Posts published in “McKee”

In a stunning reversal of promises made during the campaign, and on the day he was installed in office as President of the United States for the second time, Donald Trump granted commutation of sentence and executive pardons to all of the individual defendants  accused or convicted of any offenses related to the January 6, 2021, Capitol break-ins.

Trump's action has or will affect more than 1,500 defendants related to the beak-in and demonstrations at the Capitol on that day and will result in the immediate release of all those in jail or prison, the termination of parole restrictions imposed on those  already released, and the withdrawal and dismissal of all charges against everyone. Previously, from the beginning of his recent campaign, Trump had indicated that pardons for the Capitol uprising would be issued, but only on a case-by-case basis, after an  individual review of each application, implying that they would be issued only to the minor convictions for "being there" crimes, and that none would be issued where violence occurred or was threatened.

Of the over 1,500 individuals pardoned, approximately half were convicted or charged with crimes of assault, battery, use of a deadly weapon, injury to officer, or resisting arrest. The two most serious sentences were the 22-year sentence to the leader of "Proud  Boys" for sedition and the 18-year sentence to the leader of "Oath Keepers" for conspiracy. Both are related to criminal action to cause others to commit violent crimes.

The power to pardon is granted to the President in article II, section 2, clause 1 of the Constitution, which provides that the President "shall have the power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment."

It has  been held to be a plenary power to forgive entirely every offense known to the law.

Every state governor has some power of pardon, with most states imposing some limitations on the governor's action or some right of review by the state legislature.  In Idaho, section 7 of article IV of the state constitution grants power to pardon to a commission  on pardons and paroles. The governor may grant interim pardons directly, but they are conditional, to last only until the next meeting of the commission, which may then amend or rescind the governor's action. No condition, limitation, or right of review exists  for Presidential pardons except for the Constitutional exclusion for the crime of impeachment. The president's authority is otherwise unlimited.

Trump has been criticized for granting pardons to some individuals who were charged but awaiting trial and therefore before they were convicted of any crime. In the usual case, Presidential pardons are granted after extensive review by the Department of Justice  and the Presidential office. Also in the usual case, pardons are granted for specific crimes and only after the defendant is convicted. However, notable exceptions have occurred.

President Joe Biden's exit pardons of General Mark Milley, Dr. Anthony Fauci, former congresswoman Liz Cheney, members of the Congressional committee to impeach, and members of his own family, all allegedly based upon the threats of Donald Trump to cause criminal

action to be taken but before any such actions existed, are noteworthy examples. As also is the single action by then-president Geral Ford in granting a pardon to former-president Richard Nixon, who had resigned the presidency upon threat of impeachment for  the Watergate incidents but before any criminal action was commenced.

Notwithstanding this, Trump's action was a surprise to most. His vice president, JD Vance, had declared in an interview on Fox News only a week before, that "If you committed violence on that day, obviously you shouldn't be pardoned." Informants responding  confidentially to inquiries from the press indicated up to the day of his inauguration that Trump's intention to pardon was not unconditional but was to be limited to otherwise innocent onlookers. Insiders now say that he made his final decisions only a few  days before his inauguration.

Whew. On his first day Trump has taken the office of President off into territories rarely considered possible, and in complete reversal of promises made during his campaign.

Pay attention, everybody – one suspects there will be more coming.

 

President Donald Trump delivered his acceptance speech on Monday, following his inauguration as our 47th President. It was an amazing speech, unlike anything in over the twenty some acceptance speeches previously given in the modern era. From vilification of  the current administration to promise of future pipe dreams, it was a remarkable mixture of inconsistencies and impossibilities.

The thread throughout was to "Make America Great Again," taken directly from Trump's campaign slogan and ignoring the fact that our times are already significantly greater than any time in past memory. Unemployment is lower, incomes are higher, the stock market  is up, businesses are booming, and bankruptcies are fewer than any time in current history. Trump's promises appear to ignore that he already had one chance at these issues and failed completely to deliver. The first two years of Biden's administration were  largely spent in reversing and restoring the nation from what was left after Trump's first go from 2016 through 2020.

In one area of amazing new promises, Trump promised a detailed list of immediate increases in expenditures for various programs he was promising without any increases in taxes, explaining that the new programs would be financed through "outcome taxes" which  he defined as being taxes and tariffs imposed on foreign sellers for goods and services provided to buyers in the United States. This is either a remarkable misunderstanding of the mechanisms of tariffs or a deliberate misstatement on who will be paying the  intended increases.

Understand first that tariffs are taxes that are imposed on imports. They are ultimately paid by the users in the importing countries, not on the sellers in the exporting countries. In our case, they are paid by the United States importers who pass the tariffs  on to the buyers. If a buyer in the U.S. purchases goods directly from the foreign seller, the tariffs are collected at the border by tariff stamps purchased or provided by the buyer. If purchased under contract, the foreign exporter may provide the import  tax stamps for the shipments, but the cost will be on the buyer.

No part of the moneys received by the foreign sellers on the purchase price of good sold to buys in the U.S. are ever owed or paid to the United States government in the form of taxes or tariffs. The ultimate cost of any tax or tariff imposed is always on the  buyer. It has been estimated that if general tariffs in the range of 20% were added to all foreign consumer products shipped to buyers in the United States, the annual cost increase to an average family of four could be over $4000. Widely imposed general tariffs  were attempted in the 1930s with disastrous results that extended the impact of the depression by close to two years.

In another example, Trump promised relief in the price of gasoline, without acknowledging or even understanding that the price of gasoline is not regulated by any government action but is completely determined on the free market. Moreover, and most significant,  it is the world market for petroleum and not the national market within the U.S. that determines current prices. Since in the U.S., all petroleum producers are currently at full production there in no governmental action available to Trump short of nationalization  of facilities that would have any impact on current prices.

In a final example, Trump announced to great cheers that he was abandoning all programs to develop alternative fuels and return to a restored dependence on petroleum by abandoning the Paris climate change accords, reversing regulations on mining and non-fuel  minerals, and rescinding climate clean energy programs. All these actions appear foolish in the face of undisputed evidence of atmosphere deterioration and potential fuel shortages. We face disastrous consequences if alternatives are not found for petroleum  fuel sources.

These examples are only a few of the jaw-dropping revelations of Trumps proposals. His speech covered proposals never suggested before and some that have been tried and discarded. We can only wait and watch and see what happens.

Pay attention now. It promises to be a most interesting go.

 

An intermediate appellate court in Georgia ruled this week that Fani Willis, a county prosecutor, and her office should be disqualified from personally pursuing the criminal action pending against Donald Trump and a slew of other defendants, on the basis of the "appearance of impropriety" by her and her office. In a two-to-one decision reversing the trial court's ruling that there was no basis to take action, the appellate court ruled that the prosecutor and her entire office "had no authorization to proceed" against Trump.

The appellate court did not find any actual impropriety on the part of the prosecutor or her staff. It only noted the "appearance" of an impropriety that might appear to "some." Additionally, it held that the ruling would not apply to any normal case but existed only because of Trump's particular circumstance as a candidate for the office of President.

Trump had argued that a sexual relationship existed between the prosecutor and the local attorney she had designated to try the case, and that the two had spent an exorbitant amount of money in their relationship. Trump argued that this was sufficient to justify the prosecutor's recusal. The trial court disagreed and denied the application, but the appellate court reversed, concluding that although there were no instances of actual improprieties shown, the appearances were sufficient to warrant the prosecutor's dismissal.

The prosecutor stated she intends an immediate appeal. But if so, it is highly unlikely that any decision on review will occur between now and the time Trump is to be sworn into office as President. Once he is sworn in, substantial statutory and regulatory rulings clamp on preventing any further action by any of the lower courts in Trump's cases. The Supreme Court's ruling in other cases that a sitting President is immune from any federal criminal prosecution while in office will most probably be sufficient to derail all proceedings against Trump in state courts as well. Meaning Trump will be insulated from any criminal action in any court throughout his presidency.

Notwithstanding all of this, the appellate ruling in the Georgia case is plainly wrong. The ruling pertained to allegations of a personal relationship between the prosecutor and another, and to her alleged misuse of state funds in the process. A defendant in a criminal case has no standing to raise or complain about such instances in the criminal case. The appropriating government entities, either state or local or both, that oversee the funds supplied to the prosecutors' offices can audit the finances of a prosecutor's office and take action if the prosecutor over-spends or mis-spends public funds. A lone individual caught up in the criminal system has no standing to sue in such matters. Further, most state rules providing for the disqualification of an attorney based upon a prohibited relationship with another lawyer require that the relationship be with an opposing party's attorney but not one associated on the same side as the target. In any such action by the state or county agency overseeing the prosecutors' offices, a mere appearance or possibility of a such a connection might be sufficient for recusal,  but in the case of an objection being advanced by the defendant in a criminal case, the showing of actual prejudice or harm resulting from the existence of the alleged  relationship is usually required. None of these expected requirements were met in the instant case.

All privileges and special protections extended to a President only operate for presidential actions taken after the candidate is elected and while in office. Here, none of Trump's criminal actions alleged in the action in Georgia related to the office of President. The nexus of the crimes charged were Trump's actions as a potential candidate for election to the office of President, and for alleged wrongs during the campaign, but not for any action or inaction by Trump while he was acting in service as the elected President. It would make no difference in deciding the issue of Presidential immunity whether the candidate was seeking office for the first time or was already the President seeking re-election. If the actions under examination pertained entirely to the candidate's campaign for office, they should not have been subjected to any defenses or privileges existing to the office holder. There are no statutory exceptions protecting a candidate for office, and no demonstrated factual basis for the creation of any judicial prerogatives.

The upshot of all this is that the action by the intermediate appellate court was wrong, but it may be too late in this case for any corrective action by a higher court. Action in other cases indicate that all issues raised in federal courts that might have prevented Trump from running for office have been mooted. Sentencing in the federal case against Trump pending in New York which found him guilty of fraudulent misconduct, was stayed  pending the election. Two federal court actions in the District of Columbia and Virginia, were dismissed by the special prosecutor Jack Smith, citing a Department of Justice written policy not to pursue any case against a sitting president. With these rulings and actions in place, the expectation would appear to be that no matter what the outcome of the current Georgia case finally is, it, too, will be stayed and all of Trumps's criminal case problems will be washed away for the duration of his current presidency.

While some of the actions will remain over his head, and the cases Jack Smith was pursing might be refiled later, there is no action now pending that will interfere with the proceedings to inaugurate him into office on January 20, 2025, or that will interfere in any way during his term once he assumes office.

The twists and turns occurring in Trump's political career continue to astonish, and every indication is that it is not over yet.

I am convinced of that, so  pay attention.

We look with aghast wonder at the collection of nobodies Trump is designating for many of his agency and first cabinet posts. Clearly, as most commentators have observed, Trump's criteria in his designation of this clump of mediocrity is personal loyalty to him rather than any demonstrated competence at the intended tasks to be undertaken.

There are those that believe Trump is putting forward names he knows will not be approved, expecting that the Congress will deny the appointments and then go into recess shortly after Trump is inaugurated with certain offices left un-filled. While the Congress is in recess, the federal statutes permit the president to make recess appointments of whomever he wishes, without triggering Congressional approval, with the appointed individual entitled to serve in office for almost a year.  Some analysts contend that Trump intends to foist off some individuals who he knows would not receive Senate approval by the use of this device.

Witness, for example, the designation of Pete Hegseth as Secretary of Defense, a man widely considered to be a drunk and convicted at least once of sexual misconduct.  In other times, either circumstance would be totally disqualifying for any major federal appointment. Today, the combination is apparently viewed as irrelevant as potential naysayers from the Senate's Republican caucus are being threatened with primary opposition if they do not abandon their objections and toe the line with a vote to approve the nomination.

This is setting up an unusual lose-lose circumstance for any member of the Senate with misgivings about Trump's appointees.  They get the plainly flawed nominee if they do not oppose Trump's first-named individual, but they earn the risk of a primary challenge if they oppose the nominee, and they may get a worse appointee put into place via a recess appointment if they go on break with the issue up in the air.

In an unusual circumstance not previously experienced, Trump has designated several individuals to head up agencies which they have publicly maintained ought to be significantly restricted if not eliminated. Trump's announcement of Linda McMahon, an opponent  of federal intervention in the areas of primary and secondary education, as his choice for Secretary of Education, is a prime example, as is the announcement of Robert F. Kennedy Jr., a vocal opponent of federal assistance to states upon the happening of natural  disasters, as his choice for Secretary of Health and Human Services, the agency responsible for disaster relief.

In times past, the president-to-be has remained largely silent during the time from election in November to inauguration in mid-January.  The staff efforts in selecting individuals to fill all slots available to the new president are largely conducted in private,  with the Senate's committee review of the president-elect's lists being conducted behind closed doors. Formal announcement of many of not most of the chosen individuals is reserved until after the president is sworn in and is on the job, or at least until  after the proposed candidate for appointment has received tacit approval from the Senate committee responsible for review.

The presidents-to-be also usually remain silent on the specifics of any changes they intend to make after their inauguration. An exception to this might exist if the out-going president attempts to impose regulations or law changes that would impair the in-coming president in some way.

None of this seems to apply to Trump, who has been vocal from early on about all the steps he intends to take as soon as he is sworn into office. He has, however, changed in a material way how he claims he intends to approach at least some of these steps now.

Early on, he claimed that he would take the steps and control the processes himself, personally, from the White House. For example, early on Trump announced that he intended to pardon a goodly number if not all of the individuals convicted of the violence and acts of destruction brought about in the January 6 capital insurrection. Now, however, when asked about his intentions, he disclaims any preconceived intention on his part get involved in specific agency administration, stating instead that the agency

heads will take up these issues in regular channels on a case-by-case basis. The duplicity apparent in this change in the explanation should be obvious. Trump is appointing the officials who will be in charge of administering the offices and has repeatedly  made it perfectly clear of what he expects with respect to their review.

All this brings to mind the alleged practice of the Mafia kingpins passing orders to their underlings by stating aloud that "somebody" ought to take a specific action in the instance. The notion is that by stating the desire in this indirect manner, the kingpin  cannot be personally held criminally responsible for any specific action taken by the underling.

Although Trump is now stating that he has no intention of involving himself in these matters personally but will simply allow the processes to play out within the separate agencies involved, he has already made it perfectly clear what he expects in this area  from the individuals he is or will be appointing to the agencies involved.

Hang on to your seats, everybody, we are heading into completely uncharted waters with no way of knowing who, what, where or when Trump intends to act next.

 

The news is full of Trump's declared planning, and the commentators from everywhere are beside themselves with dire predictions. I am at sixes and sevens on whether to be overly concerned here. On one hand, I am well hunkered down being fully retired with a  completely protected judicial pension. I am an observer, not a doer, and am no longer involved in anything that is going to be affected at all by Trump's shenanigans.

On the other hand, my household budget is still subject to the general economy, and if Trump carries out even a few of his main proposals, the resultant impact on the economy could be disastrous. The direst of the predictions are for runaway inflation coupled  with a deep depression, but even if lesser results occur, it would still be more than just uncomfortable. Here are three examples:

First, Trump's plan to use import duties as revenue raising devices, imposing general tariffs of up to 20% on all imports, is going to result is a disaster if he cannot be talked out of it. Generally, tariffs are an administrative device and do not require  congressional approval. The Trump administration could impose them at any time, unilaterally.  It has been explained over and over that tariffs are not paid by the foreign entity manufacturing or selling the goods but are taxes paid by the consumers paying  higher prices for the goods in the receiving country – meaning us in all of Trump's plans.

General import tariffs would hit the bottom of the economy the worst, with estimates of the increase in costs for at typical family in the bottom quartile exceeding $4,000 per year. The last time the U.S. imposed general import tariffs was in 1929, just ahead  of the great depression. Most economists agree that the implementation of general import duties significantly contributed to the depth and length of the depression.

Trump's only reaction to these comments is to wink and nod, and then repeat without comment the entirety of his ill-conceived plans without change.

Second, Trump's plan for tax relief calls for significant tax cuts to those in the top earnings brackets and miniscule cuts for those in the lowest. If the government is going to step in, this plan is the exact reverse of what might be helpful. The idea that  increasing the amount of earnings retained by the top will result in a "trickle down" to increase the earnings for those below has been demonstrated over and over to be a complete myth. In fact, increasing the amounts retained by those at the top tend to stay  at the top, either in savings or reinvestment.

Wages of those below the top are not affected until other aspects of the economy influence the change – increased demand, increases in technology, and shortages in the labor force to meet requirements.  Increases in wages are usually the last element to respond in an increasing economy. Lowering the taxes on the lowest categories has little impact because, in our graduated income tax scheme, the lowest categories already pay the least amount in taxes and benefit from what plans have been enacted for the relief of

the very lowest category among us. Further, lowering the tax rate when the existing level of government spending already exceeds income results in increased debt, thereby pushing the obligations on to future generations. In an overheated economy, when lowering the tax rates on the wealthy result in increasing the debt level, the expected result is not an increase in resources to the lower classes but rather an even greater increase in the levels or rates of inflation.

There is  no indication that Trump understands the basic economics involved, and his cabinet picks in this area so far do not give any promise of being better at it than he is.

Finally, Trump's plan to round up all the undocumented aliens and return them to their country of origin is woefully incomplete. Nowhere does Trump explain how the economy will pay for the cost of rounding up, litigating and deporting the 11 million or so undocumented aliens in this country. Nor does he explain what to do with or care for the children of the undocumented aliens who are born in the U.S. and therefore are automatically citizens from birth. Finally, Trump has no answer of who will replace the deported immigrants at the menial jobs many of them currently occupy – jobs even the lower class of U.S. citizen considers to be beneath their level of income and achievement.

There is no argument that a problem exists in this area, but as every expert that has addressed the problem insists, the country must first fix the problem of processing immigrants into the country before, or at least at the same time as, taking on any wholesale  program of deportation out.

To sum up, from the appointments made so far, it appears Trump will be surrounding himself with sycophants to him personally rather than seeking out executives with actual experience in the fields to be managed. There is not one person in the bunch named so far that give any indication that they might even understand the problems let alone take on the task of explaining to Trump the underlying issues discussed above.

Where are the answers going to come from?  My head hurts. I think I will take a nap.

 

I was feeling sorry for myself the other day over some new inconvenience that I ran into, a common occurrence at age 85. I am on borrowed time and, as I paused to reassemble, I thought of my mother. She was a wonderful person to me, as I suppose all mothers are, being the source of constant attention to every twist and turn of my life.

Although not heavy on church going, her belief in God was strong. She believed that God watched over every detail of our lives, and never gave us an unpleasant task or result without intending there to be a lesson in the circumstance. "Look for the silver lining," she would remind us. "There always is one. Find it and figure out how you can turn this to your advantage."

Her teachings on the vagaries of life were always by example, never by instruction or demand. It was never "Do as I say, not as I do," and she seldom stepped in to take over. Although she constantly kept me pointed into what she considered to be the right direction, she left it to me to figure out all the lessons that life handed out along the way. Unless the subject was particularly in her area, like cooking or a specific method of home care, she answered most questions with a question, "What should I do?" was invariably answered with, "What do you think you should to?"

From her I learned the importance of preparation. She took the simple "look before you leap" jingo into every issue that one might face in growing up. She insisted that nothing should happen without proper preparation. Her belief was that proper planning aways included the means for identifying how to quit or get out if things did not turn out as expected. This meant to expect the best in my choices but to look for the worst, and to strive to prevent that which could be prevented.

"What's Plan B?" she would ask anytime I told her what my next adventure was going to be. This is a question I still ask myself whenever choosing an option or setting out on a different course in life's plan.

In the last few years, I have begun to feel that I have become an observer of life rather than a participant in it. Suddenly, I have encountered many twists and turns, requiring that I face all measure of novel issues. My age, health matters, hospitals, my wheelchair, no driving, and the forced retirement have piled on a whole raft of issues to decide or alternatives to choose.

Then I think of my mother, and say to myself, "Oh yeah? And just what is your plan B now?"

But then, at my age, I do not like the obvious answer.

 

We were taught from grade school that our system of government, including the process of elections, was the best in the world. As we were growing up, our schools spent little time on the political systems of other countries, other than to claim that they were  not as good as ours. Recent events have suggested the possibility that this conclusion might be wrong – or at least open to debate.

It appears that the methods various other governments follow in their national election processes are significantly different than the way we do it.  Outside the U.S., our system is referred to as the most expensive and complicated system in the world. Perhaps  it is time to reexamine some alternatives.

As our forefathers designed in the Constitution, only one body – the House of Representatives – was to be formed with members selected directly, by an open vote of the people. The Constitution originally provided that the members of the Senate and the President  and Vice-president were to be selected by indirect methods, through processes involving the state legislatures and the creation of an electoral college. Members of the Senate were to be selected by the state legislatures. The President and Vice-president were  to be named by vote of an electoral college to be created as provided.

The point to make here is that it appears our forefathers did not intend that the decisions on all matters were to be left to the individual vote of the people of the several states. Perhaps this original intent merits a re-visit.

What we see in the national Presidential campaigns from both parties are professionally polished and shaped personalities on television and in carefully arranged personal appearances, scripted in detail in every way by the professional advisers. The person  who survives the primary process and the convention selection process to finally become the candidate does not necessarily become known to the eventual voter. With over a billion dollars now expected to be spent by each side in their national campaigns, the  process on both sides of presenting the candidate under the best light has been entirely taken over by professionals. The experts then conspire to present the best image of their candidate that can be constructed, given the technological resources of the day.

Our national election has become so complicated and expensive, and the process takes so much time, that the most qualified and capable potential candidates for office may be disinclined to run simply because of the personal burden and expense imposed by the  process.

What to do? Various proposals have been advanced to tinker with our system, but nothing has attracted sufficient national attention to stimulate action. The strongest voice is to eliminate the electoral college entirely, make the presidential vote exactly the  same as all others in directly controlling of the outcome. But this solution begs the problem, and if the underlying basis for the electoral vote is to protect the process from the expense and irrational vagaries of a direct vote, eliminating the college may  aggravate the situation rather than alleviate the process.

In looking at our system of voting, the first question that must be asked is whether its broken and needs repair. Recent events suggest the answer is yes. The next question is whether the candidate's qualifications and suitability for actually performing in  office in real terms are adequately presented to the decision makers for evaluation by our present system? I suggest the answer is no. Finally, the question is whether the process that is applied promotes or discourages participation in the process by the  most qualified potential candidates possible? I suggest the answer is that the process discourages participation by some of the truly best qualified candidates.

This is not to say that we have not had excellent candidates in the past. The status of office is more than sufficient to draw out well qualified prospective candidates. The problem is the expense and the artificial obstacles that appear to have been created  in the demanding process of seeking the job, and that have nothing to do with accomplishing the job, might prevent equally or better qualified candidates from entering the race. This leaves the field open to the less qualified because once in the race, the  professionals can step in to "remodel" the candidate for the campaign.

The overwhelming problem with today's methods are that the ability to win a presidential election says nothing about a candidate's true ability to actually serve in the office and handle the decisions that must be made. The campaigns of today appear to be tests  of which candidate was packaged and prompted best, with the winner – regardless of true qualifications – possibly being the proverbial snake oil seller who succeeds in bringing out the vote.

Given the size of the country, the time required, the costs that would be incurred, and the populations involved, it may be impossible to adequately inform individual voters on the all the fundamental qualifications of a candidate to perform the duties required.

Further, and for these same reasons, it may be impossible to persuade the best qualified individuals to become candidates.

A solution might be to re-think the role of the electoral college in the process. We are a democratic society, meaning we refer and depend upon a representative form of government.  Perhaps then, instead of doing away with the electoral college, we actually  delegate to it the responsibility and power to elect the president?

Choose the members of the electoral college first. State by state. After the full college is selected and qualified, but not before, we then begin the campaigns for office of president and vice-president – not to the general public, but to the members of the  electoral college. Give them the task of selecting from these individuals the president and vice-president without the expense and hoopla of a national campaign.

Probably a pipe dream. But it might work.