Tag Slate

Recommended election reading, for those inexplicably eager for more election news

Pat Ryan Leave a comment

This week both The Los Angeles Times and The Washington Post issued the surprise announcement that they will endorse no one in the race for president this year.  Those decisions were made by the owners of the newspapers, who in that capacity have every legal right to make the choice they did.  Just not the moral and ethical rights, not if they want their newspapers to mean anything to the readers they claim to serve.

In the case of the LA Times, as the editorial board prepared a series of editorials leading to an endorsement of California native and former state attorney general and U.S. Senator Kamala Harris, it got a message from owner Dr. Patrick Soon-Shiong, “with scant internal or public explanation, abruptly vetoing the planned endorsement, informing the board through an intermediary that The Los Angeles Times would make no recommendation in the presidential race.”  Through an intermediary?  Dude didn’t have the guts to deliver the news face to face?  The story at the above link has more.

The choice at the Washington Post, which was expected to endorse the Democratic candidate, too, was to cease any endorsements in presidential elections from now on; it was announced by the paper’s publisher and framed as a choice to maintain neutrality.  That choice has been interpreted as an effort by the owner, Jeff Bezos, to avoid antagonizing the former guy; the Post itself has published the very critical reactions of 17 of its own opinion columnists under this declaration:

The Washington Post’s decision not to make an endorsement in the presidential campaign is a terrible mistake. It represents an abandonment of the fundamental editorial convictions of the newspaper that we love. This is a moment for the institution to be making clear its commitment to democratic values, the rule of law and international alliances, and the threat that Donald Trump poses to them — the precise points The Post made in endorsing Trump’s opponents in 2016 and 2020. There is no contradiction between The Post’s important role as an independent newspaper and its practice of making political endorsements, both as a matter of guidance to readers and as a statement of core beliefs. That has never been more true than in the current campaign. An independent newspaper might someday choose to back away from making presidential endorsements. But this isn’t the right moment, when one candidate is advocating positions that directly threaten freedom of the press and the values of the Constitution. [emphasis added]

Plenty of other papers are making endorsements, of course, including my hometown Houston Chronicle and my birthtown New York Times, both of whom are encouraging a vote for Harris.  And here are a few other recommended readings:

The Washington Post’s Eugene Robinson with a vivid reminder of the double standard we’ve developed for covering the two major party candidates: high scrutiny for the woman candidate, and a kind of same-old same-old attitude when the former guy “spews nonstop lies, ominous threats, impossible promises and utter gibberish.”

In Slate, Steven Greenhouse with the consideration that the unfathomable (to some) closeness of this contest can be blamed on the richest of the rich Americans who are prioritizing their personal financial well being over the betterment of our country.

At The Bulwark, Will Saletan’s tight summation of just what – specifically – Trump is doing that warrants him being labelled – accurately – as a fascist.

And a lively reminder from The Daily Show’s Jon Stewart of the it-would-be-amusing-if-it-weren’t-so-dangerous reality that the former president is, in point of fact, demonstrably not many the things that his loyal army of supporters say are their reasons for voting for him.  He is, in fact, the opposite of what they say he is, but they can’t/won’t see that.  Sad.

The center holds, for now

Pat Ryan Leave a comment

The more things change – a U.S. president convicted of a felony offense for the first time ever – the more they stay the same – Donald “Trump calls trial a ‘scam,’ vows to appeal historic verdict.” 

The verdict in New York yesterday was historic: not only for being the first time an American president or former president was found guilty of having committed a felony, but for the American system of justice demonstrating that any American citizen can be held to account before a jury of his or her peers.  In spite of that citizen’s rank in society, or his attempts to undermine the system itself by waging “an all-out war against the judicial system before the verdict came in, hoping to blunt the political damage and position him[self] as a martyr.”

But amid the relentless offensive by Trump and his allies on the legal infrastructure holding him accountable, the trial came with a substantial cost, according to those who study democracy, with the ultimate impact likely to be measured in November.

(snip)

“The judicial system has taken a body blow from Trump’s assaults,” said Kim Lane Scheppele, a professor of sociology at Princeton University who studies the rise and fall of constitutional government. Forcing him to sit through the trial, follow orders and listen to evidence against himself meant that “his rage at being controlled by others is going to be directed at trying to bring the whole judicial system down with him.”

(snip)

But there was something different about Trump’s repeated complaints about this first criminal jury trial that made them even more potent, experts say. Whenever a politician is brought up on charges, “every single time that leader will scream up and down that this is a politicized process and his political enemies are out to get him,” said Steven Levitsky, a professor of government at Harvard University. “What’s notable here,” said Levitsky, co-author of the book “Tyranny of the Minority: Why American Democracy Reached the Breaking Point,” “is that the entire Republican Party is marching in lockstep, along with right-wing media, claiming that the legal process has been weaponized, and therefore eroding public trust in a really vital institution.”

(snip)

“The problem is that not even the best institutions in the world can function well in the context of extreme polarization, particularly when one party has turned against democratic institutions. And so extreme polarization and extreme radicalization will undermine and destroy even the best of institutions. And that’s what we’re seeing in the United States.” But even if Trump damaged the judicial system’s reputation through his complaints about the trial, to not prosecute “when there’s a strong sense that wrongdoing happened,” Levitsky said, would be more damaging. “That would hold the judicial system and the political system hostage to say that to prosecute will bring more blowback than benefit. If you give in to that, you have no rule of law.”

Did this trial and all the sideshows related to it diminish the American judicial process?  We can each answer that for ourselves.  I think not, and I don’t think it has for the many many millions of Americans who don’t take every childish taunt out of Trump’s mouth as gospel truth.  He was obviously trying to pre-rouse his supporters to doubt and reject any verdict against him, in the same way he tries to get them to believe that any election he loses had to have been rigged; the unfortunate thing is that it appears to work for many many millions of other Americans.  He promised a “news conference” this morning, and it was filled with more of the same lies as came before.  And, he took no questions…which to my mind makes this a campaign speech rather than a news conference.  Trump is not famous for engaging in a vigorous exchange of viewpoints.

(What he is famous for, among some, is being a TV star, and this morning I discovered an article in the Washington Post with some terrific background about that show.  It cites a recent essay in Slate by one of the producers on that show – who has just been released from a non-disclosure agreement and is free to talk about what he witnessed – and Bill “Pruitt describes choices about scripts and editing and challenges as efforts to present a particular, inaccurate image: the show’s star, Donald Trump, as an omniscient business leader. Looking back across the decades since the first season of the show was filmed, Pruitt clearly regrets having helped foster that perception.”  It’s worth your time to read.)

Trump says he will appeal the verdicts and that is certainly his right, but don’t expect that to bring a conclusion to the legal fight any time soon.  Trump is famously litigious when it comes to civil matters that are at bottom just about money; potential appeals in this case – to the trial judge, two levels of state appeals courts and (yes, possibly) the Supreme Court of the United States could take years to conclude.  Not that it matters, though: Trump, the convicted felon, is still allowed by law to run for president and to serve if he is elected.  And the first reaction to the conviction from among MAGA Nation was to shower him with tens of millions of dollars in campaign contributions!

Does this conviction change the course of the presidential election?  No one knows yet, including the talking heads who are acting like they do know.  It seems plain that those who are brainwashed in the MAGA cult either don’t believe he did anything wrong or don’t care what he did, or think this whole thing is more evidence of the anti-Trump Deep State at work.  Those who were never going to vote for Trump before didn’t need this conviction to sway them.  For the rest, this might be what it finally takes for some Trump supporters to change their minds and some undecideds to choose a side.  It sure seems like it should matter, to everyone.  It wasn’t so long ago, I think, that it would have.

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.

Storm warning

Pat Ryan Leave a comment

First, point out to anyone who complains when all of the ballots in Tuesday’s elections have not been counted by their bedtime Tuesday night and says that is evidence of widespread voter fraud that that is pure bull.  All the votes have probably never been counted just a few hours after the polls are closed, certainly not in an era when we encourage everyone to vote and accommodate their exercise of their rights with early voting and voting by mail and voting from overseas and such modern developments.  And second, don’t listen to anyone who argues on election night that there is evidence of widespread voter fraud – especially if they do so on the Fox “News.”  First, it would take a thorough investigation to prove that accusation.  Second, no such investigation has ever proven that fraud pervasive enough to change the results of elections has ever happened.  (OK, retiring the italics now.)

I don’t know what the results of Tuesday’s elections will be, but I feel confident we won’t find that the poisonous political divide across our country has miraculously healed.  The fight for democracy, as some have cast it, won’t be over whenever this week’s votes are finally tallied, because the fight never ends.  “The price of liberty is eternal vigilance” said…someone, I guess, but apparently not Mr. Jefferson despite many citations, but it’s a great thought to keep in mind: any system designed to guarantee freedom will face threats from those who find your freedom and mine an impediment to their own power.  (You know who I mean.) So how do we keep our spirits up in the face of that on-going threat?  Dahlia Lithwick has a great prescription in Slate.

It is easy to feel despair. The folks who keep disparaging those who worry about the future of democracy seem uninterested in the fact that one party refuses to accept election results, inflames election violence, admits the entire plan is one-party rule, and brushes off and even jokes about vigilante violence. Those same people have been adept at pushing us into semantic arguments about whether we’re using the right words to describe what we see happening right before our eyes. The problem with wasting our time fighting about whether the best word to use in this particular situation is “authoritarianism,” or “fascism,” or “vigilantism,” or “lawlessness,” is that such things can often only ever be empirically established in retrospect. We can hold the I Told You So Olympics in 10 years. Let’s get that on the books.

Call it whatever you like, but this speedy descent into a world in which people who are fundamentally unethical and unserious hold too many levers of power is not normal and it’s not funny. Even for the people striving to find meaning and purpose in the ugliness, the temptation to cede ground, give up, and go small is alluring. That they want you to cede ground, give up, and go small is in fact the problem we can name right now.

My rabbi recently reminded me of a useful way to think through the fog. Citing another spiritual hero last weekend, Aurora Levins Morales, she reminded me that there is always a difference between the weather and the stars. Morales, teaching in 2017, warned that it is too easy to be buffeted by the changeable weather, and in so doing, to lose sight of the immutable stars. The stars, in this telling, are a “constant to steer by, sometimes hidden by storm clouds, but high above them, untouched by wind or rain.”

The weather is different. Weather, Morales conceded, can be “violent, drenching, harsh.” But it isn’t constant. If we do nothing but chase and feel the weather, she wrote, “we could spin forever from emergency to emergency, shouting no to each new crime—but that would be steering by chasing clouds.”

The weather, and the stars: I think that’s a great way to think about it.  There’s the weather, that which we see every day and which changes day to day and in some cases hour to hour—it seems big and important, but it’s transient within the span of our own observation.  The stars, although not permanent in that firmament, can give each of us something long-lasting to steer by.  Lithwick again:

I spent the week before midterm elections that could help determine the fate of democracy in the United States trying to pick my own way through a careening mess of the world into those buckets: Weather versus star. Elon Musk is weather; so is Marjorie Taylor Greene. Tucker Carlson is weather. Even losing tens and thousands of followers on Twitter is, respectfully, just weather. It all matters, sure, and it’s all painful. But it’s a series of transient states to distract you from what is real.

Stars are the things that don’t ebb and flow with the showy Twitter feuds, or the mutable hourly outrages, or public performances of ghastly daily mediocrity. For some of us, the stars are the upcoming elections and the extraordinary acts of voter registration, postcarding, election protection, and democratic engagement. For some of us the stars are the law, the rule of law, and the efforts to bring accountability for lawbreaking. For some of us the stars are efforts to build a tolerant, pluralist world in the face of rising racial and religious intolerance and xenophobia.

(snip)

As we move through the frightening and destabilizing days to come, the weather will attempt to consume more and more of your time and attention and energy. Fascists will tweet more fascism to try to distract you from the impacts of their fascism. My entirely inadequate advice will remain unchanged: Sit in the foulness of the roiling storm and do your work, whatever that may be, and triangulate by the light of whatever star feels eternal to you. Take care of your family; they need you, and take care of your health. Take care of your community; it needs you, and take care of someone in your community who doesn’t know Twitter is even a thing. Vote. Help others vote. Register voters. Staff voter protection hotlines. Place your own body between someone unkind and someone vulnerable. Read a book. Help a kid. Give someone food and love and respect. Donate something you don’t use. Ask for help. Don’t give your time or attention to anything small enough to diminish you along with it.

We’re in the weather, and the temptation to do nothing but talk about the weather is fierce. But above and beyond there are still fixed and immutable values and principles and we must try as best we can to steer by those things instead.

(snip)

You won’t always be able to see them, but the stars are still there. And we will get through the storms ahead, even if we don’t yet believe it, because the storms are not the story. We are the story. Keep looking up.

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