Prologue

There are occasions when news media are caught up in a dilemma when two stories of relatively equal importance occur simultaneous.  The classic example is noon, January 20, 1980 when Ronald Reagan became the 40th president of the United States as the Iran hostages boarded a plane that would bring them home after 444 days of captivity.

This morning, I found myself in a similar situation.  Two stories jockeying for my attention and space on this blog.

Screen #1: Who Needs Facebook and Twitter When You Have the Mainstream Media

I turned on MSNBC at 11:00 a.m. yesterday morning.  Senate majority leader Chuck Schumer was scheduled to make the final argument in support of the $1.2 trillion infrastructure bill before an anticipated bi-partisan vote.  Instead, there was New York governor Andrew Cuomo’s lawyer Rita Glavin addressing alleged inaccuracy in the state attorney general’s report which led to calls for the governor’s resignation.

I immediately switched to CNN.  Same thing.  CNBC?  An interview with a Wall Street analyst speculating whether AMC’s stock price was based on fundamentals or rogue manipulation of the markets.  Not to mention Fox News, which, later in the day, reveled in Cuomo’s undercutting President Biden victory with a story titled, “Cuomo washes out coverage of Biden legislative win with resignation announcement.”

To say I was perturbed is an understatement.  But who was the worse villain in this clash of priorities?  Cuomo, who in true Trumpian fashion, had scheduled his defense at a time when his people knew they could take advantage of an already larger than usual audience following the Senate action on infrastructure?  Media executives for preempting an event that was inconceivable just weeks ago and would impact more Americans than either Cuomo’s fate or AMC stock prices?  Did the news networks really believe they did not have the power to tell Cuomo, “If you want us to carry you and your lawyers live, you need to push it back an hour.”?

The lesson?  In a battle between national policy and sexual misconduct, sex carries the day.  Even when, in Cuomo’s case, it is softcore porn.  So no one should be surprised if House minority leader Kevin McCarthy asks Matt Gaetz to hold a news conference to announce the latter’s resignation just as McCarthy is sworn in to testify before the House Select Committee on January 6th.

Screen #2: “I, a person…”

Among the questions that should be addressed by the House Select Committee is whether officials in the executive branch and members of Congress violated their oaths of office aiding, abetting or even inciting an effort to overturn the free and fair election of a president of the United States.  However, watching the current debate over mandates to prevent, or at least abate, the spread of COVID-19 in states like Florida and Texas, I wonder if every citizen should be subject to the same scrutiny.  Have they also violated an oath, the one contained in the preamble to the U.S. Constitution, whether implicitly sworn to at birth or as a naturalized citizen?

I encourage those who claim that, as American citizens, each of us has a right to do whatever we please to reread this document.

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

It is a call for collective action and responsibility.  The word “I” is never invoked.  Instead, it refers to “the common defense” and “the general welfare.”  Even the phrase “secure the Blessings of Liberty” does not speak of personal freedoms, but “our” shared liberty and prosperity.  It eliminates any need to ask the  biblical question, “Am I my brother’s (or sister’s) keeper?”  For each and every individual who claims allegiance to the Constitution, the answer should be a resounding “YES!”

For those who think otherwise, may I suggest you find an uninhabited island and establish your own autocracy in which the guiding principle is self-interest, where the preamble to your constitution begins:

I, a person, in order to serve myself, where justice is what I say it is, where my little corner of the world is safe and secure, where I have no responsibility for the defense, welfare, liberty or prosperity for anyone but myself, do not give a damn about anybody else…

Sadly, many who believe in this mantra of personal gratification do not isolate themselves, but try to impose it on the rest of us.  But they may eventually get their wish to be alone with their new-found freedom from collective responsibility.  It is called intubation in an intensive care ward.

For what it’s worth.
Dr. ESP

(In reference to a report the FBI has advised Trump Org COO Matthew Calamari Sr. and his son to “lawyer up,”) you know the world is upside-down when the Calamari are ordering lawyers for the whole table.

~Stephen Colbert/June 23, 2021

I know, making fun of lawyers is a very low BAR to overcome. Until this week, Steven Wright held the title for excellence in Comic/Attorney Privilege with his one-liner, “It’s 99 percent of lawyers who give the rest a bad name.”  But seriously folks, sometimes it is that one percent that can make all the difference in the world.  Such was the case Thursday, when a New York state appellate court, in response to a request filed by the Attorney Grievance Committee for the First Judicial Department of New York to suspend Rudy Giuliani’s law license, ruled the former New York City mayor and Trump advocate had violated multiple standards of conduct, making false statements in regard to voting fraud during the 2020 presidential election.

In particular, the court’s finding focused on Rule 3.1 of 22 NYCRR 1200, “Rules of Professional Conduct.”  This section addresses “Non-Meritorious Claims and Contentions.”  The following language would seem to nail Giuliani for his conduct related to claims of voting fraud following the 2020 election.

(a) A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous.

(b) A lawyer’s conduct is “frivolous” for purposes of this Rule if:

(3) the lawyer knowingly asserts material factual statements that are false.

A common defense in these kinds of cases is for the defendant to claim, “I did not know the information was false,” something that is very hard to prove without corroborating tangible evidence such as handwritten notes, emails, recordings or confessions.  There is circumstantial evidence Giuliani has, in fact, confessed.  Despite making outrageous claims in front of the Four Seasons Landscaping Company or before an assembly of Republican state senators in Michigan, he presented an entirely different story when it came to representing his client before a legal tribunal.

One example is Donald J. Trump for President v. Boockvar, in which Giuliani charged former Pennsylvania Secretary of State Kathy Boockvar with state law violations in the administration of voting in six counties.  During a November 17, 2020 pre-trial hearing, U.S. District Judge Matthew Brann asked Giuliani, “So you are alleging fraud?”  To which, Giuliani answered, “Yes, your honor.”  However, immediately following the hearing, Giuliani informed Brann the complaint had been amended prior to the hearing and did not allege fraud.  Braun dismissed the case on November 21, stating, “Respondent repeatedly represented to the court that his client, the plaintiff, was pursuing a fraud claim, when indisputably it was not.”

Why did Giuliani amend the filing?  Because by choosing to contrast his statements before the bar with those he was willing to make in parking lots or in Washington, D.C. on January 6th, he avoided possible sanctions for making a frivolous case based on false evidence before an actual court.  And there lies the rub.  I would not be surprised if Giuliani’s law license is reinstated following a full hearing.  Why?  Because his counsel (for his sake, one hopes he does not represent himself) will argue the New York code only governs conduct in a courtroom.  Giuliani can argue his statements outside the halls of justice represent his first amendment right to express his opinion, and therefore, did not violate the code of conduct.

No matter what any reasonable person thinks, he might be technically correct.  The solution?  The American Bar Association (ABA) claims, “Lawyers are officers of the court thus subjecting themselves to the court’s supervision and to duties geared to protect the vigor, fairness, and integrity of processes of litigation.”  If that is the case, should a lawyer’s professional conduct extend beyond the confines of a courtroom?  Imagine a doctor publicly touting a dangerous drug he or she would not administer to one’s own patients.  Or prescribing drugs for a non-patient from his home instead of at his office.  Would such action be any less offensive?

Solving the Giuliani problem is actually quite easy.  The ABA and state affiliates simply need to amend the code of professional conduct to clarify the phrase “if there is a basis in law or fact,” by extending it to all public conduct.  In other words, violations include any instance in which an attorney makes a public statement of fact which he or she is unwilling to repeat before a judge or any other legal proceeding.

Doctors have the Hippocratic Oath, “First, do no harm.”  Under current rules of conduct such as those in 22 NYSRR 1200, attorneys can operate under the Hypocritical Oath, “Do no harm only when you are in court.”

For what it’s worth.
Dr. ESP

Among the things I miss about David Letterman is the pre-guest segment when he would let audience members share what he called “brush with greatness,” an occasion on which they rubbed elbows with the famous and infamous.  I have been fortunate throughout my lifetime to have had many such opportunities with the famous and infamous ranging from actor John Astin to President Bill Clinton.  For long time readers, you may recall I often use a celebrity’s passing as a chance to take a trip down memory lane, as was the case with Cokie Roberts and Muhammad Ali.

However, my most consequential “brush with greatness” due to its timing was with Vice President Walter Mondale, who died this past Monday at the age of 93.  It was November 4, 1979.

I had  recently defended my doctoral dissertation after seven plus years as a graduate student (but that’s another story).  My parents, who wondered if I would ever complete the degree requirements, sent me a note of congratulations accompanied with a $100 check.  Use this to do something special to celebrate, they urged.

I scoured the leisure section of the Washington Post in search of a special event that fit the occasion when the choice became obvious.  I had been a long time fan of Liza Minelli dating back to her performances in The Sterile Cuckoo, Tell Me That You Love Me Junie Moon and of course Cabaret.  And now she was returning to the DC area where her nightclub career began 14 years earlier at the Shoreham Hotel.  The eight performances of her one-woman show were already a near sell-out when I called the box office.  The only remaining seats were on the box tier Kennedy Center opera house.  I do not remember the exact price of the tickets, but the $100 familial subsidy put it well within my budget.

When my date and I entered our box, we realized we were just two boxes to the right of the presidential box which immediately raised the expectation we would enjoy the evening with Jimmy and Roslyn Carter.  However, to our disappointment, our brush with greatness would be with Walter and Joan Mondale.  Yet,  the political junkie inside of me was determined to make the most of the opportunity.  How could we possibly be this close to the vice-president and not say hello?

At intermission, we watched as the Mondales exited their box.  We did the same, and there they were, standing alone, just the two of them.  Perfect. We would not be interrupting their conversation with friends or more prominent individuals.  We started to move toward the second couple, at which point we were immediately approached by two secret service agents.  Did they really think I brought a date to an assassination and would leave her behind as I jumped into the orchestra seats (the stage was out of reach) proclaiming, “Sic semper tyrannis?”

Fortunately, the confrontation ended quickly when I showed them our tickets, explained we were honored to be here the same night as the Mondales and only wanted to say hello.  The conversation lasted much longer than we expected and was quite congenial.   Fritz, now my new best friend, asked how we were enjoying the show and wished us well as we said goodbye.

Even though we only got the B-Team, the experience was right up there.  More so because the chances were probably higher the secret service would have been less accommodating if it had been the main man.  You take what life gives you.

It was not until the next day we realized the significance of the previous evening.  Just before the Sunday night performance, the White House learned the U.S. embassy in Tehran had been breached by Irani students and numerous Americans had been taken hostage.  Mondale’s attendance at the Kennedy Center was designed to suggest a sense of calm and normalcy within the administration.  And ever loyal to his president, Mondale did not disappoint.  From our close-up vantage point, there was no omen of the impending 444 day drama which would bring down the Carter presidency.

FOOTNOTE:  I only learned the final irony in this narrative on Tuesday when presidential historians recapped the Carter/Mondale years.  The event that triggered the attack on the U.S. embassy was the decision by the Carter White House to give sanctuary to the ailing Shah who had been deposed by the Islamic revolution.  Many in the administration opposed the idea.  The strongest voice in the room turned out to be that of Walter Mondale, who refused to subject a U.S. ally, the Shah, to the mercy of Ayatollah Khomeini and his revolutionary guard.

For what it’s worth.
Dr. ESP

I woke up this morning
Texas on my mind
Thinking about my friends there
And the times I left behind.

Pat Green/”Texas on My Mind”

Lately, I notice current events have become the equivalent of a personal journal reminding me of good times and bad over the course of seven decades.  For example, Mary Wilson’s passing brought back memories of seeing the Supremes at the Allentown Fair in 1967.  The Baja Marimba Band (with Julius Wechter, who wrote “Spanish Flea” made famous by Herb Alpert) was the opening act.  But nothing matches the flood of recollections this past week about our family’s years in Austin, Texas.

Some are minor moments in time with multiple degrees of separation, insignificant in the broader scheme of things.  Yesterday’s Washington Post reported two former first daughters, Chelsea Clinton and Jenna Bush, joined a group that purchased the WNBA Washington Spirit.  Current and former residents of Austin cannot see Jenna’s or her twin sister Barbara’s name and not think about the 2001 incident when they, then students at the University of Texas, used false IDs to order drinks at the city’s go-to Tex-Mex restaurant Chuy’s, an establishment we patronized on many occasions.  I am sure they were not the first nor the last Longhorns guilty of underage drinking at this cantina known for its paintings on velvet canvas or the wooden pterodactyls hanging from the ceiling.  Their particular crime, of course, was being  very recognizable presidential offspring.

Of course, this week’s Lone Star State main event was the once in a generation freeze exacerbated by the inexcusable response by Texas governor Greg Abbot and junior U.S. senator Rafael “Ted” Cruz.  How do I know it was inexcusable?  Personal experience.  In April 1983, I was appointed state director of Housing and Community Development by Governor Mark White.  On Christmas eve that same year, Texans experienced a similar situation.  The high temperature in Austin was seven degrees, two degrees fewer than the previous all time low.

On Christmas Day, several state officials, myself included, were asked to be in the governor’s office at 8:00 a.m. the next morning.  As is the case again this week, the entire produce industry in south Texas was devastated, and the unemployment rate along the border was projected to reach 60 percent in the most agricultural counties.  Among the resources within my jurisdiction was a $41 million allocation under the federal Community Development Block Grant Program (CDBG).  As I tell this story, keep in mind my only prior interaction with Governor White had been a brief introduction during my first visit to the capitol as a state employee.  He more likely associated me with the letters he received, including one from the city manger of Three Rivers, suggesting “Sam Houston was spinning in his grave” for White’s having hired “a gringo from Washington, D.C. for a job that should have gone to a native Texan.”

As the governor went around the table, he asked each of us what we could do immediately to alleviate the situation. I brought up the CDBG funding and the fact 20 percent was set aside for discretionary and emergency projects.  White:  “How soon can you start writing checks?”  To which I replied I was sorry, but the law required the funds had be used for tangible projects.  As I listened to accounts of Abbott’s actions or even New York Governor Andrew Cuomo this week, I wonder what I would have done if White had said, “I don’t give a damn what the law says.  Start writing checks or pack you carpet bags and go back to D.C.”

But that was a different time.  Instead he reiterated his goal was to get money into the hands of people who needed it.  Within 24 hours my team put together a public works program which included everything from repairing government facilities to removing and replacing palm trees along the Rio Grande highway which had not survived the cold.  As a result, local governments were able to put thousands of displaced workers on the public payroll for the remainder of that winter.

The memories did not stop there.  On Wednesday, the Austin American-Statesman ran a story under the headline, “St. David’s, other hospitals struggle with loss of water pressure, heat.”  St. David’s has a special place in our family history.  It was at that very hospital our daughter was born in September 1983.  Nothing that happened over the next five and a half years could outshine that one moment.

For the fourth memory, I return to the less significant.  At a cousin’s recommendation, my wife and I binge-watched the HBO documentary “The Lady and the Dale.”  In the final episode, the protagonist G. Elizabeth Carmichael organizes an “army” of street corner flower vendors in Austin.  The time period?  The mid-1980s, concurrent with our residency there.  Our departmental offices were housed in a converted hospital down the block from a major intersection, the corner of West 5th Street and Congress Avenue.  Those flower guys were always there, yet we had no idea of the intriguing back story about who they were and how they were recruited.

We left Austin to return to the D.C. area in 1988.  And more recent events have displaced our Texas experience over the nearly three and a half decades since we departed.  So let me end with a thank you to Jenna Bush, Greg Abbott, Mark White, the staff at St. David’s hospital and Liz  Carmichael for jogging my memory of the “friends there and the times I left behind.”

For what it’s worth.
Dr. ESP

Alternative Punishment

Much is being said about the pros and cons of invoking the 25th Amendment, a second impeachment and prosecution under federal sedition acts to demonstrate once and for all, no individual, especially the president of the United States, is above the law.  Among the arguments against these courses are action, especially ones that would result in Donald Trump’s imprisonment, is concern that they will further divide an already bisected nation.

However, there are two alternatives which have received little or no attention.  Forget the Constitutional solutions which are cumbersome and require more than simple majority votes.  Instead, prosecute, indict and try Trump for all the statutory crimes he has committed related to his behavior both as president and as crime boss of the Trump Organization.  These could include sedition, bribery, campaign violations, tax evasion, bank fraud, securities fraud and mail fraud.  If convicted, the presiding judge in each case should sentence Trump to all appropriate fines and jail terms.  Then and only then should President Biden, in the name of national unity, not pardon, but commute all prison sentences leaving the fines in place and preventing Trump, as a convicted felon, from voting until all court costs, fines and restitution are paid.  (NOTE:  There would be a certain level of schadenfreude to watch Trump, now that he claims to be a Florida resident, have to comply with the law passed by the Florida legislature and signed by Governor DeSantis which undercut the will of the voters to restore voting rights to felons who had served their sentences.)

The second alternative would relieve American taxpayers of ever having to further underwrite the grifter-in-chief after leaving office.  It is based on provisions of the military code which deny any member of the armed forces, subject to a dishonorable discharge, access to any veteran benefits.   The same should be true for the commander-in-chief.  Therefore, Trump could be stripped of all the benefits under the Former President Act of 1958.  This would include:

• Annual pension of $219,000/year.
• Transition expenses for seven months.
• Private staff and office funding up to $150,000 per year for the first 30 months and $96,000 thereafter
• Medical treatment at military hospitals.
• Secret service protection for 10 years.

Since these benefits are provided by law, an exception in this case would only require an act of Congress by a majority vote in each house signed by President Biden.

Presidential Medal of Shame

I have never been a fan of Bill Belichick.  Just two weeks ago, I reveled in the fact the New England Patriots failed to make the NFL playoffs this year.  But my past feelings about coach Belichick are no match for the admiration and respect I now have for him following his decision not to accept the Presidential Medal of Freedom from the nation’s traitor-in-chief.  I hope President Biden, at some future date, bestows this honor on him, not for his accomplishments on the gridiron, but for his action this week off the field.

I wish I could say the same for Gary Player and Annika Sorenstam who attended a private ceremony last Thursday to accept their medals.  LAST THURSDAY!!  Less than 24 hours after Trump fomented an attack on the U.S. Capitol.  If either have the audacity to display their award in their homes or offices, I encourage every American who visits those locations to simply say, “Oh, is that the Medal of Freedom you received from Donald Trump the day after he launched an armed attack against a building on top of which stands the STATUE OF FREEDOM.  How ironic!”  If Player and Sorenstam had any appreciation for the country in which they have both had the opportunity to practice their craft and profit from it, they would return the medals IMMEDIATELY.  For those medals are no longer a badge of honor, but the equivalent of a “Scarlet C” for complicity.

Welcome Lisa Murkowski

On Saturday, Alaska Senator Lisa Murkowski joined the ranks of those who called for Trump’s immediate removal from office.  Although elected as a write-in candidate after losing the Republican nomination to Tea Party candidate Joe Miller in 2016, Murkowski remained a member of the Republican party.  However, that may change if, as she said, the party continues to be beholden to Trump.

Now, I do not expect Murkowski to register as a Democrat, but she should be welcomed to join the party caucus as have independents Angus King of Maine and Bernie Sanders of Vermont.  In fact, any Senator who no longer wishes to be associated with the party of lies, conspiracy theories and insurrection would like the same offer, they should be welcome.

Now I know what some of you are going to say.  This will be a slap in the face of progressive members of the caucus.  But imagine this scenario: a Democratic caucus that consists of 60 or more members ranging in ideology from center right to far left.  That has always been the coalition which has been responsible for evolutionary advances in civil rights, sound economic policy and rational foreign engagement.  It is a coalition that is close enough in constitutional principle yet broad enough in ideology to become the best hope for compromise and accommodation of a wide range of thoughtful, fact-based solutions to the problems we, as a nation, now face.

If there is room in the party for pro-life Senator Bob Casey of Pennsylvania, there is room in the caucus for Murkowski, Pat Toomey, Mitt Romney, Ben Sasse and any other Republican turned independent.  And, if it would help, maybe it is time to drop the label Democratic Party.  After this week, it might as well be called the Constitutional Party with the American Eagle as its mascot.  Let the others call themselves whatever they want.  But make no mistake, from January 6th onward they will be known as the Sedition Party with Donald Trump as their mascot.

For what it’s worth.
Dr. ESP