An opinion on Trump’s legal fate: But is it already too late?

Staff reporter Franklin Foer at The Atlantic writes:

THE INEVITABLE INDICTMENT OF DONALD TRUMP

Merrick Garland hasn’t tipped his hand, but it's clear to me that he will bring charges against the former president. 

As an appellate judge, Merrick Garland was known for constructing narrow decisions that achieved consensus without creating extraneous controversy. As a government attorney, he was known for his zealous adherence to the letter of the law. As a person, he is a smaller-than-life figure, a dry conversationalist, studious listener, something close to the opposite of a raconteur. 

And as the nation’s chief law-enforcement officer, he is a hyper-prudential institutionalist who would like nothing more than to restore—quietly and deliberately—the Justice Department’s reputation for probity, process, and apolitical dispassion.

But this is what I believe he is preparing himself to do.

I have been observing Garland closely for months. I’ve talked with his closest friends and most loyal former clerks and deputies. I’ve carefully studied his record. I’ve interviewed Garland himself. And I’ve reached the conclusion that his devotion to procedure, his belief in the rule of law, and in particular his reverence for the duties, responsibilities, and traditions of the U.S. Department of Justice will cause him to make the most monumental decision an attorney general can make. 

But I believe, if the evidence of wrongdoing is as convincing as it seems, he is going to indict Trump anyway.  

In the case of Donald Trump, the prosecutor is Merrick Garland and discretion would allow him to decide that an indictment is simply not worth the social cost, or that the case is strong but not strong enough. Garland’s critics fret that when confronted with this moment, his penchant for caution will take hold.  

With the investigation of Trump, the legitimacy of the judicial system is at risk. Of course, the MAGA set will never regard an indictment of their leader as anything other than a sham. But the perceptions of the rest of the country matter too. .... Indicting the candidate of the opposing party, if it occurs, should feel reluctant, as if there’s no other choice.  

I was surprised he would resist the term [institutionalist]. I think he wanted me to understand that he is alive to the perils facing democracy—and isn’t naïve about what it will take to defeat them. Norms alone are not enough to stop a determined authoritarian. It wasn’t quite a reversal in his thinking; radicalizing Merrick Garland would be impossible. But it was an evolution. His faith in institutions had begun to wobble.  

With his optimism bruised, and his heightened sensitivity to the imminent threats to democracy, he’s shown a greater appetite for confrontation. There is no sharper example of this than his willingness to spar with Trump over the sensitive documents stashed at Mar-a-Lago.  

The deadline for indicting Trump is actually much sooner than the next Inauguration Day. According to most prosecutors, a judge would give Trump nearly a year to prepare for trial, maybe a bit longer. That’s not special treatment; it’s just how courts schedule big cases. 

The excruciating conundrum that Garland faces is also a liberating one. He can’t win politically. He will either antagonize the right or disappoint the left. Whatever he decides, he will become deeply unpopular. He will unavoidably damage the reputation of the institution he loves so dearly with a significant portion of the populace.

Faced with so unpalatable a choice, he doesn’t really have one. Because he can’t avoid tearing America further apart, he’ll decide based on the evidence—and on whether that evidence can persuade a jury. As someone who has an almost metaphysical belief in the rule book, he can allow himself to apply his canonical texts.

That’s what he’s tried to emphatically explain over the past months. Every time he’s asked about the former president, he responds, “No one is above the law.” He clearly gets frustrated that his answer fails to satisfy his doubters. I believe that his indictment of Trump will prove that he means it.

Foer’s reasoning makes sense, but is it right? No matter what choice Garland makes, one side will dislike or hate his decision. Foer understands the propaganda bonanza that Trump and the radical right propaganda Leviathan would create and unleash on the American people if there is an indictment. That is something Garland abhors. Foer foresees that a trial of Trump (i) would turn into a “carnival of grievance” and “a venue for broadcasting conspiracy theories about his enemies,” and (ii) be a “flash point for an era of political violence” with protesters and counter protesters outside the court, possibly leading to street violence. Social damage will be enormous. In my opinion, Foer is correct on all counts. 

But will Garland indict Trump? Personally, it does not feel that way based on Garland’s record to date. But if Foer is right about what drives Garland, he should be be and probably is right. 

If Foer is right, will it be too little too late to indict, try and convict Trump? It feels that way to me, but I could be wrong. The poison and horrifying autocratic-theocratic extremism that Trump unleashed on American society and the Republican Party is an uncorked genie. It is toothpaste out of the tube. But that assessment could also be wrong. And, if Trump is exonerated, he would be politically invincible. Democracy, the rule of law and secularist pluralism would fall to some form of cruel autocratic, plutocratic, brass knuckles capitalism and Christian theocratic kleptocracy.

Time is running out, or already has

As Foer points out, time for Garland to decide is running out. In my opinion, it may already be too late. If Garland indicts this month and the court gives Trump about one year to prepare, the trial would start in Oct. or Nov. 2023. Trump, as usual, would do everything in his power to delay and derail the court case, all the while whipping up his loyal base with faux grievances, lies and slanders. If a Republican is elected president in Nov. 2024, the lawsuit would almost certainly be dropped soon after the new president would be sworn in on Jan. 20, 2025. That would forever be the end of justice and the rule of law for Trump. He would forever be untouchable. And, democracy and the rule of law would continue their fall.

If that analysis is right, maybe Garland’s best choice is to not indict Trump and pray that democracy, inconvenient truth, secular pluralism, the rule of law and civil liberties can at least partly survive and remain more or less relevant. Either way, the rule of law and the DoJ and the rule of law will take another major hit in public trust.

At least for democracy and the rule of  law, the situation probably is a lose-lose. The American public is polarized and distrustful because poisonous dark free speech has deceived and captured tens of millions of minds.

News bits: Fibbing, COVID and drug prices

The ex-president aggressively fibbed --

no consequences are on the horizon 

CNN writes:

Newly released emails debunk Trump and allies’ attempts to blame the GSA for packing boxes that ended up in Mar-a-Lago. .... The email exchange between GSA officials and [Trump aide] Harrison is one of more than 100 pages of emails and documents newly released by the GSA that debunk claims from Trump and his allies that the government agency is to blame for packing the boxes containing classified documents that were later recovered by the FBI during the search of his Mar-a-Lago resort in August.

A spokesman for Trump did not directly address how these emails dispute claims made by the former president and allies, and instead attacked the Biden administration.

“A routine and necessary process has been leveraged by power-hungry partisan bureaucrats to intimidate and silence those who have dared to support President Trump and his America First agenda,” said Trump spokesman Taylor Budowich. “Why? Because Democrats have done nothing to deliver for the American people and they are left scrambling to fabricate a new witch-hunt to distract from their abject failures.”

That raises a thing or two. One, if Trump runs for president again in 2023 and 2024, he will be the Republican nominee. Most rank and file Republicans will vote for him despite his lies, crimes, treason and all the crap he has pulled. Most Republican elites will support their nominee. What does that tell you about most (~97% ?) of the GOP, e.g. pro- or anti-democracy, pro-or anti-truth, pro- or anti-rule of law, etc.?

Another thing, does anyone notice how Trump defends himself with blatantly obvious deflections, but that makes no difference to most Republicans? Most would still vote for and defend him if he runs for office again. Most who would not support Trump have been RFINO hunted out of the Republican Party.

COVID is partisan

New research from the National Bureau of Economic Research indicates that COVID deaths are higher among Republicans. The data was based on mortality data from 2018 to 2021 in Florida and Ohio. NBER writes:

Political affiliation has emerged as a potential risk factor for COVID-19, amid evidence that Republican-leaning counties have had higher COVID-19 death rates than Democrat-leaning counties and evidence of a link between political party affiliation and vaccination views. .... We estimate substantially higher excess death rates for registered Republicans when compared to registered Democrats, with almost all of the difference concentrated in the period after vaccines were widely available in our study states. Overall, the excess death rate for Republicans was 5.4 percentage points (pp), or 76%, higher than the excess death rate for Democrats. Post- vaccines, the excess death rate gap between Republicans and Democrats widened from 1.6 pp (22% of the Democrat excess death rate) to 10.4 pp (153% of the Democrat excess death rate). The gap in excess death rates between Republicans and Democrats is concentrated in counties with low vaccination rates and only materializes after vaccines became widely available.

That is more evidence that COVID vaccines work. It is also evidence that cult loyalty is killing Republican partisans more than necessary. 

Republicans want to repeal drug price controls

The Democratic bill that empowered Medicare to negotiate drug prices is being attacked by some Republicans. They claim it will slow drug development and/or reduce availability of existing drugs. Both claims are lies, including lies of omission. Florida Politics writes:

In anticipation of Midterm Election results, U.S. Sen. Marco Rubio has filed for a do-over of the legislation widely expected to reduce out-of-pocket drug costs for patients and lower Medicare costs.

Rubio has joined with fellow Republican U.S. Sens. James Lankford, Mike Lee and Cynthia Lummis in introducing the Protecting Drug Innovation Act that would roll back the feds’ authority to negotiate, set and control drug prices under Medicare.

“Democrats’ price controls will hurt Floridians,” said Rubio’s statement that his office released Friday. “There will be less innovation, which means life-saving cancer drugs may not be developed. There will be less production, which means life-sustaining insulin may be harder to find.”

With Rubio’s name on new legislation that would mean taking off the cap that limited seniors’ out-of-pocket drug costs to $2,000 a year, his challenger seized on the opportunity. Democratic U.S. Rep. Val Demings, running to unseat Rubio, released a statement Friday on the bill.

The Republican argument here is that lower drug prices will stop or slow development of new drugs. That may be true to some extent, but so what? First, most new drugs these days are me-too variants of drugs already on the market. When one looks at cost-benefit for new drugs, it is usually crappy. 

Second, if the private sector does not want to innovate without outrageously high profit margins, then let new drugs come from academic research. That would slow things down, but that's what we would have to live with. So far, one can strongly argue that the private sector is a failure in health care because the profit motive corrupts the whole health care sector, from drug companies, to insurance companies to actual health care providers. Everyone is chasing dollars first and foremost. Patients and the cost burdens on patients and/or taxpayers are not very important. We get poor value for our money

Another point: The price and availability of insulin has little to do with negotiated drug prices. There would still be profit in negotiated insulin prices, just not outrageous profit. Insulin, like lots of old but still effective drugs, has been on the market for decades. The insulin molecule as a drug is not going to change. There is nothing left to innovate. Despite no innovation, for-profit drug drug companies jacked up the price of insulin far more than inflation would dictate. That was greed pure and simple. Negotiated pricing would keep callous capitalist greed in check, but not affect the drug in any other way. 

So, if profits from negotiated drug are not enough for the private sector, then the government should step in a do the job the private sector is too greedy to do.

As usual, pro-business, anti-consumer Republican elites are lying about why they do what they do. In return, a grateful drug industry will dump cash into the politician’s accounts in return for their services in defense of the indefensible.

One photo shows how quickly things change when religious zealots take over

 

When someone showed me this photo, I was asked where it was. I never would have guessed. No one then thought things would change so drastically so quickly:

Here is an image from Iran of a woman cutting her birthday cake in 1973, 5 years before the Islamic Revolution there. Just wanted to point out how things can change when the government gets religious.

By the way, if you want to see more pictures of life in Iran before the Islamic Revolution, click here. The photos are indistinguishable from others in any American city from that time period. Just please don’t tell me it can’t happen here.

https://www.dailykos.com/stories/2022/10/8/2127729/-One-photo-shows-how-quickly-things-change-when-religious-zealots-take-over

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A history bit and whatnot

History bit: Bring on the lawyers

Owlcation writes:

Arabella Mansfield accepted a position at Simpson College during the 1860s to teach. The college was located in Indianola, Iowa. After a year of teaching at Simpson College, she went to Mount Pleasant to attend Iowa Wesleyan and get her master's degree. This was a time when Arabella would spend hours in her brother's law office reading cases and legal publications. She had a desire to take the Iowa bar exam. There was a state law limiting those who could take the bar exam to only white males. Arabella took it anyway. She got high scores. After winning a court case on the matter, Arabella Mansfield became the first female in the United States to be a lawyer. As a result of this case, Iowa amended its attorney licensing statutes. It was the first state to accept the right of women and minorities to practice law as members of its bar.

Arabella Mansfield

From the fall of democracy files: 

Sheriffs won't enforce laws they dislike

The NYT writes:

Another Challenge to New York’s Gun Law: Sheriffs Who Won’t Enforce It

Some say the measure, which was passed after a Supreme Court opinion, ignores common sense, the Second Amendment and the way people live outside big cities.

Robert Milby, Wayne County’s new sheriff, has been in law enforcement most of his adult life, earning praise and promotions for conscientious service. But recently, Sheriff Milby has attracted attention for a different approach to the law: ignoring it.

Sheriff Milby is among at least a half-dozen sheriffs in upstate New York who have said they have no intention of aggressively enforcing gun regulations that state lawmakers passed last summer, forbidding concealed weapons in so-called sensitive areas — a long list of public spaces including, but not limited to, government buildings and religious centers, health facilities and homeless shelters, schools and subways, stadiums and state parks, and, of course, Times Square.

“It’s basically everywhere,” said Sheriff Milby, in a recent interview in his office in Wayne County, east of Rochester. “If anyone thinks we’re going to go out and take a proactive stance against this, that’s not going to happen.”  

On Thursday, a U.S. District Court judge blocked large portions of the law, dealing a major blow to lawmakers in Albany who had sought to blaze a trail for other states after the Supreme Court in June struck down a century-old New York law that had strictly limited the carrying of weapons in public. Between the court challenge and the hostility of many law enforcement officers, New York’s ambitious effort could be teetering.

One question that raises is why is it possible for a civilized country, e.g., Canada, the UK, Japan or Australia, to survive with gun laws and a whole lot less gun violence, but not in the US? My guess most of it is caused by political corruption by the gun industry and the rigid, radical right gun dogma that has grown out of decades of pro-gun propaganda and lies.

Climate change and monsoons

The NYT writes:

Now, however, across South Asia, climate change is making the monsoon more erratic, less dependable and even dangerous, with more violent rainfall as well as worsening dry spells. For a region home to nearly one-quarter of the world’s population, the consequences are dire.

Areas in blue show the current historical monsoon pattern and pink is the pattern emerging from climate change.

The affected areas are huge. Hundreds of millions of people are going to be displaced and hundreds of millions more will see their standard of living fall. This is going to destabilize that entire region of the planet.

Those feisty Libertarians - in a pickle again

Trump’s poison politics spreads and kills

The Hill writes:

Only a few years after its greatest triumph, the Libertarian Party is collapsing, torn apart by an insurgency of alt-right sympathizers with racist tendencies. Libertarianism, the idea that state power must be absolutely minimized, relies on ideas of individual rights that seem flatly inconsistent with racism. And yet libertarian rhetoric has always had powerful attractions for those who wanted to resist racial equality. How is that possible?

There is in fact a connection, but it is one of psychology and political history rather than logic. 

In May, the party was taken over at its national convention by the so-called Mises Caucus, a far-right group, some of whose members have been associated with racist and antisemitic ideas. The caucus is named after the libertarian economist Ludwig von Mises, whose philosophy was pretty crude but who firmly condemned racism.

On Martin Luther King Jr. Day this year, the Libertarian Party of New Hampshire tweeted (in a later deleted post) that “America isn’t in debt to black people. If anything it’s the other way around.” Caucus members have called for violent repression of antifa and Black Lives Matter protesters. The new leadership’s first and most prominent decision was to remove from the party platform language declaring, “We condemn bigotry as irrational and repugnant.”

The crackup is in part the result of crass political machinations. The insurgents are funded by donors who have been close to former President Trump, suggesting that the takeover is part of a coordinated Republican stratagem to destroy a party that has been draining away Republican votes. If Trump had gotten every Libertarian vote in 2020, he would have won. The chairman of the New Mexico Libertarian Party wrote that the leadership has “adopted messaging and communications hostile to the principles for which the Libertarian Party was founded, serving no purpose other than to antagonize and embarrass.” That may indeed be the purpose. Battles for control of the state party are also happening in Virginia and Massachusetts.

One can just see the poison creeping into all corners of American conservatism. This is another warning about what is happening to conservative American politics. Radical right bigotry, hate, mendacity and intolerance are killing civility, inconvenient truth and tolerance. America is moving toward its own corrupt, radical right theocratic version of fascism.