the last tournament? Is that really the season long race?

~Scottie Scheffler on FedEx Cup Playoffs

I am a big fan of the current #1 golfer in the world.  However, today’s post was inspired by Michelle and Barak Obama.  Last night, the former first lady shared the advice Kamala Harris’ mother Shamala gave her daughter when faced with adversity or a challenge,  “Do something!”  Next, The former president reminded us Donald Trump has not stopped whining about how unfairly he had been treated since he came down that elevator in June 2015.  In the context of Scheffler’s comments, I wondered, “Had Masters’ jacket green become the new orange?”

I am sure if Scottie had taken a minute to think about it, athletes in every major sport face the same situation.  Ask the 2007 New England Patriots.  A perfect 16-0 regular season.  Two playoff victories, beating the Jacksonville Jaguars 31-20 in the divisional round and the then-San Diego Chargers 21-12 in the AFC championship game.  But the best season and playoff record in NFL history still depended on winning one more game.  After a 13 yard pass from New York Giants quarterback Eli Manning to Plaxico Burress with 39 seconds left in the game, the 10-6 Giants took home the Super Bowl trophy.

Scottie should have also realized that the FedEx playoffs is the one “season-long” champion that does NOT require the recipient of the trophy to win the final event of the season.  If the winner of the tournament at East Lake Golf Club in Atlanta is not ranked in the top five based on their points total, the FedEx cup is awarded to the player with the most points regardless of that person’s finish at East Lake.  As Barak would tell you, “Stop whining.”  And Michelle would follow, “Do something. If you want the trophy, go out and win the damn tournament!”

Why, you might ask, in the middle of the most consequential election in our lifetime, do I share a story about Scottie Scheffler.  True, a lot is at stake.  To be exact, $25 million to the FedEx Cup champion.  But that is small potatoes compared to the future of American democracy.  Last week, I was talking with a friend who congratulated me for calling every major event in the last four weeks of this extraordinary presidential campaign.  He pointed to three things.  My post about Joe Biden’s legacy.  That he would either be known as the person who made a second Trump presidency possible or as the person to position Kamala Harris to be the first female president.

My post about a post-Biden campaign.  If he decided to withdraw from the race, it would be on his terms.  He would pick his successor and there would be no intraparty fight for the nomination.  And finally, my blog about Tim Walz.  We needed someone on the ticket who had succeeded without the benefit of a large inheritance or a Silicon Valley sugar daddy.  Someone who succeeded in life the way most Americans do.  Michelle Obama said it much better last night when she talked about most Americans not having the advantage of generational wealth or an escalator to the top of the mountain.

Then both she and Barak made the political analogy which reminded me of Scheffler, the Patriots and every other favorite who fell short of winning the “inevitable” championship.  In baseball, you can bat 1.000 percent all season, but in the bottom of the ninth with two outs and the winning run on third base, if you strike out, that is all that matters.  It’s not what we do for the next 77 days, although that is important.  It’s what we do in the fourth quarter, ninth inning or on the 18th hole of this election.  We need to have our A-game ready until the polls close on November 5.

After hearing that message from the stage of the United Center last night I realized, for once, Will Rogers may be wrong.  Yesterday, in a phone call with our daughter, she said, “You sound up, Dad.”  In part, that’s because I now feel I am a member of an organized political party.  I am a Democrat.

For what it’s worth.
Dr. ESP