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Posts published in “McKee”

He’s also a father

December 7, 2024

The uproar over Biden's pardon issued to his son is a true tempest in a teapot.

In the first case, the charges against his son for the statements made in connection with a gun purchase were "status offenses" rather than any actual criminal behavior, which in the absence of any aggravating criminal circumstances would usually result in a non-criminal resolution.

In the second case, the tax return was amended and the correct tax paid before the charges were filed, meaning that in a normal situation, the most that would be done would be a misdemeanor charge leading to a fine and probation.

The purchase of a gun was not an illegal act, nor was it a crime in the abstract to misstate the answers to questions asked on the purchase form. If he had misstated his address or listed his age wrong, for example, there would probably have been no basis for any criminal complaint. In this case, the statutes made it wrong to misstate the answer to the drug question, and the statute made it a wrong for one using drugs to purchase a weapon. But for the specific statute, there would be no basis to charge any crime in connection with the statements made in connection with the gun purchase But in the usual case, if no harm results from the purchase, there is no reason for a felony prosecution on the gun form. In fact, unless some harm occurs, there is no reason to even examine the gun form. Where harm results, and separate criminal behavior occurs,  the status offenses may be added to the actual criminal behavior to place the circumstances in proper perspective. As to the tax charges, from a standpoint of judicial economy, isolated instances of an erroneous tax return seldom result in prosecution if the subject return is amended and all taxes paid. Sometimes exceptions are made where a prominent individual is involved to emphasize a point – as in the recent case of Martha Stewart -- but in this case it was President Biden, not his son, who was the apparent prominent individual.

Biden's son was not a prominent target warranting the example punishment for the single misfiled  return. In most instances, a single status offense standing alone would not warrant full prosecution. In this case, however, the prosecutor was a "special prosecutor." appointed exclusively to determine whether President Biden's son was guilty of any crime.  The special prosecutor was a prominent Republican under pressure from some Republican Congressmen. The apparent expectation was that President Biden would be found to have been involved with his son in some or any of the questioned activities.

When the special prosecutor came up empty handed with this objective, and could only find the related charges against the son, he did not close the inquiry as unproductive – which he could have done under the circumstances. But since he was only charged with one target defendant, he chose to proceed with a case that a regular prosecutor with a normal case load might well have declined.

Dividing the circumstances into separate counts makes the conduct appear much worse than it was. In the tax case, there was only one tax return involved, and the crime was in the failure to report one taxable amount - being the tax on the correct total income for the year in question. The fact that the total was arrived at from several separate amounts could be considered an irrelevant detail insofar as the criminal act was concerned – was the crime committed in filling out the return or in filing it? In my view,  the crime was in filing the return with erroneous entries, and it would only be one count per return rather than separate counts for each wrong line in the return.

I suspect that if it were not for the fact that this defendant has a prominent father, the case would have been disposed of by informal resolution months ago. In my court, for example, I would expect it to be a misdemeanor resolution of the tax case for a fine  and probation and a referral of the drug case to a rehabilitation program.

Since that is not the direction the case was apparently headed, and since the President was no longer concerned with any fallout in a campaign for his re-election, I see no reason to blame the President for exercising his prerogatives and reacting like a father.

So, what now?

November 30, 2024

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.

 

On feeling sorry

November 23, 2024

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.

 

On rethinking some processes

November 14, 2024

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.

 

Who knows?

November 9, 2024

It's going to be a while before we get this one all figured out.

In the few days before the race, it appeared that Kamala Harris was completing an almost perfect campaign. She had raised plenty of money, her poll numbers were up, significant Republican names were deserting their party in droves, and it looked like she was going to pull ahead in most of the six essential, bell-weather states. All the leading names on MSNBC and elsewhere were gleefully congratulating themselves over the predicted Democratic win.
Donald Trump, the Republican opposition, presented every conceivable disqualifying factor imaginable to the candidacy. He was a convicted felon, with four additional felony criminal cases pending. He was a renowned womanizer, having bragged about his conquests on national television. He was a multiple divorced man, into his third marriage with two prior wives still living. Six of his companies had filed for bankruptcy. Many insiders have declared that he overstates his wealth by millions if not billions of dollars and he refuses to release his tax returns or allow any independent examination of his wealth. And he is an unrepentant liar with one published account indicating over 30,500 of deliberate and outright statements in his prior campaign that are plainly untrue.

From other instances of election history, any one of these flaws would have been determined sufficient to bury the candidate and drum him off stage without any chance for election. In this case, Trump possesses them all.

Despite all the positive elements to the Harris campaign, and despite all these detractions to Trump's go, the election wasn't even close. It was over by midnight, with a margin in Trump's favor of over four million votes. With about 90% of the total vote in, the current delegate count shows over 270 electoral votes for Trump and less than 220 for Harris.  Those who determine such matters for national television announced before midnight that no matter how final vote totals are spread or what the final electoral vote turns out to be, Kamala Harris could not prevail. For the first time in many years, the Republican candidate was declared to have won both the popular and the electoral vote.

How did this happen? What went wrong? The Democratic poohbahs are beside themselves trying to explain. So far, there does not appear to be any consensus among the well-known prognosticators on any single cause for the debacle. The best that appears to be said is that any of three factors might explain or combine to explain the result:

First, Harris was essentially an unknown candidate to national politics. Her post as vice-president was not helpful, being entirely in the shadow of Biden. This required that she both introduce herself and establish her credentials as meaningful to the office of president in the time allotted. She had only four months to accomplish this objective. Trump, on the other hand, has been running for this office for eight years.

For those who regularly follow the news on MSNBC or CNN, or even Fox News, Harris's potential was well developed, despite her lack of national credentials. But the vast majority of potential voters do not watch these resources, seeing only the few minutes of news offered by the national channels, if that. Many do not watch the television news at all. For these voters, Harris remained an unknown person.

The second reason is the historical proclivity of the Democrats to get tangled up among themselves over negative issues bearing on their own candidate. In this case, this meant the development of objections to the position of the government – which included Harris as vice president – to participation in the wars involving Isreal in the Mid-East. This led the nosiest of potentially Harris voters to declare that they were either voting for some third-party candidate or staying home.

Finally, there is the unspoken and unspeakable discrimination of some voters against women, or against non-white persons of color, or against persons of any religion other than Anglo-Saxon protestant, being the so-called white WASPs. In this case, Harris presented all three problematic factors – being a woman, of color, married to a non-Christian. None of these factors were discussed openly, but all were apparent in on-line and private comment.

As to the whopping deficits in Trump's background, the best explanation here is that the Trump voters see Trump as agreeing with them on major issues, rather that they having to accept Trump, with his negative factors being simply ignored as not bearing upon the issues where there is agreement.

We are about to break history on an important number of fronts. The negative or unknown aspects of Trump serving as president have significantly increased since his first term, and we have no true history to look back upon to measure his performance or predict the outcome this time around.

So: hang on to your seats, everybody, every day will offer a new opportunity for adventure.

A long night ahead

October 30, 2024

The Democrats have done it again. When faced with a well-organized but extraordinarily controversial Republican candidate for president in Donald Trump, and having their own lawfully elected candidate withdraw from the race midstream, the Dems have reached out for a significant nobody to head their ticket.

In early 2024, Joe Biden was duly selected through the state-by-state primary races to be the Democratic candidate for president for a second term. He was expected to be nominated at the Democratic convention and to again select Kamala Harris to be his vice-presidential candidate.

However, after the mid-summer televised debate between Biden and Trump, and in the midst of the concerned despair that followed what some believed was Biden's dramatically flawed performance in the debate, Biden suddenly announced his decision to withdraw from the race. Many thought his performance in the TV debate – which was to keep his head down and his answers directly and precisely confined to the questions asked, and to ignore completely the blistering stream of invective comments coming from Trump – was exactly proper. Others, in a mounting whirlwind of comment, thought Biden was overwhelmed by Trump, and was completely defeated by him in the contest.

This whirlwind overtook the party officials and they considered whether any action could or should be taken. In years past, and in other races, switching horses, or even trying to switch horses, midstream was usually met with disaster. Witness recent memory in Idaho when gubernatorial candidate Charles Herdon's sudden death and the scramble by the Democrats to replace him contributed to the election of Republican Don Samuelson, the lackluster and generally thought to be incompetent state senator from North Idaho, and later, Jack Murphy's failed attempt to resign from his candidacy for governor contributed to Cecil Andrus's campaign. Recall that Andrus then trounced Murphy soundly, being elected with an unheard of 70% of the vote.

Biden's television debate with Trump took place before the official Democratic convention was held, and the party officials publicly wondered whether, when, why and how they could deny Biden the office. Despite all the problems of switching candidates midstream, and despite the argument that the tempest over Biden's performance at the television debate was probably only of teapot size, the party powers decided to accept Biden's resignation.

There was no renewed primary election process, and no other candidates officially offered their names as replacements. The Democratic powers met in their proverbial closet and decided to accept Biden's withdrawal and designate Kamala Harris to replace him on the ticket. They then presented her to a willing convention as the sole nominee for office.

In 2024, Kamala Harris was for all intents, and unknown as a presidential candidate. She had been vice president under Biden, but her only real qualifications were strictly local to California.  She had been a respected lawyer there with her public local offices served being a county prosecuting attorney and the state attorney general. Nationally, she had only been the recently elected United States senator for California when, in 2020, Joe Biden tapped her to serve as his vice president. Her service there was clearly under Biden, with little opportunity to demonstrate her own qualifications. The upshot is that with her short stint as senator and her position as vice president under the shadow of Biden's presidency, her experience in national service is limited. She is still an untested candidate to run the country.

To top these issues, she is female, non-white, and married to a Jew. Any one of these facts could trigger a defeat from an electorate that rejected Hillary Clinton, the only other female national party candidate in history, was generally reluctant to accept Biden's Catholic religion, and only grudgingly accepted Obama's half-white existence. The combination in Harris may be overwhelming.

On the other hand, Harris has proved to be an extraordinary candidate, collecting more than a billion dollars in campaign contributions, besting Donald Trump soundly by most critics in their only televised joint appearance, and running a flawless campaign on issues. In addition, it appears that Republicans in droves are deserting their party's candidate to cross over to her side.

The result, with less than a week to go, and despite all the unexplainable infirmities of Trump's candidacy, is an election that is too close to call. Both sides are claiming victory, but the polls still show it as being essentially a dead heat. With less than a week to go, and with the margin of error considered on the specific reports, the overall polling results still stand generally at 50 – 50.

Get plenty of rest next Tuesday. It's going to be a long night.

 

On the head of a pin

On the head of a pin

October 16, 2024

When Trump tossed his hat into the Republican presidential primaries in 2015, his appearance in the race was considered by most to be a curiosity – a publicity stunt to promote his television programs.  It was expected that Trump would withdraw long before the convention, after gaining what he could from the publicity. The television stations and press treated his campaign as a joke, covering everything in detail to poke fun at what were termed his missteps.

But the Republican hopefuls running in the primaries then were an odd lot, with no clear leader or up-and-coming contender in the bunch. Each had his own set of problems, and as the primaries moved from state to state, Trump, as the unknown newcomer without any political baggage, began winning. By the middle of the contests, with no clear campaign process behind him and no clear plan in hand for the future, Trump was declared to be the winner and became the Republican presidential candidate for 2016.

The Democratic candidate was Hillary Clinton, who had her own set of problems with her voters that year. The result was a whisker-thin general election. Clinton won the popular vote by a tiny margin but Trump received a majority of the states' electoral votes under the arcane Constitutional provisions for selection of a president. Trump was declared the winner. He served an aimless four years and then ran for re-election against the Democrat Joe Biden in 2020. Although Biden was declared the winner, Trump refused to accept the results. To this day Trump has not conceded that Biden was duly elected.

Now, upon the conclusion of Biden's term, Trump is running again as the Republican candidate – making this his third try for election. His Democratic opponent this time is Kamala Harris, a mixed-race lawyer from California who is serving as Biden's vice-president.

The three campaigns run or being run by Trump proved to be a dramatic departure from virtually every one of the long-standing practices of campaigns in the past, dating back in memory to the fourth term election of Roosevelt in the 1944. No election in any of the 75 years that preceded the nominating process in 2015 and the election in 2016 contained any element of the surprising pieces and parts that appeared as part of  the Trump campaign. Consider:

Achieving honesty among politicians in office has long been a mainstay of our political system. We are inherently suspicious of politicians, convinced that they will stretch the truth if given any opportunity. We are intolerant when any politician is actually caught stepping out of line and even a single misstatement has been sufficient to end or seriously impair the political career of many.

Compare this history with the events of Trump's first term of office that began with his election in 2016. A Washington Post fact-checker conducted a study of Trump's remarks during his first presidential campaign and term of office and counted in excess of 30,500 deliberate misstatements of fact coming directly from Trump's mouth. This practice of saying whatever he thought would bolster his position with the listener, with no attempt to stay within the truth, continues unabated to this day, passing through all three campaigns and his one term of office without letup.

The independent press is and has been a mainstay of all political campaigns. All politicians cater to the press, knowing how essential it is to connect the candidate with the electorate, and strongly desiring to keep on the right side of the editors. Most politicians are extremely wary of even being slightly critical of the press, being aware of the old adage that says, "Never argue with one who buys ink by the barrel."

Trump ignored these cautions entirely. He began a constant drum-beat against any report even slightly critical of him, referring to the press as the "lame-stream media" and accusing them of sloppy reporting and bad faith editing. If the paper or other source attempted to argue with Trump, or correct his misstatements, he repeated the original accusations exactly as originally released and continued to do so as long as there was any life to the argument.  Even the New York Times, long considered the premier newspaper in the country and cited everywhere for its impartial, detailed and accurate reporting, received Trump's castigation any time it ran an article even slightly critical of his performance.

In most situations, Trump had no facts to back up his outrageous accusations against the press, but that did not stop him from originating and repeating the most slanderous accusations against any newspaper – or any individual or organization -- that crossed him. He maintained this attack on the mainstream press during his first campaign against Clinton, in his second campaign against Biden, and now in his current campaign against Kamala Harris. This tactic for attacking the media was originated by the German Nazis in the 1930s.

Trump is reported to have 25 million followers on Facebook, so any of his diatribes about the press to his followers will reach half-way around the world in minutes. They are essentially impossible to answer or rebut. One result of his constant attacks on the press over the last eight years has been a gradual lowering of the general esteem towards the print media in the eyes of the general public, and a growing conviction on the part of Trump's dedicated followers that they are being had.

In the area of extra-marital affairs in politics, historically the existence of a single misstep has been considered a disaster to any candidate's prospects. The stories are legion on those whose political dreams evaporated upon just the suggestion of marital impropriety. There were many who even thought Reagan should be disqualified just because he had been once divorced.

All this changed with Trump, who is on his third marriage and who has been repeatedly noted for multiple extra-marital relations. The press uncovered numerous incidents, including the payment of hush money in one affair, but nothing has stuck to Trump to cause him any grief with his voters. He continues to survive the most outrageous of accusations without any noticeable scars on his presidential aspirations.

For many years, the clear rule in political campaigns was the avoidance of any reference to differences with foreign policy as applied to current international relations. While the candidates might beat each other up on their differences in domestic policy, the rule was that politics ended at the water's edge. Everyone recognized that the country had to speak with one voice in all matters of foreign relations, and any differences with foreign policy by candidates not in power were not to be discussed or even raised at all during any political campaign.

Trump completely ignores this rule, and in both campaigns where he was the outsider, he hurled numerous charges against the current administration for its foreign policy decisions. Trump was not and is not being taken to task for these actions, and the administration is left with a serious dilemma. If it responds directly to Trump's charges, it may itself breach security over foreign policy issues, but if it fails to address the charges, the public is left only with Trump's version on what might be important differences.

There is no historical precedent for any of this. No candidate in history as responded as Trump has to events in a presidential campaign, to the public's reaction to his response, or to the prediction of future events as indicated by polls and expert opinion. In all of history, no presidential candidate until Trump has ever had any hint of a criminal record. If Trump is elected, it will be the first time in history for a president-elect to be a convicted felon.

In the election of 2016, Clinton won the popular vote by a whisker-thin margin, but under the arcane procedure of the Constitutional provisions applicable to presidential elections, Trump won the electoral vote of the states and was declared the winner. In the election of 2020, Joe Biden won both the popular vote and the electoral vote and was declared the winner. To this day, Trump has refused to acknowledge Biden's victory.

The election of 2024 will be Trump's third go at the presidency, and the effort may not end with the election, even if he loses. Trump claims that if he does not win the election this year, it will be because of fraud on the part of the Democrats, and he threatens with hints of unspoken actions that violence will result, supposedly to overturn the result.

For all of these and many other similar reasons, a significant sector of our population believes that Trump's candidacy is an outrage and that he ought to be run out of town on a rail. But almost half the electorate, looking at the same facts but through different lenses, are prepared to go to the polls and return him to the White House. The result appears to be an extremely close election that may well be decided by a tiny group of voters from a handful of swing states, who claim today that for some reason or other, they have not yet decided what the outcome ought to be.

This is no time for complacency. I expect to be at the very edge of my seat until the campaign is decided.

 

Calm down

September 9, 2021

mckee

The Supreme Court is not telegraphing its intent to overturn Roe v Wade, and it has not approved the draconian measures recently adopted in Texas. The ruling of the court in declining to intervene was on procedural grounds that the application before it was either premature or procedurally defective in some way. While the dissenters were vociferous in their individual reasoning, all of the arguments for granting the petition to intervene were based on the premise that the underlying law under attack was really, really atrocious and somebody ought to do something about it right now. None address the procedural obstacles presented to the court’s intervention.

The Supreme Court is a court of last resort. The usual case comes to it after having been heard and decided in a federal trial court, appealed to a circuit court of appeals, and then brought before the Supreme Court for final review, or having been heard and decided in a state trial court, appealed within the state to the highest court there, and then brought to the Supreme Court for review of federal constitutional issues.

There are close to 700 Article III federal trial judges – not counting magistrates and bankruptcy judges - and almost 180 appellate judges in the 13 circuit courts of appeal. The vast majority of all federal cases are resolved completely within the system of trial and circuit judges. Only a handful of cases are selected for appeal to the Supreme Court, usually being cases where there is a difference of opinion among the circuit courts and an “umpire” decision is required.

A handful of cases reach the court on appeal from supreme courts of various states. Where a constitutional issue is involved, a case that is handled entirely within a given state may be taken to the Supreme Court after a decision by the highest court within the state on a writ of certiorari.

Very rarely, the court will hear a case for the first time at the Supreme Court level, without requiring that it come up through the appellate system or be tried to completion within the state system. These are called cases of original jurisdiction, and the power is delineated in Section 2 of Article III. This section includes only cases affecting ambassadors or the like and those in which a state is a party. The court has held that the limitation upon its authority to take original jurisdiction cases cannot be expanded by legislation.

The court could have intervened in the Texas abortion law case, of course, upon the grounds that it is the “supreme” court and may do as it damn well pleases. But it rarely does so, and then only on extreme situations – witness, the Gore v Bush intervention and decision following the 2000 election.

This means that the majority of the court does have a point in the Texas abortion law case. A fundamental requirement for judicial action is the existence of a “case” between actual, existing “parties” that needs to be “decided.” Our entire system of justice is based upon this premise.

In the Texas situation, there was no case – yet. There is no mention on the record before the Supreme Court that anybody had actually sued anybody under the Texas law, or advanced any specific threats to do so, sufficient to support a specific restraining order. There is no target defendant in the case to restrain, nor any specific aggrieved party to protect – yet. The legislature passed a law, but no one has acted upon that law – yet. At least no one within the record of the proceedings before the Supreme Court.

This may look like the long way around and not be a slam­-bang, bring down the curtain once and for all result the proponents wanted from the Supreme Court, but it’s the way these things are supposed to go as the trial court undertakes the business of building a record to support an eventual ruling on the merits – one way or the other – that will form the basis for appellate action through the courts and to the Supreme Court if need be.

The plain fact is that this law may never see the inside of a federal court. It is so obviously defective that it may well be eviscerated and buried by state court action long before any federal court is called upon to rule. In fact, the process has already started. The New York Times reports that a Texas state court trial judge has issued a temporary restraining order restraining a specific anti-abortion group from filing a threatened action against a specific Planned Parenthood office under the new law, placing everything on hold until September 17, 2021, to allow time for briefing and the development of a judicial record.

So: calm down. The law is awful as drafted and should not survive judicial scrutiny when it is properly brought before a proper court, with proper parties, and the existence of actual conduct to examine and rule upon.

Be patient. Give the system a chance.

Give him a break

August 22, 2021

mckee

President Biden made absolutely the correct decision to dump Afghanistan. There were no good options. We had to get out and chaos was imminent the moment we left. It is significantly better to get the loss we are bound to suffer behind us now than continue the agony of delay. Nothing would be gained by remaining, with much more to be lost.

American involvement in Afghanistan was hopeless. The military occupation of Afghanistan was a mistake from the beginning. It was an outgrowth of President Bush declaring a “war” on a common crime. Prior to 9/11 all terrorist activities were prosecuted in civilian criminal courts. After 9/11, with Bush’s “War Powers Act” enacted in response to the attack, terrorists could also be tried in military courts. Since 9/11 civilian criminal courts have continued to try individuals of terrorist activities and have convicted more than 660. Military tribunals have convicted eight, two of which were overturned on appeal. Guantanamo was created and continues to exist as a military, diplomatic and constitutional cancer, ignored by the powers of every administration to inherit it, and with no end in sight.

Afghanistan attracted the attention of Bush’s forces because it was thought to be the hangout of Osama Bin Laden and the location of Al Qaeda training facilities. The initial military objective was to find Bin Laden and to destroy the Al Qaeda training facilities. What we should have done is treat the situation as the remnants of an ordinary crime, gone into the country with targeted military maneuvers to get in, destroy Al Qaede resources, and get out.

Instead, we instituted a major military operation under the War Powers Act. We did clean up the training facilities, but Bin Laden slipped away. Once in country with a major military force, we appeared to sweep out the Taliban. The U.S. established military bases near all major cities in the country and settled down to assist in reforming the government.

It is not clear when the mission changed from pursuing Al Qaeda to assisting the Afghan government remain in power, but it did change – to national activity the U.S has proved itself to be notoriously inept at accomplishing. Whether we acted militarily or diplomatically, history is strewn with our failures in the area bringing about productive, positive change in the government of any country that has not invited our participation.

Initially in this case, we were taught that the Taliban were allies of Al Qaeda, beset with the same international goals, and therefore justifiably declared enemies of the West. We now know this to be wrong. The Talban are an intensely nationalistic sect of radical Islam, with no international aims of any kind. It is a brutal regime, to be sure, but it did not and does not share any of the international aims of Al Qaeda. The Taliban had no bone to pick with us outside of our involvement and interference with their country.

Compare our initial impression of VIET Nam’s Ho Chi Min, whom, we were told, was an international communist and an ally of Red China. As it turned out, nothing could be farther from the truth. Uncle Ho had no interest in international communism and was intensely distrustful of his Chinese neighbor; his only interest was in the people of Viet Nam and fin seeing reunification of the country. We were led down exactly the same path with respect to the Taliban in Afghanistan as was fed to us about Ho Chi Min in Viet Nam.

It took years to convince the leaders of our country – through three administrations and into a fourth – that strange as it may appear, most Afghans prefer the Taliban to anything the West was proposing in the way of leadership for their country. Despite how brutal the Taliban were to their own people, we continued to lose ground in the country. We were making no progress in reorganizing the government or finding competent leaders to take over. Corruption was rampant, incompetence everywhere, and the government in place was ineffective. There were, and are, no realistic prospects of positive change.

Exactly the same result was occurring in Afghanistan to our efforts to reform the country as happened to us in our efforts to establish a viable government in Viet Nam. A return to the brutal government of the Taliban was expected by everyone – the only issues were how long it would take once we were out of their way. For us to remain longer would only postpone the inevitable, it would not have resulted in any difference in the result. The disaster that resulted was completely predictable to anyone with even a smattering of knowledge of history.

Certainly, Biden should pursue rescue missions to bring out those most in danger of any Taliban take over. But this is a new mission, centered on U.S. and humanitarian interests, and is not in any wat connected to the existing Afghan regime. It’s a new mission, not a continuation of the old and the distinction is significant. Perhaps the Taliban might even assist us in our new efforts.

Get off Biden’s neck and give him a break. Let’s see what he does next.