Not my problem, John

No one likes hot potatoes, and Trump was one of the hottest. Mueller punted on holding him to account in the Russia election interference investigation, hinting that it was really up to Congress (and the House indeed did give it their best shot, first for the Ukraine call, which was a much clearer case than the Russia election interference scandal, and then for his role in Insurrection Day which was (or should have been) a slam dunk. There Mitch McConnell did much the same thing, saying after he voted not to convict, that the judicial system was where Trump should be held to account.  The institution to which Mueller passed the buck ultimately passed it on to the judiciary. The buck clearly only stops when it's no longer too hot to hold.         

Unconstitutional

Listening to Trump's pugnacious and mendacious defense team's closing arguments, I was reminded of leaders around the world who, when bought to justice, claim in their defense that the judicial system holding them to account does not have the authority to try them. 

In Trump's case, that question had been settled when the Senate voted that the impeachment was permitted under the constitution. Continuing to make the unconstitutionality argument after that decision only emphasized how undemocratic Trump and his team are. And by extension, so are all the senators who considered Trump culpable but voted to acquit on the grounds of unconstitutionality.

covid as a diagnostic for racism

Harassment and attacks, some physical and violent, against Asian-Americans has been on the rise since covid. Trump has been blamed for inciting this by his use of terms like Chinese virus and Kung-flu. While that has clearly had an effect, the reality is deeper and darker; Trump's words were oxygen blown onto already smoldering embers.

To see why this is not about language and terms per-se but about the underlying racism that the words tapped int, consider the Chinese virus vs the British [covid] variant. If it was the simply language that was the cause of the rise in ethnically targeted violence, then one would expect to see a rise in violence against Brits; which of course there hasn't been. So it can't be the language but the interaction of the language with underlying attitudes. In other words racism.  

As a footnote on language, it's also interesting that it's only some ethnic groups who we label as "Something-Americans", for example, Asian-Americans, Mexican-Americans, African-Americans. As a British ex-pat I'm not called a British-American even though I am a US citizen.  It seems as though groups that have been and are still discriminated against have taken on this labeling heuristic to emphasize that they are actually American; those who have not suffered racial discrimination—Brits, Scandinavians, Germans (and isn't that interesting!) for example—have, luckily, no need to send that signal.

Taking the long view

Anna Moneymaker for The New York Times

Covid has changed the way we see the world; and not metaphorically.  Of course there's the fact that we are now seeing our friends and colleagues in small boxes on a small and not in person. But Zoom aside, things look different.  I may be imagining things but what first struck me looking at this image of Mitch McConnell from today's New York Times is that is was taken with quite a long lens (perhaps a 300mm telephoto in 35mm format). The background seems too close to the figures in the middle ground who appear closer than they are to the foreground.  The depth of field is very shallow as well, again a feature of a picture taken with a long lens. 

Which got me to wondering whether photojournalists had swapped their normal-wide angles like the Nikon AF-S 24-70mm f/2.8 for something like the Nikon AF-S 120-300mm f/2.8E. Why? Well if they used to get into a scrum of journalists quite close to the subject they'd need the shorter length lens. But with covid getting close to people like McConnell isn't possible. Everyone not in "the bubble" must be being kept at a very safe social distance, so you'd need a long lens. So taking the long view is just good sense. 

Deliberation

The Senate today concluded the second impeachment trial of Donald Trump without an conviction. What is slightly surprising when one compares a trial in the courts with this trial in the Senate is the absence of jury deliberation. 

In a court trial, the jurors would sit and discuss the evidence they had heard during the trial; but that didn't happen here. Of course, logistically with a jury of 100 it is far more difficult to replicate the process of deliberation, but it appears not to be "required" of the jurors in an impeachment. I am speculating that this was something that would have had to have been negotiated between Sens. Schumer and McConnell in setting up the structure of the trial. 

Would it have made a difference had a way been found for them to do so? In the highly partisan atmosphere in Washington, it seems unlikely; but I suppose it's just possible that it might have.     

Criminal negligence or reckless endangerment?

Never mind dereliction of duty; Trump's willful decision not to come to the aid of those under attack in Congress on January 6th should be seen as criminal negligence or even reckless endangerment. 

Typical defense strategies against allegations of criminal negligence include asserting that the defendant's actions were the result of a mistake or accident, or, and potentially most applicable here, that the defendant did not know that his actions (or inaction) created a risk of danger. 

Trump was watching the riot taking place, had been informed that people in the Capitol were in serious danger (is there any other kind?) but when asked to act to stop the insurrection, he chose not to. 

Perhaps reckless endangerment comes even closer. The FindLaw website defines "reckless endangerment" as "the criminal offense of recklessly engaging in conduct that creates a substantial risk of serious physical injury or death to another person. Whether you meant any harm or not, creating a situation that puts someone else at risk is illegal".  FindLaw also writes that recklessness "means the person knew (or should have known) that his or her action were likely to cause harm".

Trump's failure to act during the insurrection, not to mention his actions leading up to January 6th, seem to fit this description. Suppose instead of a riot Trump had been watching a several hundred people drowning and had, at his beck and call, lifeboats that a could have saved most or even all of them. To not issue an order that the lifeboats be deployed to save the drowning looks like reckless endangerment. And that is exactly what he did (or did not do). When asked by numerous staffers, family members and even by those who were presently being attacked when they called him for help, he chose to do nothing. He simply watched on television as the insurrection roll on, apparently pleased with the way things were going. Add to this his prior acts; telling those now drowning, before they entered the lake, that the water was shallow when in fact it was deep or telling his supporters the election was rigged when the courts had determined that it wasn't, and you have a pretty solid case.    

McConnell argued today that this is not the end of the matter and that Trump may still face consequences in the legal system.  While McConnell maneuver to avoid being seen as party to the attempt to convict Trump in the Senate is despicable, I hope he is right on this and that the law catches up with Trump. All his life he has evaded accountability.  Perhaps this time he went a bridge too far. Perhaps now his past misdeeds will finally lead to his undoing.

Not so co-equal after all

Congress, the judiciary and the executive are supposed to be "co-equal" branches of government. Increasingly however, Congress has ceded power to both the executive and the judiciary. Laws are challenged and overturned in court seemingly with increasing frequency and presidents have taken increasing power to their office including decisions regrading military action which is constitutionally a Congressional prerogative.  But there can be no clearer indication of the surrender of Congress to the judicial branch than its decision to ignore its own ruling today.

All those senators who voted to acquit Trump today on the pretext that to do so would be unconstitutional are, in so doing, saying that the decision the Senate's prior ruling in the impeachment process that a president may be impeached even after leaving office is non binding and has no legal force.  By default therefore any determination regarding the constitutionality of impeachment of a president after leaving office falls to the judiciary. 

It will be interesting to see, as I assume over time we will, which GOP senators who voted to acquit did so because they thought Trump wasn't guilty of causing the insurrection and which thought he was but tried to weasel out of defying Trump by hiding behind an unconstitutionality defense. Those in the first camp must now rely solely on the support of MAGA faithful. Those in the second have to hope that their voters either have short memories or are prepared to overlook their disingenuity.  Either way, the Trump debacle of a presidency will be a stain on the country's history not just in future living memory—60 years hence—but in perpetuity.

Impeachment, Act II Scene 4 - The art of McConnell's comedy...

...is Timing. 

First, notwithstanding the fact that the issue was irrelevant, McConnell's argument about the constitutionality of the impeachment was self-defeating. He argued that impeachment was improper since it was for the sole purpose of removal from office and Trump was no longer in office.  But consider the timing.  The articles of impeachment were presented to the House and voted on while Trump was still in office. McConnell suggested that the articles were not transmitted to the Senate for trial until after Trump had left office which is why the trial was now unconstitutional. But the reason for that delay was that the Senate was in recess and could not receive them (Fedex anyone?). Why wasn't the Senate in session? Because McConnell chose not to recall it.  By not recalling the Senate he created this constitutional loophole for his party to walk though; that they could not try Trump after he'd left office though they could have done had McConnell convened the Senate after the House passed the articles and before Biden's inauguration.  

Second, his speech today on the Senate floor excoriating Trump was fun to hear, but as has been said many times in this blog, way too late. Had he come out forcefully as he did today condemning Trump's lies after the election rather than after the acquittal, Insurrection Day might not have happened.  But what about the legal challenges McConnell hid behind for so long; 'it is within his rights to pursue all legal avenues' McConnell said on the Senate floor in December.  But when all those challenges failed, then he could have made the same statement he made today and the course of history would likely have been changed. 

McConnell himself argued today that Trump's failure to act to stop the insurrection once it was underway made him guilty. He also argued that the consequences of Trumps lies leading up to January 6th were clearly foreseeable. So, by that same argument, if McConnell himself was able to predict the consequences of the Big Lie yet failed to challenge it as forcefully as he has just done, he too is guilty by negligence of contributing to the insurrection. And so he should resign.

Impeachment, Act II Scene 4 - Acquittal

Despite voting to call witnesses this morning, the trial of Donald Trump concluded today with a 57 to 43 vote to convict, short of the two thirds majority required for the motion to pass. Interestingly, one senator, Richard Burr of North Carolina who, on the prior question on constitutionality of this impeachment, had earlier voted that it was not, nevertheless voted to convict.  For the record the other GOP senators who voted to convict were Bill Cassidy (Louisianan.), Susan Collins (Maine), Lisa Murkowski (Alaska), Mitt Romney (Utah), Ben Sasse (Nebraska) and Patrick Toomey (Pennsylvania).  

That raises an interesting question (which I hope scholars with expertise in this area will shortly opine on) as to who has the final say as to the constitutionality of an impeachment. The Constitution identifies the Senate, rather than the judicial branch, as the sole body that is empowered to try impeachments but does that mean they have the ultimate authority to interpret the constitution as to when impeachment is or is not constitutional?  It is possible they do not and that the vote it took last week to proceed should properly have been decided by the Supreme court. But were that the case, shouldn't Trump's legal team have immediately challenged in the courts the Senate's vote to proceed with the trial?  That they did not suggests either incompetence (certainly plausible) or that they implicitly acknowledged the legitimacy of the Senate in ruling on the constitutionality question. Note, too, that no Senators, who might have had standing to bring such a case, chose to do so.   

That failure to bring a legal challenge as to the Senate's right to decide the constitutionality question implicitly endorses that right. It follows then that Senators were in essence legally required to vote on the merits of the case and not its constitutionality, since constitutionality was now a settled matter, regardless of how they had voted on the question when it was presented earlier in the trial.  This provides the basis for Richard Burr's decision who, having voted against the impeachment's constitutionality, nonetheless voted to convict Trump on the merits of the case. 

Turning to McConnell's speech after the trial, McConnell made a fierce statement of condemnation saying essentially that Trump's actions leading up to the insurrection were what caused it to happen. But, he suggested, he did not vote to convict because he felt that would violate the constitution. While I have some sympathy for the argument he made and can see how a strict Originalist would likely have reached that same conclusion, the question of constitutionality was no longer at issue; it was settled by the Senate in its earlier vote. Even if he disagreed with the constitutionality of the impeachment (which he explained he did), he should have been bound by his oath as a juror in the trial to proceed and decide based on the merits. Judging by the unambiguous statements he made on the Senate floor this afternoon, he clearly holds Trump responsible for the insurrection; which can only mean that by not judging based on the merits he has violated the oath he took and thus he should resign.

It's not what he did...

Trump's defenders argue, amongst other things, that what he did doesn't rise to the level of an impeachable offense since it can't be proven beyond a reasonable doubt that his words led to the insurrection (at least now they've admitted that what took place was an insurrection). While most reasonable people, polls show, actually find that hard to swallow, it's not what he did that is really instructive. It's what he didn't do that matters more. While they argue that Trumps might not have seen that his actions could have led to the insurrection and thus he is not to blame, once the insurrection was underway, he can no longer hide behind the "no one could have seen it coming" defense because 'it' was now clearly there and no longer a indeterminable hypothetical. And it was his lack of action (and by some accounts his pleasure in seeing what he had wrought) that is so telling. He took no action to quell the riot although many options were available, both in his executive capacity as commander-in-chief and in his symbolic role as the president sworn to uphold the country's democratic institutions. Watching, unconcerned, from the shore when someone is drowning is tantamount to culpability.  Sometimes in-actions speak louder than words.   

Impeachment, Act II Scene 3 - Calculus

The outcome of the second impeachment of former reality TV host and president Donald Trump is, and has always been, a forgone conclusion.  He will be acquitted thanks to the self-interest and lack of principle of forty-odd GOP senators.  Unless...

It is conceivable that some GOP senators figure out that if they continue with the Trumpification of their party, they may jeopardize the party's long term future and even their own. Those on the moderate side could loose to the Democrats and those in the Trumpiest states could loose to more extreme primary opponents. Almost all would prefer Trump out of the picture, even though they can't say so publicly, as his erratic behavior and unpopularity outside his fevered base remains something they can't control and represents a potential danger to their party's popularity.  

Which leads us to the calculus; if they conclude that enough GOP Senators will vote to convict and so bar Trump from office, his force in the political realm would be diminished and they need not fear political retribution. On the other hand if he's not convicted, a vote in the affirmative would lead to Trump's exacting revenge and the end of their political careers.  So that's their homework assignment; find out where all the GOP votes in the Senate might be and weigh the odds of Trump as a spent force against voting to acquit and having to live with the label of subversive enablers (or in some cases unindicted co-conspirator). 

Their decisions may rest on whether they can find their way back to the door where they checked their consciences and their principles (at least, those that came in with some). Given their behavior over the last few years, I'm not wagering anything that they'll be able to. 

Mr. Sheppard

Mr Sheppard was our milkman. I'm quite surprised that his name came back to me almost instantly after fifty plus years, yet I can't remember the name of someone I met the day before yesterday. Psychologist no doubt will have a good explanation, but this post is about what I do remember, not what I can't. 

For the first ten or so years of my life, milk, vegetables, meat and bread were delivered to the back door. Steyning, where I grew up, was (and still is) a village of about five thousand.  The dairy wasn't on the high street but on Charlton Street (as in Bobby), the narrow road that ran parallel to it. We seldom went there that I recall and I have no recollection of ever being inside. 

Three times a week Mr. Sheppard would arrive in his green and yellow electric powered milk cart, whirring and clanking as it made its rounds. He'd pull up outside the gate sit for a minute doing his paperwork on a clipboard. Then he'd go to the back of the cart, select the bottles he needed for our order that day, put them in his wire milk-bottle basket and make his way to the back door.  

He rang the bell only once a week to settle up. My mother would pay him, in cash, which he'd put into an old leather pouch slung over his shoulder and across his chest. Otherwise, we'd leave the empties in a 2x2 white plastic-coated-wire milk bottle holder outside the back door (the "tradesman's entrance") which he'd collect to take back to the dairy, replacing them with the full ones my mother had ordered. 

Milk bottles in the 1960s were tall and tapered. In the mid 70s they were replaced by the shorter squatter variety in the picture.  At the time the change seemed traumatic, a much loved institution giving way to ugly modernity. Only now do I begin to understand the organizational enormity of switching from one size of bottle to another.      

The milk bottle holder may have been a new-fangled invention because my earliest memories are of the bottles standing free, but with a small red plastic disk (with a small chip in one side) on the top of one of the empty bottles; that was the indicator which my mother would set to let Mr Sheppard know how many bottles we wanted that day. The new wire bottle holder came with a panel on the front and a red plastic pointer to show that day's milk order. I know it was wire because as the plastic coating on the handle aged and chipped, the wire underneath began to rust.  

The bottles were glass, reusable, and sealed with aluminium foil. The color indicated what kind of milk was in the bottle. To open the bottle you simply pushed your thumb down in the center of the foil cap and lifted if off. I think, but I'm not sure, that my mother had some kind of plastic cap she would put onto opened bottles before they went back into the fridge. 

Our usual order was two gold tops and two silver tops. Gold top had more cream (technically, it was milk from Jersey cows) and the big treat was getting to be the first to pour the milk on one's morning's cereal WITHOUT shaking the bottle first so you got all the cream which had floated to the top of the bottle.  

When I was about ten or so, we started getting green-top milk. Green was my favorite color and I'd seen green foil tops on Mr, Shepard's cart, so that's the kind of milk I wanted. Green top was unpasteurized and tasted even creamier than gold top. My parents promised that if, in a blind taste-test, I could tell green-top from gold-top, they would order a bottle of green-top for me; I could and they did, at least for a while. 

As family of three with one dog, a border collie called Patch, we probably drank, collectively, a pint an a half to two pints a day; from breakfast cereal, to a glass of milk with lunch, milk in tea and often a glass dinner for me at dinner. My grandmother, who die when I was about 5, drank stout - Nana's "black milk" as my mother called it.

Mr. Sheppard retired when I was about eight or nine, which would make him about a hundred an ten, so I doubt he's still with us. But he remains an indelible part of my childhood. 

Impeachment, Act II Scene 2 - “Dad, I don’t want to come back.”

On January 6th, Representative Jamie Raskin of Maryland took his daughter Tabitha and his son-in-law to the Capitol to witness the certification of the electoral college votes. Instead of watching the ceremonial announcements of each States' votes, signifying the peaceful transfer of power, all three were held hostage by a violent mob of Trump supporters. 

When Raskin was reunited with his family after the rioters had been (gently) evicted from the building, he assured his daughter that the next time they came to the Capitol things would be different.    

“Dad, I don’t want to come back” was her reply.

What could be a sadder commentary on the current state of American democracy than that? 

Impeachment, Act II Scene 1 - Places, people, places

I didn't listen to any of the testimony today. Intentionally. I watched the insurrection on January 6th; I have listened for months to Trump whipping up his supporters; I know what happened; and I think I know why. And since I'm not a juror in the trial I'm not obligated to listen dutifully to the case for the defense. 

But what I did see was 44 of the 50 Republican senators rendering their verdict that the trial was unconstitutional. Whether or not they believe this or whether they are simply looking to their next elections, the vote guarantees that Trump will escape any consequences for his action (and inaction). None of the 44 who took the side of unconstitutionality will vote to convict; how could they after just saying the Senate has no business hearing the case? 

That mean that the best result the prosecution can hope for is that all the six who voted in favor of constitutionality will also vote to convict on the merits. But that's a best case scenario; more likely is that some (if not all) of the six will take the position that there is no direct line between Trumps actions and those of the insurrectionists. Their vote to proceed with the trial will make them appear to have taken the proceedings seriously without voting on the merits in a way that they worry will enrage Trump supporters and so might hurt them at the polls. It is the prelude to another rather sad day for American democracy. 

Unity does not mean capitulation

Predictably, the right has critiqued Joe Biden and the Democrats for talking about unity and then moving to pass his economic relief package with what is likely to be no Republican votes. Their complaint that its too expensive rings hollow when their administration increased the national debt by $3tn in its four years in office. When the 10 "moderate" GOP senators asked to talk to Biden to negotiate a smaller package it was clear that this was not a serious offer, and really just a stunt to make the GOP appear less intransigent and obstructionist than it really is. 

So no, unity doesn't mean wasting time on un-serious negotiations that were going nowhere, nor does it mean capitulating. And if one needed any more convincing that the GOP move was a public relations exercise, it is that there has been no followup offer from their side; they presented the President with offer so ridiculously below what he was proposing that it would have been difficult for him to entertain it as a serious proposal (which it evidently wasn't); and yet he had the good grace to meet with them for two hours. But true to form, the GOP isn't interested in compromise and presented their low-ball offer as a take-it-or-leave-it deal; which Biden, for obvious reasons, chose to leave.  One real benefit of Biden's 8 years in the VP's job is that he knows only too well the tricks in the GOP playbook. This isn't his first rodeo.      

And while we're on the subject of crass Republican behavior, those like Marco Rubio who purport to belong to the law and order party are all now brushing Trump's misbehavior under the rig and telling us we should be "moving on for the good of the nation". What happens to personal responsibility and holding people to account? The party whose position has been that ones actions cannot be excused by context?  Apparently that only applies to the left; those on the the right get a pass.  

And, Marco, complaining that the impeachment trial isn't creating any good paying jobs; well neither is your spending time on national TV complaining about the impeachment. 

Comeback kid?

Donald Trump is envisioning his second act, according to Politico. “He’s compared it to that time in between seasons of ‘The Apprentice,’ building anticipation and wonderment for what’s to come,” a source is quoted as saying.  

His mood may be similar but his framing may be off-base; at NBC, a second coming would have revolved around the question 'would it make money for the network', and the network's internal politics which, while cut-throat, would likely have been personal and fluid given the relatively small number of players involved.     

In a second bite at the presidency, as well as his large base of supporters, he will run into a potentially vast array of well funded actors lined up to prevent his re-ascendancy. And because they are numerous and have multifaceted interests that happen to coalesce around opposing his second term, they will be harder to manipulate or disarm.     

A different take on conspiracism

"Surely they can't really believe that"? is the question I keep coming back to when thinking about ludicrous MTG and her ilk. The best I've come up with so far is that they actually don't, but pretending they do grants them membership into a club of like-minded people. 

Espousing the believe that space lasers paid for by Jewish financiers started the California wild fires is so wacky that no one with more than an 8th grade education would believe it; but it's the not-so-secret "pass-phrase" that lets you into the club. 

It also serves a another purpose as a carrier for the cultural memes of the group. Using the space laser example, it combines antisemitism, anti-elitism (the 'financiers'), denial of the climate crisis and global warming, and a reminder of California as the Sate they love to hate.  That's some pretty efficient messaging.    

All of which reinforces the dictum to take them seriously (as a threat to democracy), but not literally.

Shame, WSJ

Shamefully, thought perhaps unsurprisingly, the WSJ editorial drew a flagrant false equivalence between comments made by Ilhan Omar and Marjorie Taylor-Greene.  The paper cited this comment from Omar "Israel has hypnotized the world, may Allah awaken the people and help them see the evil doings of Israel" as counter point to Taylor-Greene's assertions, for example, that California wild fires were started by space lasers funded by a a cabal of Jewish fanciers.  

While one my disagree with Omar's depiction of Israel's actions as evil, it is nonetheless one interpretation of verifiable facts on the ground.  Taylor-Greene's conspiracy theory on the other hand is not an interpretation of facts, it is a ludicrous, deranged fantasy, completely disconnected from the real world of facts.  To suggest they are remotely equivalent is absurd.