Judge Dismisses Document Case

 It is very likely that a new term will enter the American lexicon. Lawyers, journalists and historians will describe a legal case as having been " Cannonized", meaning that an activist judge, acting with blatant bias and utter incompetence, has made a ruling which ignores binding precedent and defies reason. Judge Aileen Cannon's dismissal of the document case is consistent with her handling of the matter from its outset, embracing delay, unconventional techniques and barely concealed favoritism. One can only surmise that Judge Cannon is courting a high level cabinet position or an appointment to the Supreme Court should her preferred candidate recapture the presidency. 

The Supreme Court Bump Stock Decision

 

> Democrats should run an ad which shows a machine gun being fired and a voice over which says: “This is a machine gun which can kill multiple people in seconds. It has been banned by federal law for decades “. The ad should then show an automatic rifle fitted with a bump stock being fired and a voice over which says: “ This is a rifle fitted with a bump stock. It has been used to kill scores of Americans within seconds and was banned by an act of Congress. The conservative majority of the Supreme Court has struck down that law because, in their inexpert opinion, Congress did not intend to ban a weapon which operates in this fashion “.
> Hopefully, the electorate will believe its own eyes and conclude that it must vote to overrule the Supreme Court.

Alito's Recorded Comments

 

We know from his judicial opinions, his lectures and his tolerance for the flag-flying practices of his politically committed spouse, that Supreme Court Justice Samuel Alito places a higher value on the protection of what he perceives to be religious liberty than any other constitutional right. Indeed, he was recorded saying that he sees his role as helping to move the nation to a greater sense of godliness. This confession of religious bias, which blatantly conflicts with this country’s historical commitment to the doctrine of separation of church and state, also violates the duty imposed on every judge to be fair and impartial when ruling upon the issues before him.
And where was Justice Alito’s godliness when he misled senators at his confirmation hearing, when he accepted extravagant gifts from persons with an interest in cases before him and when he abandoned judicial restraint to make precedent-shattering decisions that deprived Americans of constitutionally protected rights.
While the Justice’s invocation of religious motivation may be more sincere than the God-like imagery with which a certain presidential candidate cloaks himself it is no less dangerous to the preservation of our democracy.

GOP Attacks On Garland and Fauci

 In the past few days Republican members of House committees disgraced themselves and their high office by making false and scandalous statements in the guise of questioning Attorney General Merrick Garland and Dr. Anthony Fauci. These venerable public servants refused to be intimidated and gave as good as they got. While it is necessary and appropriate to take legal action against those who lie to Congress, it would seem only fair and just to hold accountable lying by Congress.

The Sins of the Educated Class

 David Brooks gets it so wrong that it is hard to know where to begin the criticism of his piece. First, it is wrong to equate having a higher education with elitism. Sure there are universities deemed elite but most college educated Americans get their degrees from “lesser” institutions and the good news is that far more people are getting that education than in the past. A majority attain that goal not by dint of parental wealth or influence but by hard work and thirst for self betterment.

The challenge is not how educated progressives can reconcile their outlook with their status but how to convince the working class, from which many of them come, that they are allies committed to making a better society for all. It is bewildering that the Republican Party, which primarily represents the interests of the  wealthy and anti labor segments of society, has somehow persuaded a large percentage of the working class that it is its champion and that a Donald Trump has the interests of workers at heart.

Roberts Won't Compel Alito To Recuse

 Chief Justice John G. Roberts Jr. is fond of describing the role of Supreme Court justices as being that of umpires calling balls and strikes. What has become apparent over the years is that the strike zone used by these “umpires “ depends upon who is in the batter’s box. When an issue is dear to conservative justices they abandon their professed commitment to narrow rulings and embrace an activism they often claim to abhor, thus expanding the strike zone. When a progressive cause is before them they revert to the originalist approach and shrink the zone. These fluctuating calls are largely responsible for the loss of public confidence in the Court’s impartiality.  Even more corrosive to the Court’s reputation and legitimacy has been the acceptance by some justices of extraordinary largesse from wealthy “friends “ who happen to have matters pending before the Court, generous gifts which the justices failed to disclose. But the final and fatal miscall that threatens to wreck what may be left of the Court’s standing as fair arbiters is the refusal of Justices Alito and Thomas to recuse themselves from cases that raise questions about which they or their spouses have demonstrated strong predispositions and the failure of the Chief Justice to enforce a recently adopted code of ethics intended to prevent justices from acting on cases where their participation creates a substantial appearance of impropriety. This time it is the umpire-in-chief who has struck out.

Senate Needs to Stop Antisemitism Awareness Act

 

The Antisemitism Awareness Act, passed by the House and pending in the Senate, would withhold funding from Universities that permit or facilitate on their campuses antisemitic activities as defined in the bill. Michelle Goldberg is greatly concerned that the bill, if enacted into law, would empower the federal government to stifle free speech. Certainly, in a society that prizes and has enshrined in its constitution protections for free expression of ideas and beliefs, the right to engage in hateful, offensive and even potentially harmful speech must be respected. However, there is no right to insist that the government fund entities that permit such conduct. The focus here should be on how the bill defines antisemitism. The definition currently utilized does seem overly broad in that it appears to equate criticism of Israel’s government and policies with antisemitism, criticism that squarely falls within the ambit of protected speech. If the definition was narrowed to encompass activities that amounted to discrimination, violence and threats of violence, activities that would be universally condemned, the proposed law should pass constitutional muster and gain greater acceptance.

Antisemitism

 The calumny, that the Jews (thought of as a racial entity from the beginning of time to the present) killed Jesus Christ, is again a topic of controversy. Though that incendiary concept has been proven historically false and, in recent times, has been rejected by the Christian Church and the Papacy, it has persisted through the centuries and has resurfaced now during the debate over the pending legislation condemning antisemitism and outlawing its teachings in American schools.

Assuming, arguendo , that more than 2,000 years ago the people who crucified the man who later became known as Christ, can be identified as Jews, the question presented is why that act has been so viciously condemned and why the descendants of those people have been vilified, rejected and slaughtered because of it.
Putting aside the obvious truth, that it is wrong to punish a person, let alone an entire group, for the “sins “ of a few long ago forebears, an examination of the beliefs surrounding the crucifixion call into question why that act and its perpetrators are blameworthy.
If one accepts the Christian belief that Christ appeared on Earth for the purpose of dying to expiate the sins of Mankind, than those who enabled him to fulfill his mission were instruments of God acting in accordance with a predetermined plan. Indeed, Christ himself is reported to have foretold the happening and asked for the forgiveness of its enactors.
Furthermore , Christians believe that Christ is the Lord and a god cannot die. That he did not truly die is evidenced by his reappearance just days after the event. Thus, one must conclude that Jews did not kill Christ; no one did.

The Supreme Court and Presidential Immunity

 Incredibly, though perhaps not surprisingly, it is patently clear that the conservative justices on the Supreme Court, based upon their questioning of counsel and statements made by them during argument, are breaking ground for the demise of our democracy.

These justices have left no doubt that they disagree  with the holding of the lower courts and will find Donald Trump enjoys at least some degree of immunity from criminal prosecution. Further, it is apparent that they will send the case back to the trial court with instructions to make findings about whether the charges brought by Special Counsel against Mr. Trump involved official or private acts. This will insure that a trial of the case cannot be held before the November election.
What is surprising is the painfully inadequate response of the liberal justices and the missed opportunities for Special Counsel to present his case with greater cogency and passion.
The consequences of this impending miscarriage of justice is to make more likely the return to power of Donald Trump who will then use the opportunity to complete his destruction of our democracy and the rule of law.

Supreme Court Argument re Obstruction

 

If the conservative majority of the Supreme Court is true to its commitment to textualism it must uphold the convictions of those who assaulted Congress on January 6 for the purpose of obstructing the official proceeding being held that day to declare the winner of the 2020 presidential election. The statute the court has been asked to interpret, by its explicit terms, makes  the conduct of the accused unlawful. And yet the tenor of the questions posed at the argument of the case suggest that the conservative justices are likely to so limit the scope of the obstruction statute as to make it inapplicable to the physical interference which prevented Congress from performing its duty. Compounding that inexplicable departure from their usual approach to statutory interpretation, is the fact that Justice Clarence Thomas, whose wife supported the attackers of the Capitol, and who therefore should have recused himself, seems to be leading the charge to absolve the obstructionists.
If the Court doesn’t get this right there is little hope that it will rule appropriately after it hears argument next week on the fraudulent claim of presidential immunity being asserted by Donald Trump.
The obvious partisan tenor of the Court’s conservative majority has already done grave damage to the Court’s reputation for integrity. Any further rulings of a similar nature will put that perception beyond redemption.

The Biden Administration's Low Approval Ratings

 One of the perplexing questions of this Age is why so many Americans disapprove of President Joseph Biden notwithstanding the many commendable accomplishments of his administration, accomplishments achieved in the face of an inflexible, politically motivated Republican majority in the House and despite the indisputably strong economy it has restored.

Part of the answer is the growing strength of White nationalism and the racist resentment it has unleashed. That rancor has been stoked and amplified by Donald Trump, a right-wing media that willfully distorts facts and politicians who have surrendered ethical standards in their quest for power.
However, I respectfully submit that the primary reason for Biden’s low approval is a function of optics. The President projects an image of dotage, stumbling in both words and steps. Even admirers of his good judgment, experience and effectiveness are given to wince at his appearance. While the impact of these visuals may be unfair it is understandable. Americans have come to admire the projection of vitality and youthfulness in their leaders. Adding to this disenchantment has been a perceived lack of gravitas exhibited by Vice President Kamala Harris, though this perception has recently begun to change as she forcefully defends the rights of women to appropriate healthcare and bodily autonomy.
If ever there was a need to delve beneath surface appearance and judge the substance of competing candidates, now is that time. America cannot afford to elevate charisma above character.

Alliances on the Supreme Court

 Former Justice Stephen Breyer paints a pretty picture of how well the justices personally relate to one another even when they strongly disagree on the law. His essay ignores certain historical anomalies and hardly draws a complete portrait.

We know that there were times in the past when religious bigotry infected relationships between certain justices. And while Justice Breyer’s assertion, that the justices at their conferences never raise their voices in anger nor make snide or personal remarks may be accurate, it is not uncommon for dissenting justices to harshly criticize or even vilify a colleague in their written (and public) opinions.
Given the recent revelations about the misconduct and corrupt practices of some of the justices, and the obvious political bent of their decisions which have eroded public trust, perhaps it is time for justices to call out their offending colleagues and hold them to account since no one else seems to have the authority or gumption to do so.

Trump Hush Money Trial Delayed

           The issue of the moment in the world of Trump litigation; why did the federal prosecutors in the                 Southern District of New York wait until now to deliver over 100,000 pages of documents to                      Trump’s lawyers, thereby causing the hush money trial to be delayed? My reading of the matter follows.

As a former Assistant District Attorney in New York County, I know from personal experience that historically there has been a state of mistrust, competition and tension between the offices of the SDNY and Manhattan D.A. When, over a year ago, D.A. Alvin Bragg requested documents relevant to this case, the SDNY felt neither the inclination nor obligation to comply. When, two months ago, Trump’s lawyers subpoenaed the same documents, the federal prosecutors realized that a failure to turn over potentially exculpatory evidence to a criminal defendant, especially one of such high profile, would expose their office to widespread condemnation and would threaten the validity of any conviction won by the D.A. they, belatedly and deliberately, began to turn over the documents.

GOP Response to State of the Union Address

 

Having heard the horrific story of sex trafficking recited by Sen. Katie Britt, as the featured point of the Republican response to President Biden’s State of the Union Address, I will never, ever vote for George W. Bush to again be president of the United States.

Subway Security Plan Faces Pushback

 The decision by Governor Hochul, to post the National Guard in subways, is controversial. Whatever one’s view of this deployment, it should be a no-brainer that the guardsmen and women should leave their assault rifles back in the barracks.These soldiers are not responding to a terrorist threat. Side arms and tasers are far more useful (and far less intimidating to the public) to prevent misconduct by potential violent offenders and emotionally unstable individuals.

Better yet, let the military attend to military matters and, instead, provide an increased police presence to preserve the peace and calm public fears in the subway.

Supreme Court Keeps Trump On Ballot

 

The holding by the Supreme Court, that Congress and not the states has the power to keep a candidate for federal office off the ballot, and that that power can only be exercised pursuant to legislation to be enacted by Congress, means that, as the law now stands, the only remedy barring an oath breaking insurrectionist from running for president is impeachment followed by conviction by a two-thirds vote of the Senate.
That result was expected and not particularly controversial. The real test of the Court’s integrity and independence will come next month when it hears argument and, ultimately, must decide whether a former president has complete immunity from prosecution for engaging in criminal conduct while in office. By unduly delaying resolution of this issue the Court has already injudiciously advantaged Donald Trump, possibly insulating him from ever being held accountable for his unlawful attempt to remain in office. Still, how the Court rules will demonstrate whether the majority of justices are jurists or politicians in robes.

Supreme Court to Rule on Trump's Immunity Claim

 Now that the Supreme Court has, intentionally or inadvertently, aligned with those seeking to delay the trial of Donald Trump, on charges stemming from the January 6th insurrection,  until after the election, it is time to consider other potential consequences.

If Trump wins the election he will either direct his attorney-general to dismiss the case or attempt to pardon himself. Should Trump adopt the first alternative, I believe the judge before whom the case is pending has the authority, indeed, the duty to reject such a result as contrary to the public interest. Rule 48 of the Federal Rules of Criminal Procedure provides that a pending criminal case may be dismissed by the prosecutor “ on leave of the court “. Case law makes it clear that the judge should deny such a motion if dismissing the case would be unjust or is not in the public interest. Clearly, a self-directed dismissal of the charges against Trump would be a manifest injustice.
Whether Trump can pardon himself raises legal issues which remain to be resolved. Can we be confident that this Supreme Court will not sanction such an undemocratic exercise of self-interest?

The Political Failure of Bidenomics

 Democrats, David Brooks tells us, have lost their hold on the non-college educated working class despite the economic gains made by that group under President Biden’s favorable programs. The reasons he offers for this defection is a sense of non-recognition and adverse moral judgments by college educated elites who regard the less-educated as socially backward.  Those without college degrees are more likely to be engaged with “ flag, family and faith “ than their better educated counterparts who tend to be progressive and concerned with social issues.So the cause of the political realignment is cultural not economic.

The troubling conclusion to be drawn from this analysis is that religion is failing in its fundamental mission to promote love, tolerance and morality. How, otherwise, can persons of greater faith be embracing politicians who demonstrate daily that they have no regard for truth, empathy or human decency.

Trump's Sneakers

 Donald Trump has had many personae; founder of a fake university, purveyor of putrid steaks, false foundation head, failed casino owner, sexual assailant and racist landlord to name a few. He is, at bottom, a classic con man, a modern-day snake oil salesman. His latest flimflam, a day after being pilloried in a New York court case for misrepresentations of mega proportion, he has launched a sale of Trump sneakers for $399 per pair. It will not be surprising if his hypnotized horde of followers continue to shell out hard earned bucks to this Pied Piper of predatory practices.

The Cure for What Ails Our Democracy

 

 David Brooks argues that the solution for the political dysfunction that currently plagues our society is for the citizenry to embrace pluralism by balancing goals that are competing or in tension and, thus, arrive at compromises which advance the greater good. Mr. Brooks’ essay is erudite and thoughtful but, at least in one respect, oversimplifies the problem. Mr. Brooks declares that we are not engaged in a struggle of good versus evil, unlike World War II and the Civil War, but rather in a conflict between liberal values and Trumpian populism and that each view has legitimate concerns. If that was an accurate description of the situation a solution could be achieved. Unfortunately, there is a significant proportion of the American population that has been infected by the contagion of hate spread by Donald Trump. That faction, like Mr. Trump, is driven by racial, religious , sexist and gender intolerance and is not open to compromise or accommodation. In that respect, we are engaged in a war of good versus evil and, heaven help the nation, there does not seem to be a reasonable remedy.

Classified Documents Report

 

Shamefully, Special Counsel Robert Hur has put a political cast on his report finding that criminal charges against President Biden are not warranted for his mishandling of classified documents. Taking a page from one of his predecessors, Kenneth Starr, who gratuitously included salacious details of President Bill Clinton’s conduct in his report on an unrelated matter, Special Counsel Hur handed Donald Trump political fodder by describing President Biden as an old man with memory problems. That comment, though arguably relevant to his decision not to recommend criminal prosecution, was of minuscule significance compared to the other circumstances which compelled his conclusion not to bring criminal charges. Surely, Mr. Hur knew that the political consequences of including that description of the president far outweighed its legal relevance and is likely to impact the coming election.

Border War At The Supreme Court

 Even as Donald Trump’s tyrannical agenda threatens the foundation of our democracy, the conservative, more accurately the radical majority of the Supreme Court is mounting an equally destructive assault on our basic form of government.

The United States, for centuries, has been the world’s exemplar of a democratic republic insured by a written constitution. Though comprised of individual states, the nation functions as a cohesive whole by application of the doctrine of federalism which makes the Constitution and the laws passed by Congress the supreme law of the land.
Now, the majority of Supreme Court justices seem poised to discard that time tested  and historically honored form of government and, instead, empower individual states to choose their own course, unencumbered by constitutional restraints and in defiance of federal law. If those justices achieve that end, the nation will disintegrate into 50 disparate and alienated jurisdictions, individual liberties will be left to the mercy of hostile local majorities and the dream of America will dissolve in chaos.

A Looming Clash Of Two Presidents

 

Peter Baker is a marvelous political commentator and his analysis of the upcoming presidential election is spot on. America, indeed, has become so divided on issues as fundamental as race, religion, economics, identity and culture as to virtually constitute two separate and hostile nations.
However, I must respectfully disagree with Mr. Baker’s description of Donald Trump’s view, that he leads an America where “ the undeserving are favored over hard-working everyday people “.
Mr. Trump holds no such view; in fact he has no views or convictions and couldn’t care less about the welfare of hard-working everyday people. Truth be told, if Trump believes in anything he would favor increasing the wealth of the undeserving as his tax initiatives have already demonstrated. We need to be accurate when describing what Donald Trump stands for.

Donald Trump and the 14th Amendment

 In a letter to The NY Times, retired federal bankruptcy judge Mark Wallace pronounces flawed the legal analysis of the 14th Amendment controversy by David French in a recent Op-Ed article. According to Judge Wallace the amendment does not prohibit an unqualified person from running for office, only holding office. Therefore, he argues, the issue is not ripe for judicial review unless and until Donald Trump wins the election. Respectfully, it is Judge Wallace’s reasoning that is flawed.When someone is deemed constitutionally unqualified to hold office it is implicit in that prohibition that such a person may not stand for office. Otherwise the electorate is presented with a false choice, a costly campaign must be nullified and the likelihood of a violent response by the supporters ofa winning candidate who is denied office would be exponentially increased.