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Posts published in “McKee”

Calm down


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


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.

Perilous times ahead


Most who are or used to be considered Republicans believe in a degree of fiscal conservatism: that taxes should be exclusively used to raise money to run the government and not as tools of social change, that federal programs run from Washington D.C. are not the answer to every problem of our society, and that our involvement in foreign relations should be limited to matters of national interest.

They favor a free market economy, but not the unregulated pipe dream advocated by the extreme right. John Maynard Keynes correctly teaches that the government should influence monetary policy, especially in precarious times. Adam Smith warned that the middle classes had to have protection from the capitalists’ greed. The last 40 years has provided convincing evidence that “trickle down economics” does not trickle down. No qualified economist has ever accepted the premises of “supply-side” economics. A degree of governmental regulation is necessary.

The Republican party used to be a big tent with moderate views associated with the more conservative wing of the party. The conservative wing spoke of the same policies as the moderate voices, but in stronger tones and in terms of absolutes. The farthest right would totally eliminate federalism, do away with taxation, and isolate the country from international affairs completely.

The politicians elected to office used to be a practical group, recognizing that the country presented a broad spectrum of political thought extending from the outer left reaches of socialism, through the liberal to moderate wings of the Democratic Party, then the moderate to conservative wings of the Republicans, to the extreme nuts of anarchy on the far right. They recognized that the actual government of the country, regardless of which party was in power, should exist from the middle, and they were content that the compromises worked out between the parties would fall somewhere within the 40% of policies bracketing the middle, satisfied that such results truly represented the will of the majority.

These views are no longer sustained by the Republican party, which has shifted so far to the right that its origins can no longer be seen. Worse, the party has taken conscious steps to drive out the respected moderate or middle-of-the-road members. Right-leaning middle-of-the-roaders are derisively termed RINOs -- Republicans In Name Only – and are being driven out of participation in any party affairs – the most recent example being Liz Cheney ousted from leadership for daring to express a view most consider to be only slightly towards the center.

Today’s Republican must support the utterly nonsensical contention that any opposition to a hard-right Republican position is nothing short of treason; that Democrats are not just of a different political party but are anti-Americans and are intentionally planning on destroying America. To this inane hard line has recently been added the equally nonsensical and inane requirement – being unquestioned, demonstrable support and loyalty to Donald Trump.

The introduction of Trump into this fray has been disastrous. Through a series of circumstances that no one expected then or yet understands to this day, Trump became President in 2016. History has never witnessed a more divisive political leader. His demand of subservient personal loyalty is out of mediaeval times and is a degree of fealty seen today only in the most severe autocratic regimes. Through vicious personal attacks delivered without edit or oversight via social media and in demagogic rallies, and with a complete disregard for the truth, in his four short years of office Trump personally managed to tear down or significantly weaken essentially every historical institution and perceptions of freedom that have been considered pillars of our democracy.

Because of Trump, our once widely respected free press is no longer trusted, the integrity of the FBI has been compromised, the NIH, our world class behemoth of medical research, has been weakened by charges of malpractice and incompetence, results from our independent judiciary are thought to be consciously political, the notion that no man is above the law is now open to question, and the motives of our prosecutors are examined for political purity. His actions have dispelled the notion that a congressmen’s and senators’ primary duties is to the country and Constitution, insisting instead that they remain tribal to the cause of the party. And in a most amazing display of petulant narcissism, he has convinced a huge number of us that our national election process – managed independently by the 50 states, and further independently within each state by the thousands of separate precincts and voting districts - was silently and secretly corrupted by a massive conspiracy which deprived Trump of a win and thereby invalidated the 2020 election.

One result of all this is today’s completely dysfunctional Congress. Congressional Republicans are refusing to compromise and refusing to consider any proposal they have not originated. The stand prepared to bring the country to a halt if their goals cannot be met. Under the present rules of the senate, the Republican minority is able to maintain a complete gridlock on legislative process.

It should be abundantly obvious that this philosophy of governance is absolutely destined to fail. As divided as our country is, there is no way it can continue if every decision has to be exclusively within the parameters dictated by those on the extreme right edge of one party. The only way we can thrive is if decisions are within the brackets of a comfortable 40% of middle -- with the extreme wings of both sides accepting these results as the will of the majority and the only practical reality that can be achieved in a democratic society.

Until the massive insurrection at the nation’s capitol, instigated by Trump, most believed that no matter what the political machinations were, the country itself was safe. Now, as we listen to the baseless and reckless accusations coming from the right fringe and watch the streaming videos of the senseless beatings and physical destruction they administered in the halls of our capitol, the future of our country is no longer a certainty. There are already discussions underway in several major political regions about secession or alternatives.

The immediate question is how long will the country bumble along if the Republicans do not act quickly and awaken to the necessity of reorganizing themselves. This means there is a real question whether Republican party will succumb to reality in time and either disappear or reinvent itself. Under present Republican leadership, and given their unexplainable devotion to Trump, the future for the party does not look good. But the situation is dire and the consequences will be disastrous if change does not come soon.

The country may well come apart first.

(photo/Dee Brausch)

And the beat goes on


The 2022 midterms are right around the corner, and the drumbeat is already starting. As the debate begins to heat up, and as the arguments begin to spin into the wildly hyperbolic, the gradual disappearance of any definitive means to judge the underlying value of what is being said is going to create a real risk which well may lead to disaster.

In days gone by, before cable news and the internet, and except for what could be addressed in private mailings, the dissemination of political argument was filtered exclusively the private media – the public airwaves and the printed word. On the print side, the universal standard of excellence was long considered to be the New York Times with its motto, established in 1896 by its then Adolph Ochs, as “All the news that’s fit to print,” It prided itself as being “the paper of record,” and was commonly recognized throughout the world as “the” standard of print journalism. Her articles were reprinted throughout the world with a citation to the New York paper being all the attribution necessary for credibility. Other papers trusted and sought to emulate the Grey Lady, and her insistence on the absolute truth as the hallmark of every word in the news pages. Recognizing the value of a reputation for truth, they were careful in their own reportage. There was a clear demarcation between the standards demanded of by the main-stream media and the obvious gossip found in the yellow journalism of the tabloids. We read our main-stream papers with the reasonable assurance that if it appeared in the news sections of a responsible daily, it was probably true.

For a time, television was recognized as the source for highlights on the daily news with the print media retaining its credentials as the source for details. Television matured to offer the steady, calming presence of the likes of Huntly and Brinkley, Walter Cronkite, Edward R. Murrow, and others, during times when even a word out of place would bring immediate corrective action and a single mistake could ruin a career, lest the objective truth of the network’s news operation be compromised by even the slightest nuance of error.

Cable news and the internet have changed all of this. Print journalism has all but vanished as an arbiter of the truth, with daily papers reduced to little more than advertising circulars, and weekly magazines diverted to entertainment reviews. Cable news, with its 24-hour continuous news cycle, has replaced the print media as the sole source for many of us. Print circulation of the New York Times, for example, was down to 374 thousand in 2020; Tucker Carlson’s viewership on one given night reached 4.33 million.

Criticism once reserved to a newspaper’s opinion expressed editorially now spills over to the news side, with critics freely castigating news articles that appear to present a candidate in a poor light. The relentless attacks on the press has taken its toll. Although no actual reason has ever been offered to distrust the responsible press – as opposed to the tabloids – the overall reputation of “the lame stream media” has suffered.

The typical cable news story is given 90 seconds or so to cover on any given show. Partisan networks are the order of the day, with Fox News to the right and MSNBC to the left. Truth has become a potentially relative term, not an absolute, with defenders seeing nothing wrong with presenting conflicting statements of fact. When Chuck Todd challenged Kellyanne Conway to explain one of Trumps bald face lies, she blithely replied that the circumstance was merely some “alternative facts” to be evaluated by the listener.

What has become even worse is the phenomena of the internet, and the seductive influence of the social media outlets like Facebook and Twitter. If released by a celebrity or nationally recognized source, a blatant lie started on Facebook or Twitter can be republished and shared millions of times in minutes., with no machinery for corrections or explanations. Donald Trump, for example, is said to have over 25 million followers on Twitter, each receiving Trump’s tweets within seconds of release.

This brings us today to the incomprehensible enigma of what many on the right claim as “the greatest crime of the century” and what the left maintain is “nothing but a great lie” – the claim that Trump was the actual winner of the 2020 election. No part of this claim has withstood the detailed examination given to it thus far, which includes thousands of investigative stories in the press, hundreds of hours of television interviews and comment, multiple vote and ballot recounts, the official releases of every election official involved in every one of the affected states, and in the judicial opinions of over 60 different courts in as many federal and state jurisdictions.

Notwithstanding this overwhelming barrage of counter circumstances, the Trump supporters cannot be dislodged from their stance that Trump was the victim of a massive conspiracy, and their insistence that all Republican officeholders stand behind Trump in this assertion. This intractable position has affected almost every member of Congress and will undoubtedly play a large role in the coming election campaigns.

The danger here is not from the individual who is keeping up. We can sort out the machinations and keep track of the pea is as the walnut shells are maneuvered about. The risk is to the ordinary voter who comes to the table late – who is not paying attention now, and who will not be paying attention until the election year is well upon us. Perhaps this will be around primary time in May, but more likely it will be in the late summer or fall, when the campaigns begin in earnest to gear up for the final run to November’s election day.

This risk is this: By next year, the parties and entities now undertaking the task of responding to the outrageous charges being made today will have grown weary of the exercise. By mid-2022, they may not be defending the truth with the same vigor and may well leave some of these egregious allegations unrebutted. Any newcomer to the scene, without a reliable standard for the measurement of truth or identification of fiction, and seeing only a lukewarm response from the adversaries, may be dissuaded onto the wrong course. The result, if this happens and is carried to any logical conclusion, would be chaos.

And you thought once Trump left office it would be over.

An unmistakable gesture is needed


One of Trump’s enormous mistakes was unilaterally dumping into the trash the finely negotiated Iran nuclear pact, officially termed the “Joint Comprehensive Plan of Action,” or J.C.P.O.A., that Secretary of State John Kerry had accomplished in an astonishing diplomatic coup never achieved before or since. Trump declared that the U.S. was pulling out of the pact, declaring it to be the worst deal ever. He imposed draconian economic sanctions upon Iran to force them to return to table to negotiate an agreement more to Trump’s liking.

Nothing happened the way Trump wanted. Iranian leaders ignored Trump’s threats and refused to consider renegotiating the deal while the sanctions were in place. Relations with the U.S. steadily soured as Iran has stepped up aggressive actions in the Middle East and appeared ready to return to production of nuclear weaponry. Our European allies largely ignored the U.S. sanctions and Trump’s threats and have continued as though the pact was fully operational. Russia and China have distanced themselves from the fray and are ostensibly trying to appear aloof, while working for their own interests in the shadows. The Middle East economy is in chaos. In the four short years of the Trump administration, the world situation with Iran has moved from one of easing tension and cautious optimism to one approaching the rim of disaster.

Prior to Trumps precipitous action. relations with the United States had been improving. Under the leadership of the more moderate Hassan Rouhani, Iran’s president who took over from the radical iconoclast Mahmoud Ahmadinejad in 2013, Iran’s civilian economy and its relations with its European neighbors was improving while its hardline military presence was softening. Although the country was also under the joint-but-supreme control of the rigidly militant Ayatollah Khamenei under its dual-headed government which no one in the West appears to understand, President Rouhani was making headway in many areas. Trump’s actions re-invigorated the position of the hard liners, making Rouhani’s tasks of any further improvement in relations with the West all but impossible. Rouhani’s term is up in June and the next five years depends greatly on whether the moderates can hold on to Rouhani’s position.

Biden has been tip-toeing around trying to get all the players back to a table somewhere to work out a solution. Iran refuses to agree to reopening negotiations so long as the economic sanctions are in place. Biden is being pulled by traditional diplomats who insist that any concessions by the U.S. must be met by reciprocal concessions from its adversary. The advice is that the U.S. should never concede one iota of any position taken until and unless there is a reciprocal and satisfactory concession towards the U.S. demands; that there must be a quid pro quo that we approve of. The result so far has been a frustrating stand-off, with no progress on the U.S. vs. Iran fronts and an impatient Europe getting more nervous as the war clouds of impending disaster continue to mount.

The answer seems obvious – at least to get the thing moving in the right direction. Biden should just undo what Trump did. Lift the sanctions and declare that the U.S. is once again a member of J.C.P.O.A. He can do this unilaterally with the stroke of a pen. It does not require Congressional approval. There in nothing written that says it has to have the approval of the other members of the J.C.P.O.A, meaning there is no need to get diplomats around any table somewhere. Just declare it done.

Do not misunderstand. The J.C.P.O.A. is not the best deal in the world, nor was it intended to be. It is full of holes and fails to address many problems that are in desperate need of solution. But the pact is a start; it is a beginning that no one thought possible, a first step that could lead to other actions. What is more, it had the support of every world power in the industrialized world. It was a remarkable diplomatic feat. Throwing it away because it was not good enough was just plain dumb.

There is no guarantee that trying to paste the thing back together again will work. But for sure it cannot make it worse, and the diplomatic symbolism of the gesture would be unmistakable.

Is disaster inevitable?


The depth and breadth of the situation we are in is staggering. The damage already done is so invasive and the remedies we have attempted are so inartful and ineffective that it may be too late. Some hoped that as soon as Trump was off the stage, we would come to our senses and normalcy would begin to return. It is becoming increasingly apparent that this is not to be.

We face a situation today where fully 50 million of us, if not more, are convinced that the recent election was a fraud, the product of a massive conspiracy by the Democrats to steal the presidency from the rightful Republican incumbent in favor of a senile, incompetent has-been. What is worse, this huge segment of our electorate refuses to accept the lawful recourses provided through investigation and reports by local election officials, audits and recounts by state authorities, and the unanimous judicial declarations flowing from over 60 separate lawsuits filed in different federal and state courts. Instead, and inexplicably, all of these resources are now considered part of the conspiracy.

The U.S. Senate – once considered to be the greatest deliberative body in the world, the pride of our democracy and a paragon of legislative excellence – proved itself to have feet of clay when its members, facing a basic issue of patriotic duty versus personal interest, turned the recent impeachment effort into a partisan farce. Members of the Senate were not mere jurors, they were front-seat witnesses and very nearly victims. The House managers did an outstanding job of laying out the case for impeachment. The president’s lawyers presented a sophomoric defense that bewildered their profession and embarrassed their cause. And yet, fully half the Senate struggled incomprehensibly with the decision.

We can see now that the invasion of the Capitol on of January 6 was not an unexpected surprise, but the intended result of a deliberate campaign to undermine the basic tenets of our democracy – being the principles of an unyielding commitment to majority rule, of equal justice under the law, of the sanctity of the vote, and of a universal demand for the truth, enforced and guaranteed through an independent judiciary, and all enabled and protected by a wide and unrestricted free press. Every one of these fundamental and essential concepts of our democracy have been shredded incomprehensibly by the direct efforts of our past president.

We first saw our demand for truth begin to soften and wither when Trump began his first campaign for the presidency in 2015, filling his campaign with outrageous claims and promises. The media, faced with the 24-hour news cycle, covered everything Trump said. Trump was not taken seriously at first; he was considered a side-show, a carnival event with no chance of winning. Perhaps because of this, the template was originally laid for no critical comment from the press, just “accurate reportage” with the obligation to defend left to others.

Initially, Trumps’ charges were shrugged off as exaggerated campaign issues from an outlier. It did not matter that Trump had taken the notion of exaggerating campaign issues to an outrageous level previously unheard of. Most thought he was running as a stunt and would pull out before getting close to any real heat. Others were convinced that the party insiders would not allow him to get too close to the prize; that there were ways to derail this ill-fitting candidate before he became a real problem.

By the time the party woke up to what was happening, it was too late. With all the reasonable alternatives knocked out early, by May of 2016 the party faced the predicament of nothing but Trump or unsavory choices for the final run. The party grudgingly accepted the inevitable and came out of the convention fully believing that the year was lost.

But the machinery behind Trump knew what it was doing. The central task was to erase the credibility of the national press. When the press finally woke up and began inserting immediate corrections to lies and distortions, Trump did not concede error or retract what he had said but instead doubled down, repeating everything and blaming the accusers. The notion was that it was not Trump who was stretching the truth, it was the national media – all of whom were left-wing communists bent on destroying the county. Sean, Tucker, Rush, and all their ilk, lapped it up. Talk radio thrived. Fox News capitalized on the wedges being driven down the middle of political news. The Washington Post began counting the lies Trump told – to a number that eventually reached an astonishing middle-five-figure total. This was of no matter, of course, for Trump’s followers did not read the Washington Post.

What was at work here was, and is, a principle directly out of Joseph Goebbels, the propaganda master allied with Adolph Hitler in the 1930s: “If you tell a lie big enough and keep repeating it, people will eventually come to believe it.” Trump’s drumbeat was paying off. Suddenly, we were dealing with “alternative facts” concerning the economy, health care, taxation, immigration - and election returns. We were told that these were not really lies or distortions or untruths – just a different way of looking at things. From the right instead of the left.

To our great dismay, these painful devices began to work exactly as predicted. In May of 2020, Trump started the theme that the election was going to be rigged. He kept this lie up without a break, and without a single fact to back it up, straight through to November. It was exactly the same theme that he ran in 2016, when he first ran against Hillary. But in 2020, Joe Biden did not run into any last-minute grenades, and he never took his eye off the critical battleground states. The result was a convincing win in total votes, including most of the critical background states, giving Biden a solid majority of the necessary electoral college.

Out came the “alternative facts” that Trump had been drumming into his core supporters for years. The Democrats had stolen the election. No matter that the media reported there to be no evidence of any wrongdoing, the national press was lying, and “everybody knows” that they were not to be trusted. No matter that every time Trump went to court over an election issue, being over 60 times in six states, the judges found there to be no case wrongdoing. Again, to the core of Trump supporters, the courts were incompetent, they did not look at the evidence, and “everybody knows” that the judges were not to be trusted. Trump had been this for years with no one seriously challenging him, and his efforts were paying huge dividends.

Because of Trump’s drumbeat of lies, we now find a furious segment of the Republican party, convinced beyond reason that the Democrats rigged the vote and the electoral college result against Trump and stole the election he had won. The same group now believes that the state election authorities are incompetent, the courts are corrupt, and Congress is ineffective in correcting the wrong.

This massive number of believers, who might be as many as 74 million strong if all who voted for Trump are counted, are writing and talking incessantly. They are not backing down. They are not coming around to reason. The Tweeter and Facebook rules will not contain them. Their declared objective is to regain control – not by the respected democratic means of open elections and majority rule, but by the direct application of force. Their text messages are filled with reference to military action, martial law, and armed protest. Signs of their efforts are everywhere. Witness the increasing number of death threats to election officials, the kidnapping attempt on the Michigan governor, and the demonstrations bristling with assault rifles and body armor that are springing up in state capitols all around. Is anyone still surprised at the armed invasion of our national capitol building in January?

What is next? And where will it end?

All uphill from here


Let me be clear: the election process was not perfect, but that is not the issue. The issue is whether the individual instances of errors and irregularities that would inevitably have occurred in any election of this size can be combined into some sort of massive, criminal scheme carried out under the direction of the Democratic Party that would have impacted the outcome of the entire election adversely to the re-election of Donald Trump?

This is what Trump is claiming. It should be considered complete baloney by all quarters, but it is not.

The growing emphasis on one-man, one-vote, the insistence on greater transparency, and the advent of technology, television, and the 24-hour news cycle have combined to virtually put an end to the corrupt political practices that spotted former times of our election history. In a recent study titled “The Truth About Voter Fraud” by Justin Levitt, published in 2007 by the NYU School of Law’s Brennan Center for Justice, the author concluded after a lengthy investigation covering all states that by any measure, voter irregularities have become extraordinarily rare. While he found allegations of voter improprieties were common, investigation invariably revealed that most claims were without basis or were greatly exaggerated. The author concluded that “[M]uch evidence that purports to reveal voter fraud can be traced to causes far more logical.…” The cataloged reasons found by the author were clerical or typographical errors, lack of uniformity between voter rolls when compared with other sources, and just plain innocent mistakes. The 2020 election appears to fit his conclusions.

In Trump’s thirty-some lawsuits challenging the vote in six states, handfuls of anecdotal instances of alleged irregularities were presented with the argument that they were representative of a wide-spread fraudulent conspiracy in the election process. However, when the affidavits were examined in detail, the anecdotes recited did not include any evidence of any connection between the incidents being described and the Democratic Party organization, or on the existence of any overall plan or scheme, or contain any of the specific elements necessary to prove fraud.

According to the Washington Post summaries, most of the instances reported as irregularities were technical mistakes that were caught and corrected in due course before the final count was determined. Other incidents were based on hearsay reports from unidentified workers to election observers rather than from the workers themselves pertaining to optional processes allowed by law and being taken in some precincts but not in others, or of irrelevant confrontations with the Republican observers. None went beyond describing an action the writer thought seemed peculiar with the writer’s conclusion that things were improper. In most instances, the affidavit writers were Republican observers who were untrained and unfamiliar with the processes they were observing. When examined, the circumstances mostly turned out to be normal steps in the complicated processes involved. In any event, the isolated Instances, even if illegal, would not be evidence that the entire process was tainted absent additional proof. Collecting a large number of such individual instances does not improve the proof; it is still only evidence of separate, individual incidents.

Republicans argue that statistical results were out of whack with what had been experienced in previous elections, and that this was circumstantial evidence from which one could assume irregularities from the numbers. However, in this case, the circumstances are completely explainable. 2020 was an extraordinary election because of the Covid-19 pandemic and because of the political spin placed on mail-in voting by Trump. Early polls and surveys indicated that a huge number of Democrats – many times more than in previous years – intended to vote by mail. Trump, on the other hand, was castigating the mail-in voting process and Republicans, by and large, were being encouraged to vote in person. Everyone – even Republican sources – predicted that the mail-in vote would heavily favor the Democrats. Everyone – even the Republicans – were aware that the early vote counts would not be indicative of the final totals until the mail-in vote was counted. The resulting returns happened almost exactly as predicted, with the totals being very close to that predicted by the pre-election polls. The law does not allow one to choose a result from circumstantial evidence that can be fully explained more than one way.

What is missing from all of the affidavits surveyed so far, and all of the arguments advanced in court so far, is direct proof of any sort of actual common plan or scheme by the Democrats that could tie the disparate collection of irregularities together, or any proof of fraudulent intent on the part of any Democratic leaders in directing or arranging for the irregularities at any of the voting levels involved. Even if statistical proof of irregularities existed (which it actually does not) or could be taken as valid in questioning an election (which it actually cannot) it would not help establish the specific criminal elements of the massive corruption Trump is alleging. Statistics may not be used to prove the necessary specific criminal intent or the existence of a plan or scheme, which are the necessary elements of a fraudulent conspiracy. There are no assumptions or presumptions here – it takes direct evidence of the wrongful acts or circumstantial evidence that cannot be explained any other way.

The deficiencies in these affidavits as admissible evidence in court was obvious and was why they were found unacceptable in every case by the several courts in all six states where litigation has been attempted. It should be noted that several instances were findings by trial judges recently appointed by Trump. In no case has any court found there to be any proof of fraudulent intent on the part of the Biden Campaign or the leaders of the Democratic party, nor has there been any direct proof of any agreements between or among these entities pertaining to the election process.

In fact, and in the real world, criminal conspiracies are almost always broken up by either turning an insider into a prosecution witness or by inserting an undercover agent into the operation who works his way into a position to uncover the entire operation. Without insider testimony, these cases are very difficult to put together and try. In the election cases, and despite the fact that the Department of Justice, the F.B.I. and John Durham, the special prosecutor appointed by the Attorney General, have all been working on election problems for over a year, there is no suggestion of any leaks that have occurred and are being followed up, or of any knowledgeable insider who has come forward with an offer of testimony, or of an undercover agent embedded in any state operation. Attorney General Barr conceded in a recent interview that neither the Department of Justice nor the F.B.I. had any evidence of any fraud in any of the counting that would alter the course of the election.

Nevertheless, Trump continues to maintain his drumbeat claim and that he actually won and that the entire election was a massive, fraudulent conspiracy manufactured by the Democratic Party and the Biden campaign. He knows that if he keeps repeating his claims over and over again, eventually somebody will begin accepting them as true. And this is exactly what is happening.

According to a recent post-election poll, 77% of Trump voters believe as a fact that Trump won the election and that Biden’s victory is the result of a fraudulent conspiracy by the Democrats. Factoring this percentage against Trump’s total vote means that fully 57 million adult American voters believe the election to have been fraudulent.

Most of us will heave a sigh of relief when President-Elect Biden finally takes over in January, but unless something changes, it is still going to be all uphill.

It ain’t over yet


We are going to be dissecting this thing for years. How could they have voted for him after what came out about him? Where did all those votes come from? Why wasn’t it a landslide all the way down the ticket?

The reason is in some basic, fundamental principles of propaganda. That we listen selectively and hear what we want to hear. That a proposition repeated over and over as being true is eventually accepted as true. And that we tend to remember the first thing we hear about a subject and the last – primacy and recency – giving lesser significance to information gleaned in the middle. Trump understands these concepts thoroughly and uses them all with abandon to drive home what Kellyanne Conway referred to at one time as the alternative truth. It is the practice of coming out early with outrageous comments about adversaries or events, and then maintaining a drumbeat of the same statement consistently – no matter what the forthcoming explanations might be – to the very end, all through the same outlets and all intended for the same ears.

In the case of every Democratic candidate to cross Trump in any way, he gave those willing to listen no option of what to recall first or last. With the barrage of words Trump maintained, and the media’s practice of reporting every word he said, the first and last thing anyone was going hear would be Trump’s claim.

It did not matter that his words were lies, or were completely wrong, or had been thoroughly rebutted. Those in Trump’s base, depending on background, education, position in life, attitudes of the day and feeling towards the speaker, listened selectively. They heard what they wanted to hear. Further, and as the propagandist knows, repetition can easily substitute for credibility. The more times a proposition is presented as true, the greater the chance that it will eventually be accepted as true. And while Trump was driving these messages home to the base, the general electorate was subjected to the same messages, albeit not with the same level of intensity. But the same principles work for everyone, capturing many who either left their guard down or were not listening intently.

Trump maintained for months that the only way the Republicans could lose the election was if it were fixed. The claims were dutifully reported widely by the mainstream press and all the news networks. The reaction of many was to roll their eyes, and mutter, “There he goes again,” recognizing the hype and not falling sway to it. It is only now, after the election, that defenders are coming forward with the explanation that there is no evidence to any of the claims being made. But this comes after months of the drumbeat claims of fraud and corruption.

Now, when the media repeats Trump’s more outrageous claims, someone might add, “But there is no evidence of this accusation.” But this is too late. Those listening carefully would correctly take away that there is no evidence of any corruption or fraud in the election. But too many do not listen carefully and might well remember – through primacy, recency or repetition, all the claims that have been made during the months and months before, and - despite the cautionary warning – accept that there is something wrong with the election process.

Put some number of millions of these listeners behind a TV set with nothing but Fox News, or give them radios only tuned to Rush Limbaugh, Sean Hannity, or Mark Levine, and they will not only remember the claim as told, they will believe it, and be advocates for doing something about it.

Trump’s impact is going to be with us for a long, long time.

What a mess


Our government is in dire straits, with an impossibly arrogant president so deep in corruption, incompetence, and ignorance that the foundations of our democracy have been laid bare and are actually beginning to wither. He has managed to circumvent or stymie the intricate network of checks and balances put into place to prevent just this circumstance. The national press has been rendered essentially impotent and fully half the country is either caught up in the machinations spewing forth from the Whitehouse or is just plain oblivious to the happenings.

We are so far adrift in our foreign affairs, and so completely cut off from our allies and trading partners, that we are on the verge of being considered irrelevant by the rest of the world. We have become a selfish bully internationally, tolerated and placated by our friends and manipulated into atrocious mistakes by our more devious enemies. We are no longer respected for the examples we set, admired for the skill of our diplomacy, or trusted in the use of our military power. We are no longer considered a leader in the industrialized world.

Our Congress is in shambles. The Republican members have led the Senate to abandon its principled independence under the Constitution and to become hostage to an autocratic bully who demands personal loyalty and absolute obedience no matter what the cause. The result is a dysfunctional body that has failed to uphold its responsibility of oversight over the executive branch, a necessary element of the checks and balances created by the founders.

The most disturbing development is the complete abrogation of any respect for the truth. From a not-distant time when the worst thing a high-level political leader could be called out for was a deliberate lie, we now accept, acknowledge and report on “alternative facts,” as though truth were merely an option to be decided relatively by the desirability of the position taken. The president’s penchant for distorting the facts is to the point where the press has given up trying to keep up with the truth; instead, they report his words verbatim and then offer non-committal scores on how many lies he has told – with a number that now reaches into the thousands.

The necessity of replacing Trump this November could not be more apparent. The impeachment is behind us, and history will eventually tell whether the Senate trial was just a mistake or an outright debacle. Things are bound to get worse, and if Trump is re-elected, they will get much worse. He is already testing the concepts of “president for life” with his base at rallies and in casual conversations, and the cognoscenti foresee obvious signs of his intentions to seek a way around the 22d Amendment if he is elected to a second term. We are literally facing the possibility of a dictatorship being forced upon us.

Against this background, the Democratic Party gives every appearance of doing its best to screw things up. The party is made up of so many factions that working towards a consensus is proving to be a Sisyphean task – and one that appears out of the grasp of current party leadership. The run-up to the formal campaign has been an unorganized cluster-bleep, with no guidance from the DNC. The Iowa curtain-raiser was a disaster, and the DNC and its chairman are getting soundly roasted for it. Party management continues to maintain that the open and unfettered competition will produce the strongest candidate – which sounds fine in theory. In practice, the number of candidates running against each other present a substantial risk of the predictable infighting chewing up the winner of the primaries so badly that he or she will not recover in time to win the general.

From jaundiced view outside the party, by the undecided, independents, and disenchanted Republicans, being the potential voters who have to be corralled in the general election if Trump is to be beaten, the candidates currently leading in the race to face Trump in the fall look like (1) an over-the-hill avowed socialist, (2) an ultra-liberal technocrat so deep in the weeds that she keeps getting in her own way; (3) a nimble former Navy lieutenant, too soon out of college, who managed to become mayor of Podunk before coming out; (4) a good natured has-been who is telephoning in his third try for the job, and (5) an unknown and untested senator from Wisconsin. Wisconsin!

Inside the party, the youth are behind Sanders, but the older voters are put way off by his avowed socialism. Further, too many women blame him for Hillary’s calamity last time out. The far left are enamored with Warren but the moderates consider her a screwball. The blacks and browns won’t touch Mayor Pete yet, and Biden, who started out as the top dog, is really the second choice of even his closest supporters – he’s OK but they still keep looking around. His campaign is currently taking on water, and unless he’s got a rabbit in a hat somewhere, even a landslide in South Carolina may not be enough. Klobuchar did well in Iowa and got a huge bump in New Hampshire, but it is not known yet whether she can maintain and continue to grow on her recent successes.

In the second tier, Yang and Bennett finally tossed in theirs towels, but there are still the two billionaires, both late arrivals, who have been pouring their own money into the melee. If it were not for the money, they would be considered jokes. As it is, no one really knows yet what to make of them. The rest appear too far behind to have any chance.

Most Democrats will say that they can support any of the candidates up there, top tier or not, but that alone will not win the general. It has to be assumed that the Democrats will turn their own voters out in numbers to beat, or at least match, the turnout from the declared Republicans. The winner, then, is going to be determined by the key votes in the battleground states from the independents and disenchanted Republicans. That is going to take something more that party resolve.

This means the ideal candidate probably has to come from the middle. Best would be a moderate, acceptable to the progressives who will not drive off the youth, or a progressive, satisfactory to the moderates who will not drive off the elders. He or she will keep the non-white vote energized and the women fired up, will satisfy the unions without driving small business away, be able to sustain the withering attack that will come from big business and the hard right, and manage throughout to keep Trump safely tethered or in his cage. Sanders and Warren are too far left, Buttigieg cannot get the black and tan votes, Bloomberg is too old and is going to have trouble with the non-white vote on account of baggage from his time as mayor of NYC.

This probably means Biden, Klobuchar, Buttigieg if he solves his problem with the non-whites and can hold on to the evangelicals in the South once they realize he is gay, or Steyer, if he can solve the problem of name identification and the stigma of being a billionaire – and for all of them, that they can enchant or scare the youth vote into staying engaged and getting out to vote. If Bernie is tossed under the bus, this is going to be a tall order under the best of circumstances.

One can foresee a Democratic convention with three to five candidates going in, each with a share of the delegates but no clear front runner – a sight not seen since the 1950’s. If such should happen, it might be possible to run the convention in a constructive fashion, and come out with the entire party enthusiastically united behind the selection, but the risk is that the convention will divide itself into warring factions with the winner winding up not being the consensus leader but rather a compromise, mutually unsatisfactory to most, but with a good sized number walking away unsatisfied and planning on staying home. Which could be a disaster.

Fasten your seatbelts, everybody, it is going to be one hell of a ride.