Tag New York Times

Tick tick tick

Pat Ryan Leave a comment

Most of the people I know are tired of talking about you know who, the former president who does dare to speak his name.  I know I am, despite the evidence that indicates I am lying to myself and to you when I say that.  But I keep doing it because it does not seem to me that enough people are sufficiently aroused to the danger he still poses…that we are acting, as Pamela Paul writes in the New York Times, as if we are unaware that there is a bomb under the tale at which we sit.

Alfred Hitchcock explained the nature of cinematic terror with a story about the bomb under the table. People are sitting around a table having a mundane conversation about baseball when — boom! — a bomb goes off, instantly killing everyone. You’ve momentarily surprised the audience.

But what if, Hitchcock asked, we are shown beforehand that the bomb is there?

“In these conditions this same innocuous conversation becomes fascinating because the public is participating in the secret,” Hitchcock explained to his fellow director François Truffaut. While everyone is just sitting around chatting, the viewer wants to shout: “Don’t sit there talking about baseball! There’s a bomb!”

“The conclusion,” Hitchcock said, “is that whenever possible the public must be informed.”

I bring this up because we know there’s a bomb under the table — the threat of a second Donald Trump presidency. And we have a fairly good idea of the crippling destruction that will ensue. Yet here we are, still talking about baseball.

We’re less than a year from the next presidential election – just months from the party primaries and caucuses that will do most of the choosing of the candidates who will run in that election.  We’re running out of time to make choices that could protect our future from a second term of office for TFG.  And protection is what we all need.  In today’s Washington Post, Robert Kagan of the Brookings Institution does a thorough job of laying out the dangers on a “path to dictatorship.”  It’s worth your time to read it all, but here are some of the bullet points.

The magical-thinking phase is ending. Barring some miracle, Trump will soon be the presumptive Republican nominee for president. When that happens, there will be a swift and dramatic shift in the political power dynamic, in his favor. Until now, Republicans and conservatives have enjoyed relative freedom to express anti-Trump sentiments, to speak openly and positively about alternative candidates, to vent criticisms of Trump’s behavior past and present. Donors who find Trump distasteful have been free to spread their money around to help his competitors. Establishment Republicans have made no secret of their hope that Trump will be convicted and thus removed from the equation without their having to take a stand against him.

All this will end once Trump wins Super Tuesday. Votes are the currency of power in our system, and money follows, and by those measures, Trump is about to become far more powerful than he already is. The hour of casting about for alternatives is closing. The next phase is about people falling into line.

(snip)

No doubt Trump would have preferred to run for office without spending most of his time fending off efforts to throw him in jail. Yet it is in the courtroom over the coming months that Trump is going to display his unusual power within the American political system.

It is hard to fault those who have taken Trump to court. He certainly committed at least one of the crimes he is charged with; we don’t need a trial to tell us he tried to overturn the 2020 election. Nor can you blame those who have hoped thereby to obstruct his path back to the Oval Office. When a marauder is crashing through your house, you throw everything you can at him — pots, pans, candlesticks — in the hope of slowing him down and tripping him up. But that doesn’t mean it works.

Trump will not be contained by the courts or the rule of law. On the contrary, he is going to use the trials to display his power. That’s why he wants them televised. Trump’s power comes from his following, not from the institutions of American government, and his devoted voters love him precisely because he crosses lines and ignores the old boundaries.

(snip)

The likeliest outcome of the trials will be to demonstrate our judicial system’s inability to contain someone like Trump and, incidentally, to reveal its impotence as a check should he become president. Indicting Trump for trying to overthrow the government will prove akin to indicting Caesar for crossing the Rubicon, and just as effective. Like Caesar, Trump wields a clout that transcends the laws and institutions of government, based on the unswerving personal loyalty of his army of followers.

(snip)

If Trump does win the election, he will immediately become the most powerful person ever to hold that office. Not only will he wield the awesome powers of the American executive — powers that, as conservatives used to complain, have grown over the decades — but he will do so with the fewest constraints of any president, fewer even than in his own first term.

What limits those powers? The most obvious answer is the institutions of justice — all of which Trump, by his very election, will have defied and revealed as impotent. A court system that could not control Trump as a private individual is not going to control him better when he is president of the United States and appointing his own attorney general and all the other top officials at the Justice Department. Think of the power of a man who gets himself elected president despite indictments, courtroom appearances and perhaps even conviction? Would he even obey a directive of the Supreme Court? Or would he instead ask how many armored divisions the chief justice has?

Will a future Congress stop him? Presidents can accomplish a lot these days without congressional approval, as even Barack Obama showed. The one check Congress has on a rogue president, namely, impeachment and conviction, has already proved all but impossible — even when Trump was out of office and wielded modest institutional power over his party.

(snip)

Trump’s ambitions, though he speaks of making America great again, clearly begin and end with himself. As for his followers, he doesn’t have to achieve anything to retain their support — his failure to build the wall in his first term in no way damaged his standing with millions of his loyalists. They have never asked anything of him other than that he triumph over the forces they hate in American society. And that, we can be sure, will be Trump’s primary mission as president.

Having answered the question of whether Trump can win, we can now turn to the most urgent question: Will his presidency turn into a dictatorship? The odds are, again, pretty good.

It is worth getting inside Trump’s head a bit and imagining his mood following an election victory. He will have spent the previous year, and more, fighting to stay out of jail, plagued by myriad persecutors and helpless to do what he likes to do best: exact revenge.

(snip)

What will that look like? Trump has already named some of those he intends to go after once he is elected: senior officials from his first term such as retired Gen. John F. Kelly, Gen. Mark A. Milley, former attorney general William P. Barr and others who spoke against him after the 2020 election; officials in the FBI and the CIA who investigated him in the Russia probe; Justice Department officials who refused his demands to overturn the 2020 election; members of the Jan. 6 committee; Democratic opponents including Rep. Adam B. Schiff (Calif.); and Republicans who voted for or publicly supported his impeachment and conviction.

But that’s just the start. After all, Trump will not be the only person seeking revenge. His administration will be filled with people with enemies’ lists of their own, a determined cadre of “vetted” officials who will see it as their sole, presidentially authorized mission to “root out” those in the government who cannot be trusted. Many will simply be fired, but others will be subject to career-destroying investigations.

(snip)

And who will stop the improper investigations and prosecutions of Trump’s many enemies? Will Congress? A Republican Congress will be busy conducting its own inquiries, using its powers to subpoena people, accusing them of all kinds of crimes, just as it does now. Will it matter if the charges are groundless? And of course in some cases they will be true, which will lend even greater validity to a wider probe of political enemies.

Will Fox News defend them, or will it instead just amplify the accusations? The American press corps will remain divided as it is today, between those organizations catering to Trump and his audience and those that do not. But in a regime where the ruler has declared the news media to be “enemies of the state,” the press will find itself under significant and constant pressure. Media owners will discover that a hostile and unbridled president can make their lives unpleasant in all sorts of ways.

Indeed, who will stand up for anyone accused in the public arena, besides their lawyers? In a Trump presidency, the courage it will take to stand up for them will be no less than the courage it will take to stand up to Trump himself. How many will risk their own careers to defend others?

I wanted to embed a Tweet here which contains a great video abnout TFG…but X refuses to connect for a video it has labelled as “sensitive content.” OK, try looking at it directly.

Actual malice, meet demonstrable truth

Pat Ryan Leave a comment

…not long after Joe Biden had been officially declared the winner of [the 2020 presidential] election, a bunch of disreputable right-wing sore losers—that’s the technical term—began to claim that the Dominion machines had somehow been tampered with, and that votes that had been duly cast for Donald Trump via Dominion machines had been secretly switched over to Biden’s column.

The fact that this thesis was very stupid did not stop it from gaining credence among many Trump voters. These people weren’t just angry that their candidate had lost the election; they were angry that Fox News wasn’t reporting that Trump had actually won the election. In retaliation, many of these Trump fans began to unofficially boycott Fox News, instead tuning in to other right-wing news networks, such as Newsmax, which were much more willing to indulge their conspiratorial fantasies.

Check out more of this nice, fun summary of Dominion Voting systems libel suit against Fox News here.  The libel suit is scheduled to go before a jury in a Delaware court tomorrow, assuming the two sides don’t reach a settlement between now and then.

As a recovering journalist myself, I’ll say it is my belief that it should be hard to get a libel verdict against a journalist, a newspaper or broadcast company.  The U.S. Constitution envisions a free press that facilitates a lively public debate of issues, and in the decision that set today’s judicial standard on libel law, New York Times v. Sullivan, Justice William Brennan wrote for a unanimous court that “debate on public issues should be uninhibited, robust, and wide‐open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”  The threat of litigation is often used to by people who come out on the bad end of those debates to try to scare a paper or a station into not running tough stories (see: Trump, Donald J.; litigation; threats of).

But that doesn’t mean that those who publish on paper, who broadcast through the air, or who post online, should have a free hand to say anything they want at any time with impunity; those who have truly been libeled do have recourse.  But keep in mind, reputable publications can make a strong defense by proving the truth of what they published: if a published statement is true, it is not libelous or slanderous. (It was not ever thus: courts no longer automatically consider statements that damage the reputation as obviously libelous.)  If what was published is factually true, it is not libelous and you cannot win a lawsuit alleging libel.

In a case where the plaintiff is a public figure or a public official, Times v. Sullivan set a high bar for proving you were libeled by a publication: you must prove that the defendant published a story “with knowledge that it was false or with reckless disregard of whether it was false or not.”  (A term you’ll often hear that is used to describe that state is to say the publication acted with “actual malice.”)  While publication of an erroneous story is bad and hurts the reputation of the publication, it is not a case of libel against a public figure or institution (which Dominion is) if the publication believed the story was true and had done the required work to gather the facts to come to believe it was true.

In Dominion Voting Systems v. Fox, the voting machine company claims Fox defamed the company by “spreading false claims that the company rigged the 2020 presidential election to prevent former President Donald Trump’s reelection.”

As noted in a New York Times story last week,

While legal experts have said Dominion’s case is unusually strong, defamation suits are extremely difficult to win because the law essentially requires proof of the defendants’ state of mind. Dominion’s burden will be to convince a jury that people inside Fox acted with actual malice, meaning either that they knew the allegations they broadcast were false but did so anyway, or that they acted so recklessly they overlooked facts that would have proved them wrong.

During standard pre-trial discovery in this case, Dominion uncovered information from inside Fox that Fox News Channel and its on-air talent and some of its management leaders knew that the claims against Dominion were not true (“with knowledge that it was false”) but published the stories anyway—over and over again—to keep from offending their viewers who believed the claims from Trump and his lawyers and other sycophants of a rigged election (“with reckless disregard of whether it was false or not”).

As it often does, Fox defends itself by wearing the mantle of mainstream responsible journalism operating in the public interest; it argues it reported the claims made by Trump and others because they were newsworthy.

Fox has argued that while it understood many of the claims made by its guests about Dominion were false, they were still worth covering as inherently newsworthy. Fox’s lawyers have taken the position that there is nothing more newsworthy than claims by a former president of the United States that an election wasn’t credible.

But Judge [Eric] Davis disagreed.

“Just because someone is newsworthy doesn’t mean you can defame someone,” he said, referring to pro-Trump lawyers like Sidney Powell and Rudolph W. Giuliani, who appeared repeatedly on Fox News and Fox Business in the weeks after the 2020 election and linked Dominion to various conspiracy theories.

The judge admonished Fox’s lawyers, saying they cannot make the argument that the false statements about Dominion came from guests like Ms. Powell and not from Fox hosts. That argument is irrelevant, he said, because the fact remains that Fox is responsible as the broadcaster.

“It’s a publication issue, not a who-said-it issue,” he said.

There’s no guarantee to the outcome of a jury trial, of course…but if I may presume to summarize a closing argument for Dominion:

  • Fox lied about Dominion rigging its election machines to steal the 2020 presidential election from Crybaby He-Man
  • Dominion made every effort to inform Fox that what its guests and its hosts were saying on the air was incorrect
  • Fox knew that the accusations against Dominion that were being made on its programs were lies, but permitted them to continue
  • Dominion suffered monetary losses and losses to its reputation as a result of Fox’s broadcasts, and asks for money damages

Nice and neat, and not confusing.

Fox has been lying on the air to its audience for years, telling them (1) what they want to hear, regardless of whether it is true, and (2) what certain politicians have agreed to parrot, to build political consensus and power.  But this time, it lied about a company that was willing to call them out in a court of law, and the case has landed before a judge who has demonstrated his loyalty to demonstrable truth and facts.  For Fox, that is a whole new kind of audience.

Walking the talk

Pat Ryan Leave a comment

For starters, they did ask—many times, starting before his term was even over, so don’t give me that “all they had to do was ask” bull.

The federal government tried and failed repeatedly for more than a year and a half to retrieve classified and sensitive documents from former President Donald J. Trump before resorting to a search of his Mar-a-Lago property this month, according to government documents and statements by Mr. Trump’s lawyers. (emphasis added)

The documents, including an unsealed, redacted version of an affidavit from the Justice Department requesting a warrant to conduct the search, make clear the lengths to which the National Archives and the department went before officials pursued a law enforcement action to recover the material.

The FBI knew that Trump had documents at his home in Florida that he was not supposed to have: he had already given them 15 boxes of official material in January of this year, and the FBI and the National Archives suspected there were more documents in Florida that should be returned to the government and that Trump was obstructing their efforts to retrieve them.  Why they thought that is undoubtedly in the redacted parts of the affidavit, parts we haven’t seen but which the federal magistrate judge did read and consider before approving the search warrant.

the affidavit states that the National Archives spent six months in the latter half of 2021 trying to get more documents. And then the FBI got involved. The Post…reported that all this year, Trump resisted handing much of anything over, to the point where his allies feared he was “essentially daring” the FBI to come after them.

Trump was also warned before he even left the White House that taking any official documents with him, let alone national secrets, was illegal under the Presidential Records Act. And even Trump’s attorneys agreed that the former president needed to give the documents back…

(snip)

Included in the paperwork with the affidavit was a formal notice that the redacted memorandum was being released. In it, the Justice Department writes that the redactions are necessary to protect “a broad range of civilian witnesses.”

“This language suggests that people inside Trump’s former administration, or at Mar-a-Lago, are providing information to the FBI,” [former federal prosecutor Barbara] McQuade said.

The redacted affidavit itself suggests that the investigation includes detailed monitoring of Mar-a-Lago to find out how many boxes of official material were still there and where they were being stored.

To be clear: the classified status of some of these documents is only part of the issue.  The laws make clear that no former president is permitted to take control of these types of records—”mere possession of these documents is a crime under some of the statutes cited in the affidavit, whether or not they are classified.”

Trump filed a legal motion this week, arguing that, as president, he had the right to declassify any classified documents and that his continued possession of the material was based on “executive privilege.” A judge should have no problem dismissing both arguments. First, while a president can declassify documents, there is a process for doing so; at the conclusion of the process, the special classified tabs and markings would be removed. Yet the tabs and markings are still on the documents retrieved from Mar-a-Lago. Second, mere possession, much less declassification, of some documents, such as those marked OCORN, must first be approved by the originating agency. That doesn’t seem to have been done either. Third, a president—certainly an ex-president—has no executive privilege to hold documents that properly belong to the National Archives.

If you think about it, Trump’s argument that he had declassified the classified documents…doesn’t help.

https://twitter.com/grantstern/status/1563208809773813760

On top of which, the whole “I raised my magic hand and the documents were declassified” argument has a distinctly “what excuse do they have today” air about it.

https://twitter.com/rgoodlaw/status/1562091922625368065

These actions by the FBI and the Department of Justice are reassuring: federal law enforcement is walking the talk about no one being above the law.  And to those who’ve been clutching their pearls for almost three weeks now at the audacity of the government for having the nerve to search the home of a former president, I think the best and easiest response is to say, we’ve never had any reason to believe that any other former president had ever committed acts that would call for government action like this.  But this guy has.  And if you’re straining to keep up with all the other investigations involving the former guy, here’s some help.

https://twitter.com/147Operation/status/1562181784552480768

Fundamental dishonesty

Pat Ryan 1 Comment

It wasn’t a “driveway moment” because I wasn’t in my driveway, I wasn’t sitting in the car listening to the radio to hear the end of a story that had sucked me in.  No, I was still on the road headed home from the grocery store when I heard two words that broke through and provided some clarity of mind, finally, amid the onslaught of distressing rulings from the Supreme Court of the United States.

Just a week ago, the court’s six “conservative” justices ruled that a program in Maine that subsidizes tuition for certain private schools in rural areas of the state cannot exclude religious private schools from the program.  Two days later the same six found that a New York law placing strict limits on carrying guns in public violates the Second Amendment.  And the day after that, those same six members not only found that a Mississippi ban on abortions after just 15 weeks was constitutional, they went the extra step and overturned the nearly 50-year old precedent of their own court that established a woman’s right to an abortion.

The separation of church and state.  The rights to privacy, and to safety, individual liberty, and self-determination.  The targets of this Supreme Court and the “conservative” movement in general couldn’t be clearer.  With each new Republican-appointed justice on the court, and each new ruling by the new majority, they demonstrate their mission to remake America as a paradigm of Christian nationalism.  It seems clear that the decades-long mission to destroy the secular society that has grown up since World War II just can’t be denied, not even when the inconvenience of the facts gets in the way.

It was Nina Totenberg on the radio reporting on the ruling in favor of the high school coach who insisted on holding a prayer circle at midfield after football games, and Justice Neil Gorsuch’s opinion scolded the school district:

“Here, a government entity sought to punish an individual for engaging in a personal religious observance, based on a mistaken view that it has a duty to suppress religious observances even as it allows comparable secular speech. The Constitution neither mandates nor tolerates that kind of discrimination. Mr. Kennedy is entitled to summary judgment on his religious exercise and free speech claims,” Gorsuch wrote.

The three dissenters said that account of the facts blinkered reality (emphasis added). Writing for the three liberals, Justice Sonia Sotomayor said that Kennedy’s prayer was neither private speech, nor benign. She pointed to the fact that the coach conducted a media blitz leading ultimately to the field being stormed and students being knocked down. And she said “schools face a higher risk of unconstitutionally ‘coerc[ing] … support or participat[ion] in religion or its exercise’ than other government entities.”

“This decision does a disservice to schools and the young citizens they serve, as well as to our Nation’s longstanding commitment to the separation of church and state,” Sotomayor wrote. “Today’s decision elevates the rights of a school coach who voluntarily accepted public employment, over the rights of students required to attend public schools and who may feel obligated to join in prayer.” In doing so, Sotomayor claims, the court gives “short shrift” to the constitutions ban on state entanglement with religion.

University of Virginia law professor Douglas Laycock usually files briefs siding with religion advocates. But not in this case. He called Monday’s ruling, “fundamentally dishonest” and pointed to the third sentence of the Gorsuch opinion, which characterizes coach Kennedy’s conduct as “quiet isolated prayers,” stating, “They weren’t quiet and they weren’t isolated. They were leading the students in prayer, and to say that’s okay undermines all the school prayer cases.” By that he means Supreme Court decisions barring teacher- or student-led prayers in public school classrooms, and ceremonies like graduation.

It was like a fire alarm went off inside my head: “fundamentally dishonest.”

Yes—the fundamental dishonesty of these justices, and of the Christian religious extremists who have been fighting the secularization of American society for generations!  They have had a winking understanding with a certain segment of America: anything is permissible—the end justifies the means—when it comes to returning America to be the Christian country we all “know” it should be, including lying under oath in order to gain positions of power.  Don’t believe me?  Look at the video of the confirmation hearings over the years of the “conservative” justices now on the court: is it just a coincidence that when the Senate Judiciary Committees asked these nominees about Roe v. Wade, these individuals had the same answer, in virtually the same words, words meant to leave the impression that they believed in the doctrine of stare decisis in general and specifically for this case?  I think not.

In a concurring opinion on Dobbs, Justice Clarence Thomas says the quiet part out loud about using the wedge they perfected in overturning Roe to take aim at other precedents that guarantee other rights to Americans.

“In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” Thomas wrote on Page 119 of the opinion in Dobbs v. Jackson Women’s Health, also referring to the rulings that legalized same-sex relationships and marriage equality, respectively. “Because any substantive due process decision is ‘demonstrably erroneous’ … we have a duty to ‘correct the error’ established in those precedents.”

Just coincidence, right, that the other cases on his mind are the ones that guaranteed the rights to same-sex marriage, and same-sex sex, and the use of birth control.  BIRTH CONTROL!?  He wants to return to a time when the use of birth control by married couples in the privacy of their own home could be and was prohibited by states?  Who can even imagine such a thing?

I know who…so do you.  And I don’t take any comfort—at all—in the protestation from the other five “conservative” justices that “[n]othing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”  When there is fundamental dishonesty, I have doubts.

Say the truth

Pat Ryan Leave a comment

It feels like it’s been going soooo slooooowly, but maybe we’re going to see some movement.  Chairman Bennie Thompson says the first public hearings on what the House January 6 committee has learned will be held in early June, and committee member Jamie Raskin is describing what they have learned this way: “This was a coup organized by the president (Donald Trump) against the vice-president (Mike Pence) and against the Congress in order to overturn the 2020 presidential election” and “We’re going to tell the whole story of everything that happened. There was a violent insurrection and an attempted coup and we were saved by Mike Pence’s refusal to go along with that plan.”

Wait, what?  Saved by Mike Pence?

To be fair, I can remember feeling sort of satisfied at the time that Pence had finally stood up to his boss (I think there was some mention of overcoming obsequiousness in there) and refused to take part in such a blatantly illegal plan—a coup.  But I hadn’t considered that maybe we all owe Pence more of a debt than we realized.  Earlier this week MSNBC’s Chris Hayes laid out this interpretation.

I’m eager to see the evidence.  I’m eager to get on with it!  Not to rush to judgment, mind you, but it’s been almost 16 months: the legislative branch and the Justice Department and the court system have got to nail the people responsible for this illegal power grab, and do it soon…or we may find those traitors may be back in power in Washington and in a position to protect themselves forever.  We’ve got to take action to punish those who deserve punishment, and stand up to the haters.

None of the mechanisms to deter a rogue president would work to restrain a reelected Trump.

On that note, I was invigorated last week to stumble across a speech by Michigan state senator Mallory McMorrow.  In retaliation for her support of LGBTQ issues, one of her “colleagues” embraced the popular new right-wing slur by accusing McMorrow of “grooming” children for sexual exploitation.  In a fundraising message.  No evidence provided, of course.  But McMorrow didn’t just take it, or shrug it off; in less than five minutes she sent a positive message that hits the haters right between the eyes.

https://twitter.com/MalloryMcMorrow/status/1516453738403143681

“Hate will only win if people like me stand by and let it happen.”

I want to take a lesson from Mallory McMorrow, and not to afraid to call them like I see them.  We need to make it OK again to say the truth that we see.  It’s how we can defeat the haters.

Democrats Ask if They Should Hit Back Harder Against the G.O.P.