From the vexing matters files: The subjective nature of the rule of law

“This is an attempt to describe generally the process of legal reasoning in the field of case law, and in the interpretation of statutes and of the Constitution. It is important that the mechanism of legal reasoning should not be concealed by its pretense. The pretense is that the law is a system of known rules applied by a judge; the pretense has long been under attack. In an important sense legal rules are never clear, and, if a rule had to be clear before it could be imposed, society would be impossible. The mechanism accepts the differences of view and ambiguities of words. It provides for the participation of the community in resolving the ambiguity by providing a forum for the discussion of policy in the gap of ambiguity. On serious controversial questions it makes it possible to take the first step in the direction of what otherwise would be forbidden ends. The mechanism is indispensable to peace in a community.” -- Former US Attorney General, Edward Levy,  An Introduction to Legal Reasoning, 1949

“The lives of the richest people in the world are so different from those of the rest of us, it's almost literally unimaginable. National borders are nothing to them. They might as well not exist. The laws are nothing to them. They might as well not exist.” -- Sociologist Brooke Harrington commenting on how many extremely wealthy people treat the rule of law, NPR interview, 2019

“Well, when the president does it that means that it is not illegal.” -- Richard Nixon 

NPR aired an interview yesterday (that I cannot find today) with a district attorney (DA) in Texas. The DA publicly stated he will not enforce Texas anti-abortion laws in his district. He claims that as a DA, he has discretion to decide what cases and laws to prosecute. NPR then spoke with a legal expert in Texas who concurred that a DA does have the discretion to decide what cases to prosecute and what to drop. So at least in Texas, the only obligation a DA has once police or other law enforcement presents evidence of a crime is to review the evidence and then decide whether to prosecute or not. 

The expert pointed out that it is not uncommon for DAs nationwide to not prosecute selected crimes. Sometimes a crime is not prosecuted because much or most of the community opposes the law. Sometimes it takes too much time and resource to prosecute a hard to prosecute or complex crime. That’s especially true for complex financial crimes and some (most?) white collar crimes where plausible deniability makes getting a criminal conviction impossible or almost impossible. 

The Texas DA said his concern was justice. In his opinion anti-abortion laws are an injustice. He risks his job to take that stand. Although I agree that anti-abortion laws are an injustice, what about the rule of law? 

The United States Attorney General (AG) also has discretion to enforce a law and to prosecute a crime. T**** publicly said that he admired an AG who protected the president from the law. He argued that AG Eric Holder protected Obama from prosecutions, which he saw as a good thing. At this point, AG Merrick Garland has chosen to not prosecute T**** for multiple instances of obstruction of justice, each instance being a separate felony (discussed here in 2019). The choice is up to Garland. Maybe Biden could order Garland to prosecute T****, but at this point that seems highly unlikely.

Both democracy and tyranny can share traits. Governments of both can be bigoted, corrupt and/or incompetent. Two major things distinguish them. One is reasonable compromise. Democrats have to compromise, but tyrants don’t. The other is the rule of law. In democracy, the law is above everyone. So at least in theory, even the elites and leaders are subject to the law. In an authoritarian state, the dictator or plutocrats are the law. They say what the laws is and they apply it equally or unequally when it suits them.

Arguably inherent in the law in a democracy compared to the law in an authoritarian state is a meaningfully higher level of objectivity. For dictators, the law tends to be what the dictator has the power to say it is. Nearly absolute power can inject nearly absolute subjectivity into laws if the dictator or plutocrat is so inclined.

Much as one might agree with the sentiment of the Texas DA, he arguably undermines the rule of law, which is arguably too weak already. Is it too subjective to give DAs that much discretion? In essence, broad discretion gives them power to ignore and abuse law in addition to tailoring justice to reasonably deal with unique situations or complexities. Some discretion is always bad. Sometimes it is good. It depends on how it is used. Regardless of good or bad intent, there can be a lot of subjectivity in how discretion is exercised.

It feels as if the law in America has become dangerously subjective. Radical right American authoritarians have come to understand and embrace how much the law can be bent or abused to undermine and subvert democracy. The more one considers this, the more one some will come to understand that subjectivity and discretion can be a powerful tool in the war against democracy and the rule of law.

Qs: Should the DA in Texas not prosecute anti-abortion law violations in his district? Should he prosecute, but try to minimize the penalties? Is at least some discretion necessary for law enforcement and/or judges because, as AG Levy wrote in 1949, “in an important sense legal rules are never clear, and, if a rule had to be clear before it could be imposed, society would be impossible”?  

Key points the 1/6 Committee hearing brought out yesterday

Various sources are summarizing the hearings from yesterday. Much of this has been made public before, but the 1/6 committee did a splendid job of honestly telling the tale of what the ex-president did and what his intent was during a critical three hour period on 1/6.  

A summary of some of the key points could be helpful for context and memory.

• After all of T****’s lawsuits alleging a fraudulent election failed in the courts, he planned an a coup for 1/6 as another attempt to stay in power by simply usurping the election outcome. 
• Republicans in congress initially condemned T**** and his coup attempt, but later defended him and justified the coup attempt in the second impeachment. That is solid evidence of the Republican Party’s moral collapse. I call it moral rot. Prominent Republicans like Kevin McCarthy went from initial anger to sniveling obsequiousness justified by crackpot justifications that would convince no one except hyper-partisans. 
• T**** knowingly refused to call off the mob of traitors. Although he tried to hide, allowing no photos or other means of tracking his behavior during the critical three hours of violent insurrection, the evidence is rock solid that he knew he could have called it off. T**** intentionally and knowingly refused to call the mob off.
• The evidence presented yesterday made it undeniable that T**** intended to subvert the election. Instead of calling the mob off, he was calling Republican senators and asking them to delay certifying the vote. 
• During the coup attempt, T**** posted a couple of Tweets that he knowingly intended to further inflame the mob of traitors to get them to stop the vote certification. He specifically targeted Mike Pence and the mob responded to his incitement once they became aware of it.  
• The evidence presented yesterday made it undeniable that T**** supported the traitors on 1/6, seeing them as justifiably angry and justifiably attacking the capitol because of his lie that the election was stolen.
• Only after it became clear that his coup attempt was going to fail, the ex-president called it off, praising the traitors as people he loved and “patriots.”  T**** undeniably saw his violent coup attempt as justified and patriotic. Once law enforcement was mobilizing to shut the insurrection down, T**** reluctantly and half-heartedly asked the violent mob to leave.
• Republicans in congress refused to seriously investigate the 1/6 coup attempt by an independent commission. That created situation where there would be no serious congressional or Department of Justice[1] investigation. That would have left the evidence forever buried or dribbling out in a complex story that few average people would ever piece together on their own. Democrats wanted an independent commission, but Republicans rejected the idea. That Republican Party refusal left Nancy Pelosi (D-Calif.) the choice of setting up a bipartisan panel of House members or leaving T**** free to lie about 1/6 without a counter narrative available to the American people.

Sources:

https://thehill.com/homenews/administration/3570067-five-takeaways-from-thursdays-jan-6-hearing/

https://thehill.com/homenews/house/3570056-trump-accused-of-dereliction-of-duty-in-dramatic-jan-6-hearing/

https://apnews.com/article/capitol-siege-panel-hearing-3e3dc618ed8cee37147cf6a792c0c0fa

https://www.washingtonpost.com/opinions/2022/07/21/jan-6-hearing-trump-behavior/

https://www.washingtonpost.com/opinions/2022/07/22/jan-6-hearing-revelations-trump-inaction/

https://www.washingtonpost.com/national-security/2022/07/22/trump-election-is-over/

https://www.cbsnews.com/live-updates/january-6-hearing-trump-actions/

https://www.bbc.com/news/world-us-canada-62263279

Footnote: 

1. The evidence I am aware of so far indicates that the House 1/6 Committee investigation and the evidence it is publicly showing prodded the DoJ into maybe taking a more serious look at what happened than it had previously. Before the 1/6 Committee hearings started, it wasn't obvious to me that the DoJ was going to do anything about it. If there was a major DoJ investigation before the committee made T****’s coup attempt impossible to ignore, I am unaware of it.

A comment on incompetent, life-threatening Republican anti-abortion laws

The GOP is mindlessly hell-bent on inflicting major social engineering on American government, society and commerce. It is in a raging frenzy to do it to us. Simple, black and white thinking and policy choices dominate childish Republican thinking in a complex, nuanced adult world of shades of gray. 

That is not only grossly incompetent, it is evil because it predictably will kill some people. Fascist GOP abortion laws exemplify its brainless savagery. The Washington Post writes:

Hospitals and their lawyers are being forced to interpret statutory terms that don’t correspond to medical practice and language. These laws often demand a degree of certainty doctors can’t provide. Katie McHugh, an obstetrician-gynecologist in Indiana, tells me doctors must now tell patients that a given procedure is “what she would medically recommend,” but then inform the patient she can’t receive that treatment in her state. In other words, doctors in some states are becoming travel agents for abortion services.

In many states, the substantial risk to mental health (e.g., depression, suicidal ideation) might not “count” as a valid exception to abortion bans. And are the risks associated with traveling long distances for women determined to seek an abortion factored into the calculation? Definitive answers are nonexistent.

Most egregiously, McHugh adds, these laws do not envision chronic conditions. A pregnant woman at risk of liver failure, for example, may face debilitating conditions or even death down the road if she gives birth. But if state law requires imminent risk of death to perform the procedure, she may have to carry the pregnancy to term against her wishes and doctor’s advice. This is barbaric.

The blood of every pregnant woman who needlessly dies from Republican Party incompetence and stupidity is on the hands of all Republicans and their supporters. That includes all who vote for Republicans. They are ice-cold killers. 

Q: Is assigning blame to Republicans and supporters for needless (avoidable) deaths, and seeing them as “ice-cold killers”, reasonable and justifiable? Or, is it impossible to draft laws that more effectively deal with the ambiguities and complexities inherent in this matter, thereby reducing ambiguity and the attendant increased risk of death?

More evidence of Republican radical right anti-democratic authoritarianism and mendacity

Although we all knew it in our guts based on the evidence available at the time, more empirical evidence has come to light to buttress what our guts already knew. Good 'ole guts. Sometimes, they are right.[1] The New York Times writes:

New Findings Detail Trump Plan to Use Census for Partisan Gain

A new trove of memos and emails suggests that the plan to add a citizenship question to the 2020 census aimed to cause an undercount that would favor Republicans.

A new stash of documents obtained by Congress has confirmed that the Trump administration pushed to add a citizenship question to the census to help Republicans win elections, not to protect people’s voting rights, a House committee report concluded on Wednesday.

The documents provided the most definitive evidence yet that the Trump administration aimed to exclude noncitizens from the count to influence congressional apportionment that would benefit the Republican Party, the report concluded, and that senior officials used a false pretext to build a legal case for asking all residents of the United States whether they were American citizens.

Former Commerce Secretary Wilbur Ross had said in congressional testimony that the government decided to add the question because it required more accurate data on citizenship to enforce the Voting Rights Act of 1965. But the Supreme Court in June 2019 ruled that the rationale “appears to have been contrived,” and a week later the Trump administration abandoned its quest to ask about citizenship in the 2020 census.

“For years, the Trump administration delayed and obstructed the oversight committee’s investigation into the true reason for adding a citizenship question to the 2020 census, even after the Supreme Court ruled the administration’s efforts were illegal,” said Representative Carolyn B. Maloney of New York, chairwoman of the committee.  

“Today’s committee memo pulls back the curtain on this shameful conduct and shows clearly how the Trump administration secretly tried to manipulate the census for political gain while lying to the public and Congress about their goals,” she said.

Shameful conduct? That’s inexcusable wuss. 

If what Maloney said is true, how about calling it illegal because it is illegal? Why do Democrats not have the guts to call a liar a liar, a lawbreaker a lawbreaker, a criminal a criminal, or a traitor a traitor? WTF is their effing problem with speaking blunt truth? Do Dem elites really think shying away from and softening truth that is inconvenient for fascist Republican thugs and liars going to get some benefit for them or the country? If that is what they are thinking, if one assumes that they are thinking at all, they and their guts are just plain wrong.

Our guts are just fine, but Democratic Party leadership guts are broken.

Footnote: 

1. When it comes to divining the rhetoric and behavior from the always mendacious, fascist Republican Party elites, our guts are right about 97% of the time. Their denials and assertions of innocence are overwhelmingly lies, slanders and bullshit.

An exercise in psychology

I was gonna say “an exercise in futility,” and I know we’ve beaten this dead horse enough times to the point of rigor mortis, even petrification, but I gotta ask one more time…

Why do people still support Trump?

Take a walk on the wild side and put yourself in the mindset of a Trump supporter.  Explain that kind of "Trump loyalty" to me like I’m a five-year-old (a la Denzel Washington in “Philadelphia”).  Because I really don’t get it.  It’s foreign to me.

Thanks for posting and explaining it to me.

Republican climate change demagoguery

The New York Times writes:

Delay as the New Denial: The Latest Republican Tactic to Block Climate Action

But on Capitol Hill this week, Republicans were warning against rash action in response to the burning planet.

“I don’t want to be lectured about what we need to do to destroy our economy in the name of climate change,” said Senator Lindsey Graham, Republican of South Carolina.

One Democrat, Senator Joe Manchin III of West Virginia, last week blocked what could have been the country’s most far-reaching American response to climate change. But lost in the recriminations and finger-pointing is the other side of the aisle: All 50 Republicans in the Senate have been as opposed to decisive action to confront planetary warming.

Few Republicans in Congress now outwardly dismiss the scientific evidence that human activities — the burning of oil, gas and coal — have produced gases that are dangerously heating the Earth.

But for many, denial of the cause of global temperature rise has been replaced by an insistence that the solution — replacing fossil fuels over time with wind, solar and other nonpolluting energy sources — will hurt the economy.

On the one hand, it is encouraging that America’s fascist, staunchly pro-pollution, pro-global warming Republican Party no longer outwardly dismisses the scientific evidence that human-generated pollution is causing the planet to burn up. That's a good thing. Progress has been made! Not long ago, they all denied that climate change was real and that humans had little or nothing to do with it. Some very powerful Republicans publicly claimed it was God’s will and humans should not and/or could not interfere with his plans.

But on the other hand, the fascists are hell-bent on not doing a damn thing about it. They will continue to successfully block all efforts to try. There is just too much damn money and power in not doing anything about it.

As usual, fascist Republican demagoguery relies on the same propaganda and lies tactics that got us into this mess. They ignore the cost of not doing anything, an intentional lie of omission. They claim trying to do anything about it will destroy the economy, a lie of commission.

As a reminder this is short blast of blithering nonsense the only thing that fascist Republican elites had to say about climate in the lying crackpot Rick Scott’s 11 point plan to wreck America:

The weather is always changing.[1] We take climate change seriously, but not hysterically. We will not adopt nutty policies that harm our economy or our jobs.

That’s it. That is literally all the GOP has to say about it. That’s worse than pathetic. It’s evil.

For the pro-pollution party, there is honest seriousness about climate change. The seriousness is about blocking efforts to do anything about it. That would be hysterical. That is exactly what Scott, the rest of the GOP elites, wealthy pro-pollution Republican Party donors and their propagandists are saying to the American people. There is no subtlety about this. The GOP and big polluters are hell bent on turning Earth into literal hell as best they can because they are making a hell of a lot of money doing it. With that money comes serious power.

This is all about money and power for corrupt, callous fascist elites and nothing but money and power.

Footnote: 

1. Weather is not climate. Weather reflects climate. Fascist polluters put that statement in there to con people into a belief that even if it is real, climate change is no big deal. This is called propaganda. It is intended to deceive, distract and confuse the public.