As Craig Ferguson used to announce at the start of each of his late, late show monologues, “It’s a great day for America.” [NOTE: Ferguson became a naturalized U.S. citizen on February 1, 2008, an experience chronicled in his memoir America on Purpose: The Improbable Adventures of an Unlikely Patriot. He took particular pride in the timing, making him eligible to cast his first presidential vote for Barack Obama. For so many of us, that was truly “a great day for America.”] One has to wonder, however, would he still feel the same way over most of the past five years.

However, as I went to bed last night (Wednesday, November 24), I found myself echoing Ferguson’s jubilant sentiments of old. Yesterday, two events suggested maybe, just maybe, America was ready to turn the page and begin leaving the stench of Trump and Trumpism behind in the rear view mirror. At 8:30 AM, the Department of Labor announced the number of new unemployment claims for last week fell to an unexpected 50+ year low of 190,000. Then at 2:00 PM news broke that, at least in the town of Brunswick, Georgia, self-defense did not apply when a defendant creates the situation that leads to the victim’s death. (Wisconsin, are you listening?)

I pessimistically believed neither of these outcomes was likely and had originally considered titling this entry, “The Ghosts of Thanksgiving Past.” In anticipation of more disappointing news leaving little to celebrate this Thanksgiving, I was going to suggest we take this occasion to commemorate things from previous years that still deserve recognition and appreciation. Teachers and mentors who contributed to our skill sets and confidence that led to success. Those individuals who stuck with us in more desperate times. Events or experiences that still bring a smile to our faces or a tear to our eyes. And appreciation what we have been given, not just this year, but over one’s lifetime.

It was the antithesis of Jacob Marley’s exhortations of a life poorly lived. Visions of the past and present were not warnings, but reminders of what is possible when we surrender to our better angels. In my vision, Marley is not played by Leo G. Carroll (1938) or Garry Oldman (2009). Instead, James Earl Jones again tells us what he told Ray Kinsella as they ponder the meaning of a baseball field, “It reminds us of all that once was good and it could be again.”

So, you may ask, what about the ghost of Thanksgiving future? He appears and shares the words of Dr. Martin Luther King, Jr., delivered on March 31, 1968 at the National Cathedral. “The arc of the moral universe is long but it bends toward justice.”

So, here are a few things I hope to give thanks for in the years to come.

• A person of color can get justice without need of a video tape to confirm the facts of the case. If not, as in the case of Ahmaud Arbery, may an accomplice record then share video of the crime. Or need of a young bystander with a cell phone who understands America may not yet be ready to accept her word over that of a police officer who has violated his oath of service.
• In hindsight, the magnitude of death and severe illness from the current pandemic convinces purveyors and believers of misinformation and conspiracy theories that choices they made contributed to the severity and duration of this health and economic crisis.
• Voters reconsider casting ballots against their own self-interests, paying more attention to actions rather than sound bites and promises.
• But most important of all, the ability to look back and identify many more occasions when we can truly say, “This is a great day for America.”

Until then, Happy Thanksgiving 2021 and as always, I am grateful for your past, present and future support of this blog.

For what it’s worth.
Dr. ESP

I never claim to be the smartest person in the room…with one exception.  It is a right reserved for every Ph.D. candidate on the day of the oral defense of his or her dissertation.  Having spent years (in my case, five), focused on a narrow topic which theoretically no one else has ever explored as deeply or from such a unique perspective, you are the master of your tiny piece of the intellectual universe.

My time came on a November 1979 morning, before two professors of political science and one each of psychology and history.  The topic?  “Crisis and Change:  Voting Blocs in the U.S. Senate 1963-1972.”  Using methodology designed to isolate different types of abnormal behavior, developed by Dr. Warren Torgerson, then chair of Johns Hopkins’ Psychology Department, I was able to statistically identify trends in the formation of coalitions across hundreds of votes cast on the Senate floor over a decade beginning with the Kennedy assassination and ending with Watergate.  The major finding?  The make-up of a voting bloc was highly predictable based on the macro-topic of each bill.  For example, procedural votes, not unexpectedly, were always cast along party lines.  Civil rights bills were decided based on a senator’s region of residence.  Social welfare bills on ideology.  When professors Peabody, Cummings, Torgerson and Palumbo gave four thumbs up, it was more about relief than celebration.  (NOTE:  Dr. Palumbo did not put his hand to his forehead and say, “Uh, just one more question,” though he did somewhat physically resemble Peter Falk.)

I often thought about how I might duplicate the feeling of that moment.  To some extent this blog has served that purpose.  My goal has always been to approach a subject from a perspective that others have missed.  To see different aspects of society through a counter-intuitive lens.  In 2003, having just finished reading Best Evidence, David Lifton’s highly criticized account of JFK’s assassination and aftermath, I wondered if there was any scenario under which Lifton’s theory the dead president’s autopsy had been falsified might be true.  The most questionable aspect being the necessary participation or cooperation of individuals within Kennedy’s inner circle.

But a counter-intuitive approach does not stop with a single question. It requires a flood of questions.  Lifton’s narrative requires that all the planning and execution take place between the 12:30 pm CST when Oswald fired his rifle and the arrival of Air Force One at Andrews AFB at 6:00 pm EST (approximately four and a half hours).   Was that possible?  If not, were there insiders involved prior to November 22?  If so, who and for what purpose?  Addressing those questions and others was the genesis of 18 years of on and off research in search of a “Rosetta Stone” which might make a seemingly implausible story credible.  Last year, I found it buried in the digital archives of the Kennedy Presidential Library in Boston.

I now find myself in the same position as I was in the spring of 1979.  I had completed the research on my dissertation.  All that remained was writing it.  After several fits and starts, I decided to alleviate as many distractions as possible, including selling my first sailboat.  In a little over six months, I completed and twice edited a 300+ page document.

Therefore, it is time to put aside other things and focus on the singular task of turning the pages of notes, timelines, decision trees and documents into a fact-based political novel (ala Gore Vidal’s Burr).  That includes this blog.  So TTFN (Ta Ta for Now).  If all goes according to plan, I hope to finish drafting the novel sometime next spring.  At which time, with the mid-term election in sight, I intend to be back on this blog with regular posts.  And I have no doubt, in the interim, there will be some event or issue which requires an occasional exploration here.  But those will be few and far between.

In closing, I want to thank all the readers who have given me the energy and desire to keep this up on a regular basis for six years.  It has served a secondary purpose which was critical to my tackling this next project.  Writing any major work, fiction or non-fiction, is a marathon which demands stamina and discipline.  This blog has been the equivalent of base-mileage, those three to five day a week workouts needed to prepare for a marathon.  I could not have reached this point without your support and encouragement.

For what it’s worth.
Dr. ESP

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