don’t start cheering yet (go ahead, cheer)

I can’t really be happy about today’s indictment against Paul Manafort and Richard Gates. While I’m glad the system is working, it’s really a rather sad day for our nation.

Let me also say this. Manafort and Gates have only been indicted. That doesn’t mean they’re guilty. I’m a criminal defense guy, and I believe passionately in the notion that the accused MUST be considered innocent until proven guilty beyond a reasonable doubt. So right now, Paul Manafort has to be considered to be an innocent man.

That said, the indictment appears to be pretty solid. It includes one count of conspiracy against the United States, one count of conspiracy to launder money, seven counts of failure to file reports of foreign bank and financial accounts, one count of being an unregistered agent of a foreign principle, one count of making false and misleading FARA (Foreign Agent Registration Act) statements, and one count of making false statements.

Paul Manafort (Photographer: Victor J. Blue}

Essentially, this is a money laundering indictment. It’s grounded in monies coming from foreign sources having powerful political connections. It’s a well-constructed foundation for the accusation of collusion. And at the heel of the hunt, that’s what this is all about. It’s about Russia attempting (and, it seems clear, succeeding) to influence the outcome of the 2016 presidential election in favor of Donald J. Trump.

This is just the first step in building that case. Robert Mueller is a career prosecutor with a reputation of being both dogged and scrupulously honest (which is wonderful in a democratic system, and a terrifying combination to criminal defense guys like me). He didn’t put together a team of a dozen and a half seasoned prosecutors just to indict and prosecute a couple of guys like Manafort and Gates.

But here’s why this is a sad day: like all criminal prosecutions, this is the system attempting to correct (or at least ameliorate) something that already happened. This indictment is a reminder that a massive crime was (and yeah, I need to include this unfortunate term) allegedly perpetrated against the citizenry of the United States. It’s also a reminder that the citizenry were complicit in their own victimization. And it’s a reminder that the offense is still taking place.

There’s still a lot of hard and ugly work ahead of us. Is it too early to cheer? Yes. But hey, cheer anyway. Cheer because it’s a good start and we’ve had so little to cheer about lately.

ADDENDUM (for the folks asking about Comrade Trump firing Mueller): The law is pretty clear about this — and remember, this law was crafted in relation to the Kenneth Starr investigation of President Bill Clinton. The special counsel can only “be disciplined or removed from office only by the personal action of the Attorney General.” In this case, it would be the Deputy Attorney General since the AG has recused himself. The law also states the special prosecutor can only be removed for “misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies.”

So no, Trump can’t just decide to fire Mueller. He can, though, order the DAG to fire him. If the DAG refuses, Trump can fire the DAG, then appoint a new DAG who would follow the president’s order. As I’ve stated elsewhere, that ought to be considered highly improbable — but this is the Trump administration in which the concept of improbability is pretty fluid.

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semi-loyal opposition

I’m seeing a LOT of folks heaping scorn and contempt on Senator Jeff Flake today (and, to a lesser extent, Sen. Bob Corker). As you almost certainly know, both of those traditional Republican conservatives made a show yesterday of publicly spanking Comrade Trump. The scorn hasn’t been for the spanking — most folks appreciated that. The scorn seems to be because Flake and Corker then voted to repeal a rule repealed a Consumer Financial Protection Bureau rule that made it easier for people to sue banks and credit card companies.

That, of course, is a despicable vote. But I don’t understand why anybody was surprised by their votes. Did people think that by condemning Trump, Flake and Corker would suddenly become progressive Democrats? Did they think Flake and Corker had some sort of ‘Come to Jeebus’ moment? That they would see the light and abandon all their previously held political positions?

Sen. Bob Corker

No, those guys are still the same conservative asshats they’ve always been. They both still support a LOT of what Trump supports. The only difference is…well, there are two differences. First, they realize that conservative Republicans are going the way of moderate Republicans. There is no longer a place left for principled conservatives in the GOP. There are only varied grades of extremists, identified by how much they love babby Jeebus or by how much they hate liberals. Oh, there’s still a place for traditional unprincipled conservatives; they can be measured by how much corporate dick they’re willing to suck.

Here’s the second difference. Principled conservative Republicans like Flake and Corker (and yes, I think they really are principled; their principles are radically different from mine — and I think their principles are wrongheaded — but they still have principles) can see that Trumpism is not only destroying their political party, but also a clear threat to what we laughably call representative democracy.

Sen. Jeff Flake

Trump, unlike every previous president, doesn’t seem to believe in the concept of a loyal opposition. He only believes there is loyalty and there is opposition — and even his notion of ‘loyalty’ is grounded in a businessman’s perspective, in which loyalty is only operative when it benefits him.

The fact that both Flake and Corker have announced they’re not running for re-election doesn’t make their comments about Comrade Trump any less legitimate. Waiting until you’re quitting to voice your objections to the president may be an act of political cowardice, but it’s also a clear demonstration of just how far into the much the entire GOP has fallen. These two guys lack the fortitude to stay in their party and fight for it, but they’re probably the bravest the modern Republican party has to offer today. That’s pretty fucking sad.

 

no, he doesn’t get credit for trying

I’m paraphrasing here, but this is basically what I heard today. “Trump can’t catch a break. He tried to do the right thing, calling the families [of the four soldiers in the 3rd Special Forces Group who were killed in Niger]. He’s not good at it, but at least he tried. You have to give him credit for that.”

And you know what? I very nearly did.

Let me start by talking about something that happened to my family a million years ago. When I was 15 years old, I came home from school to find two Marines standing at the door to my house. My oldest brother was a Marine serving in a Recon unit in Vietnam at the time. I went numb when I saw those Marines. I was about half a block from home when I saw them; I don’t remember walking the rest of the way. One of Marines said something like, “Son, we need to talk to your mother, but she won’t come to the door.”

I could see her through the window, sitting at the kitchen table, refusing to even look at the door. I’ve no idea how long the Marines had been standing there, waiting. I opened the door and invited them in. They told us my brother had been shot in the leg and in the back, that he’d been evacuated to a hospital ship. My mother asked if he’d be okay. All they could say was that his prognosis was guarded. I assumed that meant he was probably going to die.

One of the Marines made coffee. They sat down at the kitchen table, walked us through the likely process of my brother’s med-evac, referring to him by name. “Roger would have been stabilized and treated for pain at the site, his condition monitored en route to the hospital ship,” and so on. They stayed with us until my father got home. Then they went through the whole process again.

My brother was lucky; he lived, (it turned out he hadn’t been shot in the back at all). Nine other Marines and a Navy corpsman were killed on that same day in Quang Nam province. I’ll never forget how gut-wrenching it was to see those two Marines at the door. I’ll never forget how patient they were, and how supportive, and how quiet and respectful and calm.

I don’t normally talk about this stuff, but this is the basis on which I very nearly gave Comrade Trump credit for trying. I know what it’s like to get bad news. Having been a medic in the military, I also know what it’s like to deliver that news. It’s not easy. So a part of me actually wanted to give Trump credit for making those calls.

Yes, after the four soldiers were killed in Niger, he failed to even try to contact the families for almost two weeks. In fact, he hadn’t said anything at all in public about the four deaths — and I suspect he wouldn’t have said anything about them if he hadn’t been asked about it in public by a reporter. And yes, when confronted with his failure, Trump tried to claim other presidents had done less than he’d done. Which was a lie. But he said he would call the families of the soldiers. And he did. There’s that.

Before he called them, Trump apparently consulted Gen. John Kelly, his Chief of Staff, to find out what he should say. According to Kelly, he told Trump those four soldiers knew what they’d signed up for — they knew there was a chance they’d get killed or wounded in the line of duty. To Kelly (and most folks with military experience) that knowledge magnifies the level of commitment and the weight of the sacrifice troops are prepared to make. They knew the risks, but were willing to undertake them in the service of their country. There’s a terrible beauty in that.

From what we know of the conversation Trump had with the family of Sgt. La David Johnson, he apparently attempted to make that point, but did it in such a clumsy way as to offend the family. It’s been reported that he never referred to Sgt. Johnson by name, just calling him “your guy”. Trump is also alleged to have said, “He knew what he was signing up for, but I guess it hurts anyway.”

Even though he fucked it up, at that point I was still willing to reluctantly give Trump credit for trying. Then the family spoke out about the conversation, saying he’d been insensitive.

Here’s another thing that happened a moderately long time ago. President George W. Bush — the president I disliked the most until Comrade Trump slouched into office — had visited a military hospital to speak with troops wounded in the war he’d started. One of the families of the wounded was present, and they voiced their anger and resentment about the war and about Bush. Bush just stood there, facing the family, and took it. As the Commander-in-Chief, Bush understood his duty — to the family, to the soldier, to the America public — was to quietly accept the family’s anger, because he was ultimately responsible for that soldier’s wounds and that family’s distress. I passionately disliked Bush, but I respected him at that moment.

Had Trump done the same — had he followed Bush’s example, had he just quietly accepted the Johnson family’s response — I’d have given him credit for trying to do the right thing. Even though he’d been sort of forced into and even though he’d bungled it badly, I’d have given him credit for trying. If only he’d handled it like an adult.

But he didn’t. Instead, Trump lashed out. Which is what he does when he’s criticized. He lashed out and he lied about what took place– just as he’s done against other Gold Star families who’ve publicly criticized him.

So no, I don’t give Trump credit for trying. I might have given him credit; I very nearly did. But in the end Comrade Trump again confirmed to me that he’s a despicable poltroon, with no native sense of decency, and no regard for the truth, and no real respect for the military.

Those two Marines who came to deliver the awful news to my family, they didn’t know my brother. But they knew his name. They knew other Marines just like him. They knew other families like ours. They treated us with patience and courtesy and dignity and deep compassion.

Those qualities seem to be completely absent in the president.

 

allowed — thoughts after the planned parenthood book sale

There were a couple of guys standing outside the Planned Parenthood book sale yesterday, talking together. My impression was they didn’t really know each other — one guy was older, had that sort of liberal artsy-intellectual look I associate with docents at museums; the other was maybe in his late 20s, comfortably scruffy, zippered hoodie over a Raygun t-shirt. Both guys were white, probably considered themselves to be progressive. They were just standing there, hands in pockets, idly talking, probably waiting for somebody who was inside buying books.

I’d already bought my books and was heading back to the car. As I passed them, I smiled and nodded. I’m also a white guy, I think of myself as progressive, and on the docent-scruffy metric I probably fall somewhere closer to scruffy. I suppose these guys could be considered part of my tribe. After I passed them I heard the younger guy say something like, “Oh, well yeah, I think women should be allowed to decide for themselves.”

And I kept walking. I shouldn’t have. I should have stopped and turned and spoken up. I should have stopped and said, “Allowed? Did you just say allowed?”

Yesterday, before I left for the PP book sale, I made a comment on a friend’s Facebook post. The post was about sexual harassment. I don’t recall exactly what I said, but it was something to this effect: words matter. Language is critically important in shaping the way we perceive and understand the world. A few hours later, I had a chance to put theory into practice — and I didn’t do it.

Allowed. See, that’s the thing. That younger guy probably thinks he’s being — I don’t know. Supportive? I’m sure, if confronted, he’d have back-pedaled furiously. I’m sure he would have said — and said with sincerity — that he didn’t really mean ‘allowed’. In his defense, ‘should be allowed’ is better than ‘should NOT be allowed’, but only in the sense that diluted poison is better than concentrated poison. ‘Allowed’ is still poison.

I’ve avoided writing about abortion. Partly, I admit, because I don’t want to deal with the tiresome ‘abortion is murder’ crowd. But I’ve avoided it mainly for another reason: I can’t write about abortion without indulging in what will at first appear to be a tangent. This is the tangent.

I was a medic in the military. In my very first duty station I was assigned to a general medicine ward of a large medical center. The wing that housed the ward also housed the hospital’s medical waste incinerator. Medical waste has to be incinerated. If, say, a person has a foot amputated, you can’t just chuck the foot into a dumpster; you burn it. Somebody has to be in charge of the incinerator. Somebody has to accept the medical waste, check to be sure it’s what it’s supposed to be, log it, put it in the incinerator, then push the button.

I’m sure you can see where this is going. For about six months, one of my duties was to be the incinerator monitor. An aborted fetus, in that state (maybe in all states, I don’t know), was technically considered medical waste. My job required me to inspect the medical waste, then incinerate it.

But words matter, right? I didn’t incinerate medical waste; I incinerated amputated limbs and tumors and appendixes and chunks of ulcerated intestine and occasionally aborted fetuses. It was…unpleasant. The image of an aborted fetus in a blue plastic tub is one of dozens of images I wish weren’t banging around in my brain. I was 19 years old.

That’s when my opinions on abortion were formed, and they haven’t changed in the decades since. Here’s my opinion: 1) abortion is a legitimate and legal medical procedure, 2) it’s not a procedure anybody would undertake lightly, 3) it’s a procedure that should be rare, 4) in order to make it rare, we need to encourage folks to plan for pregnancy, 5) which also means folks should plan to avoid pregnancy, 6) which means we need to make birth control easy and affordable, and 7) these are decisions that can only be made by the women involved with consultation with their doctors and perhaps their religious leaders.

I don’t like abortion. But I recognize that sometimes it’s necessary. I don’t like abortion, but I completely support a woman’s right to choose to terminate an unwanted pregnancy. I don’t like abortion, and that’s exactly why I support Planned Parenthood. I don’t like abortion, but I recognize that everybody has the right to control over their bodies.

I don’t like abortion. I don’t like it. But the term ‘allow’ doesn’t belong in the discussion. 

tsunami tweets

I have a long-ignored Twitter account. Between July of 2011 and August of 2013 I made 121 tweets; that’s an average of about five tweets a month, which suggests I basically ignored Twitter even before I ignored Twitter.

But with the election of Comrade Trump, I find I’m checking Twitter on a semi-regular basis, just to confirm that Trump actually made the tweets I see reported in the news. They’re often so juvenile, so bone-ignorant, so chaotically destructive that it seems unlikely they’d be the work of the President of These United States. I’d call it ‘inconceivable’ but Vizzini ruined that term for everybody. Still, time after time, the tweets are actually there. They’re actually real.

Okay, bear with me a moment. I’m about to go on a bit of a tangent. Or maybe more than a bit. But I promise, I’ll come back to Trump and Twitter.

On the 9th of July in the year 869 (or, to use the Nipponese calendar, the 26th day of 5th month, 11th year of Jōgan) a massive earthquake took place off the coast of Honshu, followed by a devastating tsunami. A history of Japan written about three decades later describes the event:

[A] large earthquake occurred in Mutsu province with some strange light in the sky. People shouted and cried, lay down and could not stand up. Some were killed by the collapsed houses, others by the landslides. Horses and cattle got surprised, madly rushed around and injured the others. Enormous buildings, warehouses, gates and walls were destroyed. Then the sea began roaring like a big thunderstorm. The sea surface suddenly rose up and the huge waves attacked the land. They raged like nightmares.

In the aftermath of the destruction, coastal communities began to erect ‘tsunami stones’ marking the furthest extent of the inundation. The stones served three purposes; they were historical markers, they were memorials to the dead, and they were a warning to future generations. The stones often included messages or advice:

Do not build your homes below this point.

Earthquake is an omen of tsunami. Watch out for at least one hour. When it comes, rush away to higher places. Never reside on submerged land again.

Hundreds of these stones were carved and set up along the coast; a lot of them still remain. But over time people grew accustomed to the stones and ignored the warnings. By 2011 a lot of communities could be found below the 869 inundation line. And as you know, in 2011 an earthquake of a similar magnitude struck off the same coast of Japan, creating an equally devastating tsunami. Nearly 16,000 people were killed, and another 2500 remain unaccounted for.

Not surprisingly, the towns and villages that heeded the old tsunami stones remained largely intact. In fact, the tsunami actually stopped around 300 feet below the tsunami stone in the village of Aneyoshi.

Right, this is where we return to Trump and Twitter. I think we can view Comrade Trump’s tweets as a form of tsunami stone. They comprise a historical record of his thoughts and behavior. In the future I hope they’ll serve as a memorial to the social and environmental policies the Trump administration are in the process of destroying. And I hope they serve as a warning, both to us in the next election and to future generations of voters.

This administration is an unfolding, ongoing disaster. It’s going to get worse before it gets better. Even though he’s already a weakened president, he’s still capable of — and intent on creating — a great deal of destruction. Civil liberties, race relations, the economy, foreign policy, the environment, the sweep of destruction caused by the Trump administration is deep and wide.

We need to establish our own tsunami stones, which include Trump’s tweets. We need to establish the inundation line.This is how bad it got. This is how much of our society was damaged or destroyed. People shouted and cried, lay down and could not stand up. Huge waves attacked the land. They raged like nightmares. Do not build your houses below this point. Never reside on submerged land again.

 

 

bullshit with icing

I have a friend — an artist (by which I mean an actual, no-shit, serious artist who not only makes art, but thinks about art and the nature of art and what is meant when we use the term ‘art’) — who recently said he wasn’t sure how he felt about the whole Masterpiece Cakeshop situation. To which I have two responses.

First, what the fuck does that even mean? How can you not know how you feel about something? I can totally understand having mixed feelings. I can understand having contradictory feelings. But surely it’s pretty obvious how you feel about any given thing at any given moment because you’re actually in the process of feeling it.

Second, stop over-thinking the Masterpiece Cakeshop situation. Which probably leads a lot of folks to this question: what the hell is the Masterpiece Cakeshop situation? It’s your basic situation in which a Christian doesn’t want to bake a wedding cake for a same-sex couple. There’s a good chance you already think this crap has already been settled, and you’d be mostly right. The law is pretty clear. If you’re providing goods or a service to the public for commercial reasons, then you have to provide those goods and that service to ALL the public. Even if you don’t like or approve of them.

If you run a rental agency, you can’t refuse to rent a folding table to a Muslim just because you hate Muslims. If you run a landscaping business, you can’t refuse to landscape the lawn of a Thai family just because you dislike Asians. And if you bake cakes for a living, you can’t refuse to bake a cake for a same-sex couple just because you think homosexuality is evil.

A baker can refuse to bake a cake if the customer is requesting a personally objectionable decoration. You can refuse to bake cake in the shape of a penis. You can refuse to decorate a cake with I ♣ My Wife. You can probably refuse to bake and decorate a cake if the customer behaves like an asshole. But you can’t refuse to bake a cake simply because you object to the customer’s race, gender, marital status, religion, and all that.

Jack Phillips, cake artist

But here’s why the Masterpiece Cakes situation is a situation — and why my artist friend and his feelings are so confused. A baker named Jack Phillips, who owns a bakery called Masterpiece Cakeshop, refused, for religious reasons, to bake a custom wedding cake for a same-sex couple. He also refuses for religious reasons to make cakes that celebrate Halloween or a divorce, and he won’t bake a cake that includes alcohol. What makes this situation a situation, though, is that Phillips is NOT claiming he won’t bake a wedding cake for a same-sex couple because they’re gay, but because they’re getting married. His religion states marriage should only be between a man and a woman. He says,

“I’m being forced to use my creativity, my talents and my art for an event — a significant religious event — that violates my religious faith.”

In other words, Phillips sees his custom cakes as works of art, and he shouldn’t be required to make art that offends his personal sensibilities (in this case, it’s his religious sensibilities). His lawyers argue that forcing him to create a custom cake for a same-sex wedding threatens the “expressive freedom of all who create art or other speech for a living.” And let’s face it, the law wouldn’t force a Jewish painter to accept a commission to paint a portrait of Hitler. The law wouldn’t force a Mormon sculptor to accept a commission to sculpt a giant stone dildo with the face of LDS founder Joseph Smith. So why should the law force Christian Jack Phillips to accept a commission to create a cake celebrating a marital union his religion opposes?

It’s because of this free expression argument that the Masterpiece Cakeshop situation is a situation. This is why four of the justices of the U.S. Supreme Court have agreed to hear arguments on the case at some point in this term. And hey, if we agree that art is protected by the free expression clause of the First Amendment (and it is), and if we agree that decorating a cake can be a work of art (and sure, it can be), then that sounds like a solid argument in favor of Phillips.

But it’s not. It’s just bullshit with vanilla icing.

Happy birthday!

It’s bullshit for this reason: it’s still about the wedding. it’s about the purpose of the cake, not the decoration. Let’s say the gentlemen who wanted the cake asked Phillips to create a three-tier wedding cake decorated with rainbow hearts and with two tuxedoed male figures arranged side by side on top. Phillips refuses, saying he shouldn’t be required to use his talents to create a custom wedding cake because his religious views oppose same-sex marriage. Now let’s say those same gentlemen asked Phillips to create a three-tier birthday cake decorated with rainbow hearts and with two tuxedoed male figures arranged side by side on top. Unless his religious views forbid him from celebrating birthdays, he’d be required to make the cake.

It’s the same damned cake using the same ingredients with the same decorations created using the same artistic skills. The only difference is the purpose, and the purpose in the Masterpiece Cakeshop situation is to discriminate against folks having a same-sex marriage.

It’s not about art and it’s not about free expression; it’s about refusing to obey laws against discrimination.

literally a moron

Yesterday Rex Tillerson, the Secretary of State, actually had to stand in front of a microphone to dispute the claim that he called Comrade Trump a moron in a meeting of White House national security officials and members of the cabinet. And he didn’t deny the remark.

He didn’t confirm the report, of course, but Tillerson danced around the issue, calling it ‘petty nonsense’ which means he probably did call the president a moron. And that’s okay with me, because the guy literally is a moron. I am NOT just calling him names.

Not an idiot, not an imbecile, but absolutely a moron.

Back in 1910 the American Association for the Study of the Feeble-minded (and if you find that name offensive, consider that it was originally called the Association of Medical Officers of American Institutions for Idiotic and Feeble-Minded Persons) released a report classifying developmentally disabled folks. This was actually a scientific advance, a result of the research the ASSFM (yeah, I know, not the best acronym, but hey…it was 1910, give them a break) conducted into “the causes, conditions, and statistics of idiocy, and the management, training, and education of idiots and feebleminded persons.” The idea behind it all was that classifying folks into categories would allow more focused treatment.

Here’s what they came up with:

The feeble-minded may be divided into: (1) Those who are totally arrested before the age of three so that they show the attainment of a two-year-old child or less; these are the idiots. (2) Those so retarded that they become permanently arrested between the ages of three and seven; these are imbeciles. (3) Those so retarded that they become arrested between the ages of seven and twelve; these were formerly called feeble-minded, the same term that is applied to the whole group. We are now proposing to call them morons, this word being the Greek for “fool.” The English word “fool” as formerly used describes exactly this grade of child–one who is deficient in judgment or sense.

So it would be inaccurate to call Comrade Trump an idiot. Or an imbecile. He’s more likely to be a moron. Of course, I can’t say with any high degree of accuracy that his intellectual development was arrested between the age of seven and twelve. But neither can I say with any certainty that he’s progressed beyond that.

Consider the fact that he has packed his cabinet with people who are either actively hostile to the agency they run or are manifestly incompetent to run it. That’s the act of a twelve-year-old boy going Nyah nyah nyah, you can’t stop me. Consider the fact that just this morning Comrade Trump sent this on Twitter:

Why Isn’t the Senate Intel Committee looking into the Fake News Networks in OUR country to see why so much of our news is just made up-FAKE!

Tell me that’s not moronic. That’s a twelve-year-old boy shouting I’m rubber, you’re glue; it bounces off me and sticks to you! Consider the way Comrade Trump signs and executive order, then shows it to everybody like he expects them to stick it on the National Refrigerator along with his artwork. And consider this:

If you consider all that, it’s hard to escape the fact that right now These United States are being led by somebody who is ‘deficient in judgment or sense.’ It’s hard to escape the fact that this guy is a fucking moron.