Investigating January 6th and Presidential Privilege

Alan Zendell, September 23, 2021

Aside from occasionally exceeding the speed limit or failing to report a few gratuities to IRS, most Americans are law-abiding citizens. As one such citizen, ask yourself what you would do if you were wrongfully accused of a crime or some other act that might damage your reputation or cause you financial harm. If you knew you were innocent and evidence, both documentary and from testimony or deposition would support your innocence, would you fight disclosure? Would you assemble a high-priced legal team to fight every legally issued subpoena and request for information? Would you scream unfair persecution and fake news or spend millions filing lawsuits against your accusers on every frivolous thing you could think of to create diversions, or trust the legal process to exonerate you?

Most of us don’t have millions to waste on such nonsense, and if we did, would we drag the whole country through the mud and create unprecedented turmoil to obfuscate the truth if we knew we were innocent? Would we continue to file suits and accuse everyone else of lying despite months of having all our accusations debunked and losing every case we brought before a judge? In America, we’re not supposed to pre-judge the evidence, but most of us would call the fire department if we saw smoke pouring from our neighbor’s windows, even if we didn’t see flames. And if we saw thousands of people storming the Capitol in support of a losing presidential candidate’s lies, we sure as hell would want to know if the candidate himself was guilty of inciting the insurrection.

President Biden agrees, and as a result, is willing to wade into what promises to be a prolonged fight over presidential privilege to assure that all evidence related to the January 6th insurrection comes to light. Today’s Washington Post reports that “the president views the attack on the Capitol as ‘a dark stain on our country’s history’ and is ‘deeply committed to ensuring that something like that can never happen again, and he supports a thorough investigation.’”

The Select House Committee on the January 6th Attack is gathering all available evidence to determine who planned and executed it, and whether their motivation was to undermine the Constitution and/or stage a coup. Their targets of interest include right-wing activist groups, members of Congress, former President Trump, and members of his administration. Trump, following his typical pattern, cries unfair persecution by the media and political assassination. He is threatening to claim presidential privilege to prevent evidence from being released to the committee.

If this were an isolated incident, we might initially give Trump the benefit of the doubt – in America, you’re innocent until proven guilty. But it’s not isolated. Trump fought tooth and nail to prevent information about his taxes from being released, contravening a tradition that every president from Gerald Ford to Barack Obama acceded to, and he launched a lawsuit against the New York Times and his niece, Mary Trump for publishing his legally obtained tax records. He also claimed presidential privilege when Robert Mueller attempted to interview people close to him and when testimony was sought about his dealings with Ukraine in his first impeachment.

The next ninety days will likely be consumed with legal arguments over presidential privilege. According to former U.S. federal judge, J. Michael Luttig, “With a few notable exceptions, the historical practice has been for Presidents to avoid asserting Executive Privilege to protect from disclosure information that suggests wrongdoing or potential wrongdoing by a President and/or his advisers.” Additionally, most legal scholars believe that presidential privilege does not apply to former presidents, and the final decision on whether privilege applies in the January 6th investigation will belong to the current president, Joe Biden. If they’re right, (it will likely be the courts that decide,) Biden would have the final say on whether information or testimony shedding light on Trump’s actions with respect to the insurrection are admissible.

Fasten your seatbelts. Congrressional rules may delay the final outcome of the presidential privilege debate until the end of 2021, but once it’s concluded, the nation will learn unequivocally whether its former president deliberately fomented the attack on the Capitol, and which members of Congress may have abetted the crime. The stain Biden referred to will only get bigger and more foul-smelling, but it is essential for the truth to come out. As Biden said, this (the insurrection) can never be allowed to happen again. People on all political sides ought to want to know the truth.

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Our Flawed Democracy is Hurting Our Diplomacy

Alan Zendell, September 21, 2021

In June, President Biden traveled to the U. K. to engage with Prime Minister Boris Johnson and attend his first G7 meeting. From there, he went to Belgium, where he attended the Brussels 2021 Summit. He also had one-on-one meetings with NATO Secretary General Jens Stoltenberg, Turkish President Recep Erdogan, and Belgian Prime Minister Alexander de Croo, after which he attended the E. U./U. S. summit. Then, he traveled to Geneva, where he met Swiss President Guy Parmelin and Russian President Vladimir Putin. Sounds like a busy week for anyone, much less a seventy-nine year-old president who critics claim isn’t physically or mentally up to the job.

Yesterday, he traveled to the United Nations in New York, were he met with Secretary General Antonio Guterres and Australian Prime Minister Scott Morrison, and this morning, Biden delivered his first address to the General Assembly. Biden did what all American Presidents do, visiting foreign leaders, touching hands, and laying out his view of American foreign policy.

Usually, these visits are intended to assure allies and other foreign leaders that there will be continuity from previous administrations. In diplomacy, stability and clearly communicated intentions are everything. But Biden had a more important theme. At each stop he reinforced his message that “America is Back” from the isolationism and America First policy of his predecessor.

For four years, Donald Trump consistently told our allies that they could no longer count on America the way they had in the past. He did so with a tone of rancor and disdain, accusing individual nations and NATO of ripping off the United States for decades, threatening to abandon them if they didn’t pay up. He publicly snubbed staunch allies like German Premier Angela Merkel, South Korean President Moon Jae-in, and Japanese Prime Minister Shinzo Abe. At the same time, he continually praised adversaries who ruled autocratically with little regard for human rights: North Korea’s Kim Jong Un, China’s Xi Jinping, and Putin.

Biden’s mission was to inform the world that the United States was returning to normal diplomacy and restoring relations with its allies. It wasn’t an easy message, coming on the heels of our chaotic withdrawal from Afghanistan and the recent kerfuffle with France over a nuclear submarine deal between The U. S., U. K., and Australia. The French described it as a betrayal since it resulted in the cancellation of a lucrative agreement between France and Australia. With other critical issues like COVID, climate change, and immigration on everyone’s front burner, this was going to be a difficult address.

Biden delivered his forward-looking message to more than polite applause from the General Assembly, but that had more to do with knowing and liking him personally than buying his message. Normally, when a president is involved in serious diplomacy outside our borders, political opponents at home turn down the rhetoric. Regardless of how you view the U. N., there’s an unwritten understanding that it’s important to create at least a façade of unity for the rest of the world. This year, that tradition was upheld by senior Republicans with strong views on foreign policy, even highly vocal opponents like Senators Lindsey Graham (R-SC) and Marco Rubio (R-FL).

But this year there are two Republican parties, one led by Mitch McConnell and Mitt Romney, and one led by Donald Trump. As he demonstrated throughout his life, Trump cares only about himself. His thirst for power admits no exceptions, not our Constitution, our rule of law, our diplomacy, or the long-term interests of our country. As President Biden slogs through the messes he inherited and attempts to re-engage positively with the rest of the world, self-absorbed Trump continues to claim Biden is an illegitimate president, regardless of mountains of evidence and court decisions to the contrary. He behaves like a rabid attack dog who cares nothing about the potential consequences of his actions as long as he wins.

Trump’s detractors, who represent about two-thirds of all Americans, often accused him of treasonous acts: bribing foreign governments to help him win elections, trying to overturn an election he lost by eight million votes, and the act for which I believe he will most remembered, inciting the insurrection at the Capitol. Brazenly attempting to undercut our current president while he struggles to rebuild our international relationships is more treasonous than all the rest. What Trump is doing reminds our allies and adversaries alike that America cannot be trusted, because our democracy contains the seeds of its own destruction. Anything Biden promises could be reversed by the next election. Our allies may not like autocrats, but at least they know where they stand.

We preach free speech and human rights to the rest of the world, but when the political opposition at home pushes the envelope around those rights beyond reason and legal precedent, it’s time Americans woke up to the reality that Trump would rather burn everything down than accept defeat.

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Rules of Engagement

Alan Zendell, September 17, 2021

It’s almost a cliché, but historians and military leaders often criticize our defense strategy as investing America’s resources in figuring out how to re-fight the last war as opposed to realistically preparing for or trying to prevent the next one. Philosopher, novelist George Santayana coined another: “Those who cannot remember the past are condemned to repeat it.” The thing about clichés is that they usually contain more than a grain of truth.

With all the emotions around memories of January 6th, those are the thoughts that dominate my anticipation of tomorrow’s planned rally at the Capitol. Some of the same people who attacked the Capitol eight months ago will be back in Washington to march in support of their friends who have been indicted or convicted of serious felonies as a result of actions committed during the insurrection.

The Department of Homeland Security, the National Guard, and the thirty-plus police forces that patrol the District of Columbia, notably the Capitol Police, are all feverishly working to avoid a repeat of January 6th, when they were caught woefully unprepared. In part, their failure was the result of politically motivated rules the Trump administration put in place that made it impossible for local forces like the Capitol Police to rapidly summon reinforcements. That’s like telling the fire department they can’t call in additonal units when a fire gets out of hand.

This time, protective fences were erected before tomorrow’s rally, instead of scrambling to fix our national barn door after the cows have left. This time, there will be no administrative barriers in place that prevent law enforcement agencies from coordinating their response to potential violence, and adequate reserves will be in place, ready to move. This time, the entire Congress will not be sitting ducks meeting in joint session under highly publicized and controversial circumstances. And this time, far fewer demonstrators are expected, both among right-wing extremist groups maintaining the Big Lie about the 2020 election and likely counter-protestors. So much for prevention and learning from past mistakes.

Is that enough to convince you we’re prepared this time? There’s another component of preparedness that you won’t hear discussed either in mainstream media or official press releases in advance of tomorrow’s rally, and it may be the most critical aspect of how we deal with angry mobs possibly bent on violence. Maybe cooler heads among the leaders of groups like the Proud Boys and Oath Keepers, who are under tight scrutiny by the FBI, will decide to stay home, or at least leave their weapons behind. It’s possible that the rage of the protestors will flame out like a thunderstorm that’s out of energy. It’s also possible that it might not. What if the rally turns violent?

Whenever there is a potential for armed conflict, whether from civil unrest or military action, it’s critical to have clearly defined Rules of Engagement. Every commander, supervisor, and first responder must be clear about how to react in any situation that arises – when to use containment, when to attempt to break up dangerous-looking mobs, when to employ tear gas and flash-bang grenades, and most important, when to respond with mass arrests or lethal force. The only time the public will learn about those Rules is after the fact, if violence erupts.

There are undoubtedly some on the law enforcement side who advocate a forceful, zero tolerance response rather than a passive, wait-and-see defensive posture. It’s the age-old debate most of us have encountered at some point in our lives. How does one deal with bullies and aggressors? History has taught time and again that appeasement only encourages more violence. Those who would force their will on others by bullying invariably interpret passivity as weakness, which leads to ever increasingly aggressive actions. And if bullies are heavily armed with deadly weapons and even deadlier ignorance and the false belief that their cause is righteous – we all know where that leads.

Europeans learned it prior to World War II. The countries of Eastern Europe learned it facing Communist expansionism in its aftermath. Israel learned it every day of its first twenty years of its existence. No one will say this out loud before tomorrow, but the real issue is when preemptive action is justified. Extremist groups are spreading rumors that their rally is a setup for mass arrests and incarceration, maybe worse. I abhor violence, especially the kind that happens when mob mentality takes over. But I still have to ask – under what circumstances is it appropriate to use lethal force preventively? That is being debated behind closed doors today.

This is a very precarious moment, what President Biden might refer to as a critical inflection point in our history. It’s worsened by statements from our self-serving former president that the prosecution of the January 6th offenders is unfair persecution.

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Courage in Perilous Times

Alan Zendell, September 15, 2021

Yesterday, Senator Richard Durbin (D-IL) told Washington Post reporters, ”It is breathtaking to think of the lengths that [Joint Chiefs Chairman Mark] Milley and others went to to avert the disasters Trump was creating at the end of his presidency.” He was reacting to excerpts from Peril, a new book by Bob Woodward and reporter Robert Costa. The book describes the chaotic last months of the Trump administration, including the fears that many top administration figures had that Trump’s lust to retain power might drive him to irrational, dangerous actions.

Peril mentions Milley a number of times. He reportedly placed two secret calls to his Chinese counterpart, General Li Zuocheng, to calm Chinese concerns that Trump was planning to attack China to save his presidency. That prompted former president Trump and sometime sycophant Senator Marco Rubio (R-FL) to accuse Milley of treason and demand his resignation. In response, President Biden said he had great confidence in Milley, whom he has come to know well and trust. Milley’s spokesperson, Colonel Dave Butler, said all of Milley’s actions were constitutional and within his designated responsibilities, and that Milley “continues to act and advise within his authority in the lawful tradition of civilian control of the military and his oath to the Constitution.”

Milley also reportedly ordered his military commanders to ignore any presidential orders to initiate hostilities against Iran, China, or any other country, including ordering a nuclear strike, without involving him in the conversation first. Though there is no legal requirement for a president to get approval for his actions from military officers, Milley was concerned that Trump, who he viewed as deranged, could trigger a nuclear war. I can barely imagine the courage that took. If Bush 43’s senior officers, Colin Powell, in particular, had demonstrated that kind of courage, we might have avoided twenty years of war in Iraq and Afghanistan.

Speaking of heroic acts, many Americans, even some of his detractors, praised then Vice President Pence for refusing to follow Trump’s order that he delay or derail the Senate’s certification of Biden’ victory on January 6th, after which, according to Peril, Trump in typical vindictive fashion, told Pence, “I don’t want to be your friend any more. I made you. You were nothing.” But let us not heap too much praise on Mr. Pence, who spent four years as Trump’s chief lapdog and enabler. It turns out he wasn’t all that heroic.

Rather, he reportedly sought every possible means of overturning the election, and only did “the right thing” when it was clear there was none. The book reveals that as a last resort, VP Pence consulted Bush 43’s VP, Dan Quayle, who told him, “Mike, you have no flexibility on this. None. Zero. Forget it. Put it away.” But even that wasn’t enough, as Pence continued to probe for ways to stay in Trump’s graces, hoping to be his successor. He only gave in when it was clear that appeasing Trump would expose him to criminal prosecution.

There’s much more in Peril, whose title clearly expresses what Woodward and Costa believe about the state of our nation from November thru January. There has been a lot published about Trump’s presidency, much by people who can reasonably be accused of having an ax to grind, not to mention hoping for a huge payday. Of all of them, Bob Woodward has spent five decades earning our national trust. Trump said as much when he agreed to be interviewed by Woodward. Let’s assume for the moment that Woodward’s conclusions, based largely on detailed interviews with senior administration official, are correct. Given his connection to the Post, (he’s an associate editor,) let’s see what their editorial board has to say.

They raised a number of pertinent questions today. One addressed the 25th Amendment by which an unfit or indisposed President can be removed from office. The amendment was intended to deal with a gravely ill president, a situation in which politics would not be an issue. But since the amendment requires agreement among the president’s political appointees, it’s extremely unlikely that it would ever be invoked in a politically charged situation, no matter how potentially dangerous it was. The Post suggests an urgent need for “statutory authorization and guidance on the 25th Amendment to lay out step-by-step instructions for the vice president and the Cabinet.”

More importantly, Post editors ask “what guarantees must be put in place to prevent an unstable president from setting off a nuclear war?” That’s a damn good question, and one that our politically gridlocked Congress in unlikely to be able to answer, which raises their final question: “How long will traditional Republicans who believe in the Constitution continue to support Trump as the leader of their party?”

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Voting in America

Alan Zendell, September 14, 2021

As we enter the home stretch of President Biden’s first year in office, the most important thing on his agenda is passing a federal voting rights bill. History will show that the legacy of Donald Trump was to attempt to change our country in two important ways, both of them fraught with peril for our future. When Roger Ailes of Fox News convinced Trump to run for president with his news channel’s full support, his argument was that there were millions of unheard Americans who desired a shift toward far-right politics, and the way to win was to create a sharp dividing line between them and everyone else.

The resulting divisiveness and ultra-partisanship that has paralyzed our Congress are even sharper today than when Trump began his campaign in 2015. One of the clearest indicators of that is attempts by red-state legislatures to tilt the scales in future elections in favor of right-wing extremists. Until now, they have succeeded in spite of the fact that new state laws which target minority and immigrant populations who traditionally vote Democratic represent only a minority view among those states’ residents. Polls taken throughout 2021 show that in most red states, legislators are much further to the right than the voters they represent.

Earlier this year, House Democrats, with no Republican support, passed the For the People Act, which would incontrovertibly establish voting rules in federal law that maximize access to voting for all American citizens. But the House bill had no chance of passing the Senate because of the filibuster rule which requires sixty votes to end debate and actually vote, and a few so-called Senate moderates led by Joe Manchin (D-WV) believe that the filibuster is a necessary stopgap to protect the rights of the minority party. With the Senate divided 50-50, this small group, which won’t entertain killing it or passing legislation with “carve-outs,” have the leverage to kill the bill.

Only time will tell whether Joe Manchin’s legacy will be the savior of bipartisan politics or the obstructionist who allowed Republicans to thwart efforts to protect voting rights guaranteed by the Constitution. Manchin was successful in getting ten Republicans to support the $1.2 trillion infrastructure bill that still must pass the House, and he has insisted that forcing legislation though via reconciliation, which bypasses the filibuster, is a destructive process that must be avoided in all but the most dire emergencies.

Most Senate Democrats believe red state attempts to restrict voting rights represent just such an emergency. They have spent months working with Manchin’s cohort of moderates to craft a bill they can all support, and yesterday announced they have reached agreement on a new legislative proposal. “The new bill would make it easier to register to vote, make Election Day a public holiday, ensure states have early voting for federal elections and allow all voters to request mail-in ballots. In addition, the measure would bolster security on voting systems, overhaul how House districts are redrawn and impose new disclosures on donations to outside groups active in political campaigns.”

Manchin succeeded in swaying his Democratic colleagues, though with only fifty votes, the bill would have no chance of being passed by the Senate. Still, Manchin refuses to support passing it with no Republican support. He insists that he will find the ten votes needed for bipartisan passage among his Republican friends in the Senate. Manchin is correct in principle. The question is what it would take to tip the balance from principle to pragmatism if no Republicans are willing to engage with him.

Another ominous attack on voting in America has surfaced in the recall election of California Governor Gavin Newsom. Newsom’s principal challenger, right-wing radio host Larry Elder has fully endorsed the Trump playbook on elections. Elder announced that software used to detect fraud in third world countries’ elections has determined Newsom won due to fraud – two days before the election. Voters will let us know how they feel about false claims of election fraud, today, when they actually cast their votes.

Although most Americans have friends or family in California, the recall election has generally been viewed, nationally, as a media soap opera. But over the past century, California has been an excellent predictor of future trends in America. As Elder’s evidence-free claims come on the heels of Trump’s lawyers being thrown out of court more than sixty times alleging the same nonsense, we really ought to pay attention to the outcome. If California voters succumb to such crazy propaganda, we’re all in trouble.

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9/11 Memories

Alan Zendell, September 12, 2021

We all have them. Like the day JFK was assassinated, we all remember exactly where we were and what we were doing when it happened. The former was fifty-eight years ago, but the moment is etched in my memory. I was doing laundry in the basement of my New York apartment building listening to a transistor radio. The gasp I heard when ABC News interrupted the music with that horrific bulletin came from my beautiful, blonde neighbor, who was terrified. I’d have liked to console her, but at nineteen, I was too shaken to console myself.

On nine-eleven, I was in a government conference room in Baltimore. Waiting for a video conference to begin, someone had turned the television to the local Fox news station, and the roughly twenty people who watched the initial bulletin seconds after the first plane hit the tower barely breathed. Oddly, I was the only one in the room who instantly realized it was a terrorist attack – everyone else thought it was just a horrible accident. But that was impossible. No matter how much distress a plane is in, any pilot would have been able to avoid hitting the tower. It had to be deliberate.

A native New Yorker, I took the attack personally. How dare anyone attack the city I had loved growing up? I’d been awed by its canyons of glass and steel. As a kid, nothing thrilled me more the looking up at those edifices and thinking, “People built all this.” And other people, sick with hate and corrupted religious fervor were trying to knock it all down. When the immediate terror subsided, my only thought was, when they catch the bastards behind this, I want to be the one that loops the nooses around their necks. As soon as the authorities allowed, I drove to New York to stand by the fence around Ground Zero. It wasn’t enough to see it on television. I had to be there and feel it.

I spent the day of the attack worried about my wife, who worked downtown in Washington and was caught inside the capital security zone when the cell towers were turned off. That actually helped my outlook, as a total stranger saw her among the stranded crowds, and offered to drive her home, thirty miles away. That act of kindness and generosity tempered my own anxiety and convinced me that we would come through it all strong and united.

Of all the remembrances that filled our TV screens, yesterday, we chose to watch the Canadian musical play Come From Away, which played to record crowds in theaters all over North America before becoming a smash hit on Broadway in 2017, and was just released on Apple TV. The play, which recounted how the wonderful townspeople of Gander, Newfoundland cared for 7,000 people whose flights were diverted when the FAA shut down American airspace after the attack, “has been received by audiences and critics as a cathartic reminder of the capacity for human kindness in even the darkest of times and the triumph of humanity over hate.” There were no dry eyes in my living room watching it last night.

Twenty years later, it’s clear that the nine-eleven attacks changed the world as much as the atom bomb dropped on Hiroshima, which brings me back to an ironic memory of another horror, thirty years earlier. I avoided the jungles of Vietnam by spending most of three years working for a defense contractor in the Pentagon. For me, seeing how things really worked inside the National Military Command was a terrifying eye opener. Most shocking of all were some of the things I and my fellow computer nerds heard at briefings by senior military officers. One marine general regularly scared the hell out of us, constantly warning about preparedness against threats most people never even thought about. We thought he was a lunatic, especially the day he talked about his experience on an aircraft carrier in the final months of World War II when two Japanese kamikaze pilots crashed their planes into the carrier.

The story was a lead-in to one of his worst nightmares. In 1969, red-faced, but sober as a judge, he railed at his audience about all the ways we were vulnerable. He stunned us all when he shouted that one day someone was going to “crash a damn plane into the Pentagon,” and we’ll be helpless to stop it. Turns out he wasn’t a lunatic after all.

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Federal Supremacy

Alan Zendell, September 10, 2021

The Federal Supremacy Clause of our Constitution “establishes that the federal constitution, and federal law generally, take precedence over state laws, and even state constitutions. It prohibits states from interfering with the federal government’s exercise of its constitutional powers…it does not, however, allow the federal government to review or veto state laws before they take effect.” The Biden Administration, in the person of Attorney General Merrick Garland has decided to use this clause to attack state laws and governors’ executive actions that he believes deprive Americans of exercising their constitutional rights.

The opening salvo was fired yesterday when DOJ sued the State of Texas over its new law that prohibits abortions after six weeks of pregnancy and deputizes the entire state to report on anyone thought to be “abetting” a woman attempting to have one. It also offers bounties to anyone willing to spy on family or friends, a favorite tactic of dictators everywhere. Combined with Texas’ new open carry laws for firearms…I can’t even finish this sentence.

The idea of the DOJ lawsuit is that the Texas law denies women’s constitutional rights by violating fifty years of legal precedents that established their right to end unwanted pregnancies. A lot of anger was directed at the Supreme Court for refusing to enjoin the Texas law from going into effect, and the majority of Americans who believe in a woman’s right to decide what is best for her own body took that decision as an ominous warning that Roe v. Wade was about to be overturned.

Given that the conservative majority on the Court claim to be originalists, I believe that’s an over-reaction. The Court’s refusal to delay the implementation of the law falls within the dictate that the federal government cannot review or veto state laws before they take effect, as noted above. The true test of the Court’s position on Roe will emerge as countless challenges to Texas’ law come before it in practice.

After President Biden declared an all-out offensive to eradicate COVID, yesterday, if governors and state legislatures continue to obstruct the administration’s efforts to protect us, I expect the federal supremacy clause to be used to force them to comply with federal requirements. If recalcitrant governors and legislators attempt to undermine the Biden Administration’s efforts to vaccinate our population and protect Americans with mask requirements until enough people are vaccinated to make schools, workplaces, and entertainment venues safe, the DOJ will use a similar argument to attack those actions.

It’s right there in the first sentence of the Preamble to the Constitution. The Founders’ overall intent was to provide for the common defense and promote the general welfare of all Americans. Do those words apply to defending Americans against a deadly pandemic and a woman’s right to control her own body? COVID has already killed more Americans than any war since World War II, and far more than all foreign-inspired terrorist attacks combined, including nine-eleven.

How the Court’s originalist philosophy translates into today’s values remains to be seen. Laws evolve over time. What does it mean to adhere to the original intent of the Constitution in an environment that could never have been envisioned by the people who wrote it? The Founders couldn’t have imagined today’s world, in particular the state of medical science. When the Constitution was drafted there was no defense against plagues and pandemics. You lived or died based on the whims of fate as people didn’t even understand the concept of viruses and deadly bacteria. As for abortion, rape was rampant and even in the case of normal, desired pregnancies, millions of women died giving birth. Should a conservative interpretation of the Preamble be based on sound principles, protecting life, and science or politics?

The hyper-partisanship in our country today is mostly about people with obscene amounts of wealth fighting each other for power. That should not be what drives the Supreme Court. Justices on the Court have already achieved their life’s ambitions, and serve lifetime appointments. They should be able to put aside personal biases and religious beliefs. They should not be swayed by political pressure, either, and they usually aren’t. Take Chief Justice Roberts as a case in point.

Governors like Ron DeSantis (R-FL) and Gregg Abbott (R-TX) have framed our public health emergencies as battles for states’ and individual rights. It’s an absurd argument motivated solely by their need to pander to Trump’s base, because that’s where they’ve bet their future ambitions. I believe the Supreme Court is better than that. They understand their role as the last bastion of sanity. They also understand that if they succumb to politics, our “democracy” is doomed. Let’s wait and see.

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Eight Months In

Alan Zendell, September 8, 2021

Did anyone else hear the alarm bells going off on all the cable hype networks? Catastrophe! Afghanistan was a debacle, COVID-Delta is killing people faster than its parent virus, and Republican Governors and legislatures are passing extreme right-wing laws as fast as they can be typed. All this in less than eight months, and President Biden’s favorability ratings in poll after poll started tumbling. Finally, last week, they dipped below 50%, and the not-so-loyal opposition is crowing, rooting out loud for him to fail.

A few days ago, Biden’s rating hit rock bottom, at 46% or 48%, depending which poll you read. That sounds terrible for a president whose main campaign promise was to re-unite the country, until we provide some context. Biden’s attackers, almost exclusively Trump supporters, fail to note that Biden’s rock bottom low is around the highest rating his predecessor ever had. Trump’s final recorded approval rating as president was 34%.

Our withdrawal from Afghanistan was an embarrassing mess that bespoke diplomatic and intelligence failures, and inept planning. The chaos wasn’t Biden’s fault any more than it was Trump’s, yet there was a distinct difference in Biden’s presidential stature. Where Trump was incapable of admitting responsibility for failures and constantly engaged in scapegoating, Biden acknowledged that the buck stopped with him. Instead of publicly humiliating his generals and intelligence agents, he had nothing but praise for everyone involved in the operation.

And why not? After all the sniping and criticism, and Monday morning quarterbacks explaining how it should have been done with the benefit of hindsight, 130,000 people, among them, 6,000 Americans were airlifted from a place where they would surely have been arrested or killed and brought to safety. The only flaw in that ointment was a breach in the Taliban security line that was supposed to protect evacuees from harm, which allowed ISIS-K fanatics to pass a suicide bomber through the airport gate.

That attack, which killed thirteen U. S. Marines, horrific as it was, was a necessary reminder of why we were leaving that place. The British, Russians, and three American presidents all learned the harsh lesson that Afghanistan is unmanageable. It’s a collection of warring extremist factions that no one has ever successfully united into something that looked like a civilized nation. It’s a place that would require an occupation force of over a million to maintain law and order. The fact that ISIS-K was able to pull off that attack during a negotiated withdrawal truce underlines how impossible our mission was.  

But while Afghanistan was a windfall for cable sponsors and Nielsen ratings, our friend COVID-Delta was spreading at a frightening rate wherever it found concentrations of unvaccinated, unmasked people. That’s not a political statement. It’s an incontrovertible fact. In states or localities where people had been encouraged to reject the vaccines and right-wing extremists turned mask-wearing into a human rights battle, hospitals were filling, non-COVID patients were being turned away, and thousands were dying, this time including children.

It seems to have been inevitable that craven politicians who care more about power than human life would work as hard as they have to undermine the recommendations of every responsible health professional in the country. If I tried to incorporate all this into a novel, every editor in the country would reject it as too unimaginable to publish. Yet, here we are, with pro-Trump politicians all over the country legislating against masks and vaccination and declaring war on teachers and school children, all in opposition to President Biden’s attempts to eradicate the virus. They’d love to somehow convince voters in red states that scenes of friends and loved ones sickening and dying are Biden’s fault, but voters, Americans in general, are too smart for that. Anyone with eyes and ears can reach the right conclusion on his or her own.

That’s why Biden’s numbers will bounce back before long, and why Trump’s kept falling in 2020. The difference last year was that the majority of Americans concluded Trump was willing to sacrifice their health and lives to win re-election. Simply put, that’s why Biden beat him by eight million votes, and that’s why, when the smoke settles, Americans will wake up to the scams Trump supporters have been running on them.

It should be interesting to watch the political fortunes of Florida governor Ron DeSantis and Texas Governor Gregg Abbott, when it becomes clear they have bet their future political ambitions on Trump’s base, with the same attendant disregard for the lives of the people they swore to protect. It’s already hurting DeSantis, who must run for re-election in 2022 and who has clear presidential ambitions. Virtually a shoo-in for re-election last spring, he now trails former governor Charlie Crist. Do you think the spiraling COVID numbers in Florida are just a coincidence?

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The World’s Largest Posse

Alan Zendell, September 2, 2021

As a kid, whenever I watched a movie or TV western, there was one thing I could always count on. Some bad guys would rob a bank, shoot an innocent bystander or two, then jump on their horses and ride out of town headed for their hideout. Moments later, the sheriff or marshal would call for volunteers for a posse to hunt them down, and dozens of farmers, store clerks, and assorted cowboys would show up armed to the teeth and eager for the chase. They’d all be “deputized,” and ride off into the sunset.

They were like a volunteer fire department responding to an emergency, except that they were licensed to arrest and kill if necessary. With only a few hundred lawmen to cover a couple of million square miles of largely unsettled territory, there was no other reasonable way to catch bad guys. The rule of law was represented by circuit judges who came to town once a year, leaving the local citizenry to make their own laws, and posses often turned into lynch mobs.

Another common TV/movie trope was the sometimes real, sometimes fictional dictator who stayed in power with secret police and citizens spying on each other. Neighbors reported neighbors, children spied on their parents, and sniveling cowards spied on everyone for a few pieces of silver. We saw it in war and spy movies, and dystopian fiction like 1984.

Texas recently enacted laws designed to turn back the clock and incorporate both of these approaches to law enforcement into its repertoire. According to The Texas Tribune, as of September 1, 2021, every citizen over twenty-one who is not a convicted felon or criminally insane is permitted to carry concealed (or unconcealed) weapons without permits or licenses. Another new law outlaws abortions after six weeks of pregnancy with no exceptions. It doesn’t matter if a woman or young girl was raped or a victim of incest, or if she wasn’t aware she was pregnant until after the six-week mark.

The abortion restrictions go further – they criminalize every form of assistance to a woman seeking an “illegal” abortion from performing the procedure, helping her make an appointment, to driving her there. And to get around the Rowe vs Wade precedents that states may not forbid abortions before twenty-two weeks, the new law bypasses law enforcement and government entirely. Instead, it authorizes any Texan to sue or take other actions to prevent anyone from violating it.

As a result, Texas has in effect created a posse of 22.9 million potentially armed citizens who have no training in either law or its enforcement to enforce the horrific crime of helping someone have an abortion under circumstances that have been formally legalized by federal courts for nearly fifty years. The same Texas legislature recently passed a voting rights law that bans ballot drop boxes and attempts to turn back the clock on who can vote to Jim Crow days, which Governor Abbott eagerly signed when it reached his desk.

Asked to stop the law from taking immediate effect, the Supreme Court voted 5-4 to take no action, yesterday, thus signaling that forty-eight years of consistent legal precedents in hundreds of cases around the country are now deemed meaningless. As serious as the issues of abortion rights and responsible gun control are, both of which are supported by substantial majorities of Americans, the implications of the Court’s looking away go far beyond them. Some people might call this a great victory for states’ rights, but most see it is as undermining federal authority and an erosion of our constitutional guarantees.

In fact, what we see in Texas today is a victory for a minority of Texans who are tyrannizing their state and setting an example for other, similarly minded states. That minority is an unholy coalition of White Supremacist leaning Trump supporters and sheep-like evangelists who blindly follow the doctrine of ignorant and politically corrupted church leaders. They were defeated at the polls, nationally, but they still hold sway in half the state legislatures, at least until the next election.

Trumpers in general, a clear minority of voters nationally, are like a lame duck party scrambling to change everything they can before the voters get wise to them and throw them out of office. Texas is a clear example of this, a state whose population is only forty percent white (as opposed to African American, Hispanic, native American, and other minorities) but is desperately trying to prevent its sixty percent nonwhite majority from sharing power.

Texas’ new laws are anti-democratic in the extreme. Creating the largest posse the world has ever seen and turning it loose could be a precursor to anarchy and the end of our Constitution. None of us can afford to be apathetic while these things are happening. Imagine what Lincoln would say about legalized vigilantism.

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Freedom

Alan Zendell, August 31, 2021

One of the first things we Americans learned as children was that we lived in “the land of the free and the home of the brave.” We heard it repeatedly until it became a mantra, and like all mantras, slogans, and mottos, the individual words lost their meanings over time, replaced by generalized notions that can be dangerous – dangerous because there is no such thing as complete freedom, and bravery has nothing to do with chest beating and mob rule. We do not have the inalienable right to do anything we please regardless of how it impacts other people.

When we first encountered laws and rules, we pushed back. We didn’t like being told what we could and couldn’t do, we resented authority. And when we disobeyed our parents and teachers or broke rules we were presented with the dichotomy of civilization versus the jungle. The jungle became a metaphor for living free, while discipline and regulation meant being civilized. Like most overgeneralizations, they represented a false choice.

When we were kids, jungles looked like fun. With no parents, teachers, or police around, we could do whatever we wanted, swing from vines, make friends with animals, and never have to be concerned with earning a living, getting sick, or having to follow rules. Except that real jungles aren’t like that. Everything living in a jungle has natural enemies and predators. Every living creature is constantly on its guard to avoid being eaten by something bigger, stronger, or deadlier.

We learned over several millennia that to survive we had to form communities and cooperate. Cooperation meant accepting restrictions on our freedoms in exchange for mutual security, a dependable supply of food, and protection against everything trying to kill us. But something went terribly wrong. We didn’t all define freedom the same way, and many of us forgot or never learned that with freedom comes responsibility and a very real cost.

Freedom is one of the most abused words in our language. I will never forget President Lyndon Johnson telling us that we had to defend “the freedom-loving people of South Vietnam” against the Communist menace, when all most of them wanted was to be free of colonial interference. A generation later, we were told that Iraqis wanted to be free of oppression by Saddam Hussein, Afghans were desperate to be free of their religious autocracy, and Iranians wanted to be free of the tyranny of Sharia law. After hundreds of thousands of casualties, wasting trillions of dollars, and creating serious divisions at home over decades of wars, it turned out that all those oppressed people had no interest in what we called freedom.

We’ve learned a painful lesson about trying to define freedom for other nations. And now we’re faced with what may be a worse issue within our own borders. Politics and craven, incompetent leaders have so distorted our notions of freedom that we are now at war with ourselves. Somehow, the Second Amendment to our Constitution, which was intended to prevent tyranny by an autocratic central authority over states’ rights, has for many, come to mean armed intimidation of elected authority. Worse, freedom has come to mean the right to be ignorant and ignore science.

Thus, we allow those who would profit from our foolishness to convince us that no one has the right to tell us we can’t pollute our air and water, permit our planet to become uninhabitable or protect each other against a raging pandemic. When nearly half our citizens consider essential public health measures unconstitutional restrictions of their personal freedom, something is terribly wrong in our country. When an elected state representative in Georgia can actively, openly agitate for continued armed insurrection against state and local governments because he believes mask mandates to protect our children in school and vaccination against a deadly disease represents tyranny, we ought to be seriously questioning our future.

Donald Trump and his patrons at Fox News proved that when a vocal minority of our citizens abandons critical thinking and adopts intellectual laziness as a way of life, (think Facebook,) they can be propagandized and instigated to believe that anyone who thinks differently from them is their enemy, and that any trouble or problem they face is the fault of “those people.” If you’re not sure who those people are, substitute every minority or dark-skinned immigrant or anyone else ignorant people can be convinced to hate.

The first two years of the Biden administration may well define our future. If the forces of decency and rational behavior are allowed to succumb to the madness unleashed by Trump and his supporters, we are in danger of destroying everything we’ve spent two hundred fifty years building.

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