Author: wrongologist

Reform the Supreme Court, Part II

The Daily Escape:

Winter at Bryce Canyon NP, UT – January 2023 photo by Michael Andrew Just

The Supreme Court (SCOTUS) has a legitimacy crisis. Put simply, many people no longer think the Supreme Court can be trusted to uphold Constitutional rights or follow judicial norms. This is the result of the Conservative supermajority, driven by its partisan agenda that is increasingly hostile to precedent and separation of powers.

The Conservative supermajority threatens that it will not observe Constitutional guardrails. As an example, our democracy depends on citizens having a meaningful right to vote. Right now, that’s in jeopardy because the Court has upheld voter suppression laws and has provided for partisan gerrymandering to continue.

Also, the Conservative supermajority has taken away a woman’s control over her body. It has also taken direct aim at the tradition of separation of church and state.

SCOTUS ignores its own internal check of stare decisis by writing sweeping decisions seemingly intended to foreshadow future decisions that could further endanger American liberty as we know it.

So, it’s time to reform the Court by building better checks and balances. The power to make these changes sits primarily with Congress. So if reform is to happen, reformers are going to have to control both Houses of Congress.

Let’s talk about some of the options for reform.

I. Expanding the Court

This means increasing the number of justices. The number of justices isn’t set by the Constitution, so Congress can change it at any time, and has done so seven times. The first Supreme Court had only six justices.

Given that Congress can and has altered the size of the Court, it could do that again. One idea is to add two justices in every presidential term. Alicia Bannon of the Brennan Center for Justice wrote an analysis looking at this idea. Basically, it would mean every president gets to appoint two justices, regardless of how many justices wind up serving on the court.

One potential issue is that SCOTUS could regularly have an even number of justices, which isn’t unprecedented, but it makes the possibility of split decisions more likely. There’s also the possibility that it could make presidential elections even more of a proxy vote for Supreme Court justices.

The challenges are that this change would require 60 votes in the Senate to overcome a filibuster. And since Republicans control the House, it’s unlikely to happen soon.

II. Ending life tenure

The big upside to this proposal is that it is much less dependent on justices either retiring or dying. It could also help slow the increasing push to nominate younger justices who could serve on the court for longer.

Prior to 1970, Supreme Court Justices served an average term of 14.9 years. Post 1970, they’ve served an average term of 26.1 years. But the five most recently appointed Supreme Court Justices to leave the court served an average of 27.5 years.

Today, most countries in the world have limited judicial tenure, either through mandatory retirement ages or fixed terms. In the US, only one state supreme court (RI) allows for life tenure.

Properly implemented, term limits could give each president the opportunity to appoint the same number of Supreme Court justices each term. Thus, reducing partisan gamesmanship around individual confirmations while making the Court more representative.

One suggestion from the American Academy of Arts and Sciences calls for an 18-year term with regular appointments made every two years to replace outgoing justices. This would not only limit life tenure, but it would also guarantee every president a stable number of two appointments, assuring a reliable translation of voters’ political will into the federal judiciary.

III. Limiting the Court’s jurisdiction

Congress can limit the kinds of cases that can be appealed to the Supreme Court. Along with the ability to define the jurisdictions of lower courts, this “jurisdiction stripping” can be used to curtail the power of the Court overall. This also might force certain aspects of the law back to the political branches of government.

This happened recently under the Military Commissions Act of 2006, which tried to strip Guantanamo Bay detainees of the ability to appeal cases in federal courts. This could only become law if passed by both Houses of Congress and signed by the president.

IV. Create a binding code of ethics

The Supreme Court is the least accountable part of our government; it does not even have a binding code of ethics. We should institute a binding code of ethics, including rules to prevent conflicts of interest. We should adopt transparency measures, including live-streaming of oral arguments and decisions.

Of the above, term limits should be enacted, and a code of ethics should be established. Those are realistic goals. When the Constitution was adopted, the average life expectancy was 36 years, not today’s 80 years.

We need to forge a new consensus about SCOTUS. That requires us to do the political work of negotiating and renegotiating what the Court should look like, and how it should operate.

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Reform The Supreme Court

The Daily Escape:

Gold Creek Valley, WA – December 2022 photo by Erwin Buske Photography

“A body of men holding themselves accountable to nobody ought not be trusted by anybody.” – Thomas Paine

Welcome to 2023! It seems like a good time to think again about what’s worth fighting for. Paine valued freedom and despised oppression. In 2023, we could substitute the US Supreme Court (SCOTUS) for Paine’s original targets, which were Britain and King George III.

From Ed Walker: (emphasis by Wrongo)

“In case after case, SCOTUS has ignored the trial record, made up its own facts, reached out to take cases before a record can be made, ignored precedent, including precedent about rejecting precedent, invented new Constitutional “doctrines”, taking faked-up cases for the sole purpose of striking down actions…and delaying justice through the shadow docket.”

The Shadow Docket is designed to allow the Court to engage in administrative management of its calendar so that the Justices have sufficient time to rule on emergency applications.

On Dec. 27, we saw an example of the Court’s reactionary majority using the Shadow Docket to extend indefinitely a Trump immigration policy known as Title 42. Trump implemented Title 42 to exclude asylum seekers from the US because they might be carriers of coronavirus.

From Vox’s Ian Millhiser:

“That decision…is typical behavior from the Supreme Court — or, at least, is reflective of this Court’s behavior since a Democrat moved into the White House….It’s the latest example of the Court dragging its feet after a GOP-appointed lower court judge overrides the Biden administration’s policy judgments, often letting that one judge decide the nation’s policy for…an entire year.

And that delay may be the best-case scenario for the Biden administration — and for the general principle that unelected judges aren’t supposed to decide the nation’s border policy. “

Millhiser points out that SCOTUS’ response is very different from when Trump was in office. Back then, the Court frequently raced to reinstate Trump’s policies within days.

The Court’s Conservative Six no longer seem to care about the law or precedent. It’s become a policy-making body in service of Conservative’s religious and social agendas. We should expect It to continue down this path until we reform the Court.

Reform is necessary to protect the legislative prerogatives of Congress, and the prerogatives of the Executive. Oh, and to protect the individual liberties guaranteed by the Constitution.

The NYT’s Adam Liptak says that SCOTUS has been rapidly accumulating power at the expense of every other part of the government. He quotes Mark A. Lemley, a Stanford law professor’s article in The Harvard Law Review:

“The Court has taken significant, simultaneous steps to restrict the power of Congress, the administrative state, the states, and the lower federal courts. And it has done so using a variety of (often contradictory) interpretative methodologies. The common denominator across multiple opinions in the last two years is that they concentrate power in one place: the Supreme Court.”

Non-elected activist judges indeed.

We have historically entrusted courts with the task of determining which rights belong to the people, and the extent to which governments at all levels can exercise their Constitutional powers in controlling the people. We know that courts have always lagged behind the consensus of the American People on issues of rights. But before now, change has come, albeit slowly.

That ended with SCOTUS’ decision in Dobbs, where the Conservative Six ruled that women have no right to control their own bodies.

Earlier, they imposed their religious view that coaches are free to dragoon their players into worshiping the God of the coach’s choice, and that religious leaders are free to spread a pandemic, despite public health officials’ warnings.

Neither Congress nor the President have resisted SCOTUS’s power grab. They haven’t even taken the mild step of imposing ethical requirements on the Court. The other two branches have simply watched the Conservative Six operate in their self-declared role of Philosopher Kings. We now have a Supreme Court tinkering with the Separation of Powers, based solely on political and ideological preference.

As if to justify their power without restraint or oversight, Chief Justice John Roberts recently cited the myth of “three separate and co-equal branches of government.” But that isn’t what the Founders and Framers had in mind, and it isn’t what the Constitution says.

In fact, the judiciary was third in line of power and importance in the minds of the Framers of the Constitution. Article III clearly puts the Supreme Court under the control of Congress. Section 2 is unambiguous:

“[T]he supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”

The founders felt the judiciary was not co-equal. In Federalist 51, James Madison proclaims:

“[I]n republican government the legislative authority, necessarily, predominates.”

In Federalist 78, Alexander Hamilton writes:

“[T]he judiciary is beyond compare the weakest of the three departments of power.”

It’s important to remember that the power to overturn laws passed by Congress and signed by the President was not granted by the Constitution: it was taken by the Court onto itself in 1803 in the case Marbury v Madison.

Soon SCOTUS will rule in Moore v Harper. Moore hinges on a legal proposition known as the “independent state legislature theory.” The theory says that, when it comes to making state laws that apply to federal elections — from drawing congressional district lines, to determining the who-what-when-where of casting a ballot — only the state legislature itself has the power to set the rules.

Moore is an opportunity for the court to reject radicalism, but SCOTUS may upend our democracy with their decision.

SCOTUS has legalized bribery of politicians (Citizens United) and ignored potentially seditious behavior by its own members and their families. Not to mention exceeding its Constitutional authority by inserting itself into political issues, now with startling regularity.

It’s time to reign in the Supremes before they reign over us.

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Reasons For Optimism In 2023

The Daily Escape:

Spirit Lake, viewed from Mt. Spokane, ID – December 2022 photo by James Richman Photography

Wrongo has served you many big plates of gloom in 2022, and he has plenty more cooking on the stove. But, maybe there’s a reason to be a little optimistic about 2023?

Let’s take a few minutes to offer reasons why 2022 wasn’t as bad as it could have been, and why the coming year has a shot at being even better.

First, the Russians failed to win their war in Europe. And you ought to think that the Ukraine war is really a war against Europe, not just a land grab in Ukraine. Second, in the US, most of the authoritarian and anti-democratic candidates promoted by the Republican Party failed to gain a bigger toehold.

Both of these could easily have gone another way, as was nearly universally predicted by our so-called know-betters. But through the efforts of many government leaders and America’s regular citizens, they didn’t. But don’t underestimate just how close to real disaster we came in 2022.

In 2022, the West, at great cost, chose to help Ukraine defend itself. And in America, enough voters came out to help protect our democracy. Turnout in the midterms was reasonably high, especially among young voters. And despite the voter suppression laws passed in Georgia and Texas, voters got to the polls. Most losers acknowledged they had lost, just like in a functional democracy.

In fact, with last week’s passage of the Electoral Count Reform Act, the American system is enabled to create resilience, even if it doesn’t feel that way right now. Congress, with some semblance of bipartisanship, also passed a budget at the last minute.

Meanwhile despite our worst fears, the DOJ gained convictions against many Jan. 6 coup plotters and seditionists. A group of Oath Keepers is facing prison time. And the ringleaders of the plot to kidnap Michigan’s governor also got long prison sentences. Add to all of this Trump’s legal difficulties, which bring a high probability of him facing a criminal conviction, and there’s some reason for optimism in 2023.

And there is certainly more to come from DOJ Special Counsel Jack Smith, Wrongo’s pick for 2023 person of the year.

Even with some optimism there are a few things that could go horribly wrong in 2023.

  • Russia’s war in Ukraine is nowhere near over. The war is currently at a military stalemate, but the Ukrainian people are suffering terribly. Despite recent losses on the battlefield, Russia has a formidable army, and they might outlast the West’s commitment to Ukraine. That will bring a temporary peace to Europe, but it would be a huge strategic mistake to stand aside and let the Russians win.
  • The political crisis in the US isn’t over. We know that the Republican Party’s elected members of Congress still represent the main source of threats to the Constitution. With control of the House, they will pursue an anti-democratic agenda. Wrongo worries that when the Debt Limit needs to be increased this spring, the Republican-controlled House will refuse to be a part of that effort.

Anyone who predicted last year that 2022 would have been this successful would have been called a Pollyanna. The twin challenges for 2023, including the preservation of US democracy and the restoration of global peace, aren’t new. We’ve been facing them for several years if not decades. And we’re still here working on them.

Here are a few Wrong wishes for the new year:

  1. An end to the war in Ukraine with a Ukrainian victory.
  2. Continued good health for President Biden.
  3. No deep 2023 recession. Let’s hope the economy defies history and remains strong.
  4. A resolution to America’s immigration crisis. Let’s hope Congress can find a bipartisan solution that respects the dignity of migrants and establishes an efficient, workable immigration process.
  5. Further relief from Covid. Fewer people are dying, but the virus can mutate very quickly, and that threatens all of us still.
  6. Is a more centrist Supreme Court too much to ask for?

Finally can we have a rational House of Representatives?  We need political stability. Wrongo knows that delivering on this wish is an extremely heavy lift.

As we enter the new year, as Kasey Kasim used to say:

“keep your feet on the ground, but keep reaching for the stars”.

Will things turn suddenly worse in 2023? Will inflation continue to hurt Americans? Will the stock market collapse in the face of recession? Will political turmoil continue? Perhaps. But if 2022 is a gauge, it’s far more likely that we will muddle through, with our politics marking time while both Parties position for 2024. And our economy will continue to grow, albeit very slowly.

Let’s try to keep things in context, and not be distracted by the many things that could go wrong. Let’s also recognize those things that go right. Happy New Year!

Now listen to Diana Krall in 2005 asking, “What Are You Doing New Year’s Eve?”:

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Saturday Soother – December 24, 2022

The Daily Escape:

Santas on the Grand Canal in Venice 2017 photo via WSJ

(This column is late coming to you since the big storm left the Mansion of Wrong with no internet for two days, due to a large tree falling across our road. The high winds prevented crews from working to remove it for 24 hours. It also may be Wrongo’s last column until Jan. 4th.)

The New Year will continue to bring us the chaos that we’ve sadly become accustomed to. The 118th Congress and its Republican House majority will again test America’s norms. The 2024 presidential election is going to bring an extra silly season of political news, so take a real break if you can.

One thought for year end is to set out a framework for thinking about America’s commitment to Ukraine.

We know that a significant number of Republicans and some Democrats want to pull the plug on our support for Ukraine in its war with Russia. For now, the majority think it should remain a “whatever it takes, for as long as it takes” situation. Implicit in the second viewpoint is that American soldiers are never going to be combatants in Ukraine, and that we’re not talking about another 20-year war like in Afghanistan.

A few things to think about. Do we have a choice to support Ukraine, or is supporting them a necessity? We have talked about the difference between “wars of choice” and “wars of necessity” throughout Wrongo’s adult life. Two of our worst military experiences were in wars of choice: Vietnam and Afghanistan. We didn’t have to intervene in either, but our political leaders decided that America’s national security had a true connection to both conflicts. The clear wars of necessity for America were the US Civil War, and the two World Wars. All threated the existence of the US homeland.

Somewhere in between wars of choice and necessity is Ukraine. It isn’t an ally where we are obligated by a treaty, like we have with Europe via NATO. We are obligated to defend any NATO member who is attacked. For example, that would mean a war against Latvia is a war against the US.

We spent 20+ years fighting in Afghanistan. Given what we learned there, would America ever spend a minute fighting for Latvia? When Trump was president he flirted with saying we wouldn’t immediately commit to defending just any NATO country, and he wasn’t alone in that thinking.

That means we could consider choosing not to defend NATO at all, or not to defend individual NATO countries.

We’re facing Cold War II with China and Russia. Our new Omnibus budget allocates 10% more money to national defense than last year, largely because of the possibility of fighting both countries at great distances from home. The budget implies that our national security is threated by both of them.

Russia’s invasion of Ukraine could become a generation-long rolling war between Russia and the small NATO countries that border either Russia or Belarus, if Ukraine loses. Would America then rally and support NATO? Where would we draw the red line? Support for Germany but not for Poland? Ok, we’ll support Poland, but not Latvia?

We need to think through our priorities. We fought in Afghanistan because we believed fighting a far enemy (al-Qaeda) was better than waiting and fighting them as a near enemy. That is also the basis of why we created and remain a member of NATO: Fighting Russia over there was smarter than fighting it nearby, like in Cuba.

Neither China nor Russia are presently our near enemies. If China invades Taiwan, direct involvement by the US would be another war of choice with a far enemy. Ukraine represents a war of choice with a different far enemy, but one in very close proximity to our treaty partners, an enemy that could cross NATO’s trip wire at any time.

Our history suggests that the American people will agree to wage wars of choice if they are relatively cheap and short in duration. What we call a cheap war is mostly a partisan political question. But talking about the cost of a war of choice is a proxy for how Americans value the country that we’re intent on supporting.

Ukraine is a proxy war of choice. We have very few people on the ground and none in a direct combat role. The twin goals are to preserve Ukrainian independence and to bleed Russia of its conventional military capability. Americans need to consider the following implications for national security:

  • Since our resources are limited, should we choose between containing Russia or containing China?
  • What is the goal of containing either or both?
  • How important are the small NATO counties to our national security?
  • If Ukraine loses its fight with Russia, would our national security be weakened?
  • If yes, can we live with that, or should we be doing more now?

On to a Saturday that’s also Christmas Eve! Forget tree-trimming and the last-minute Amazon shopping for a few minutes. It’s time to unplug and land on a small oasis of soothing in the midst of all of the chaos.

Gaze out at the last few leaves on the trees, and listen to the late Greg Lake, of Emerson, Lake, and Palmer, perform 1985’s “I Believe in Father Christmas”. Although most people think of it as a Christmas song, Lake wrote the song to protest the commercialization of Christmas. Here Lake, along with Jethro Tull’s Ian Anderson on flute perform it live at St. Bride’s Church, in the City of London along with the church’s choir:

The last line of the song says: “The Christmas you deserve is the Christmas you get.”

That might be considered harsh in some circumstances, but it might also be true. Anyway, Merry Christmas, Happy Festivus, Happy Chanukah, Happy Kwanzaa, and Happy New Year to all. Let’s hope the deep divisions in our country can be somehow healed by a seasonal miracle.

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Zelensky’s Visit

The Daily Escape:

Conga line of Santas warming up for their Santa Run, Victoria Park, London, UK – 2018 photo by Yui Mok/PA

When Wrongo heard that Ukraine’s President Zelensky was likely to visit Biden, he was concerned for Zelensky’s safety, since he would be exposed for a significant period of time. It turns out that he flew on a US military plane:

“Flight data shows a US Air Force plane landed at Joint Base Andrews…shortly after noon after taking off from Rzeszow, Poland, which is located near the Ukrainian border. Polish television station TVN24 posted footage of Zelensky in Rzeszow, saying he took a train to Poland before boarding an aircraft.

The Air Force describes the plane, a C-40B, as an ‘office in the sky’ for senior military and government leaders, including capability to conduct secure voice and data communication.”

The Biden administration was so completely behind Zelensky coming to DC that they worked to insure both his safety and his ability to talk to his generals while enroute.

The question of “why now?” is easy to answer. The Omnibus Bill that is yet to pass Congress includes a significant aid package for Ukraine. Zelensky will be home long before the Omnibus Bill is approved by both Houses, which needs to happen before year end.

Wrongo and Ms. Right watched Zelensky’s speech to Congress, and Wrongo can report that he’s never wearing a tie to address Congress again! The contrast between a wartime leader wearing essentially the clothes he wore on the war’s front lines 24 hours before, hammered home the relative difference between our soft Congresscritters and what Ukrainians are facing each day.

There was a notable absence of Republican House members at the joint address. CNN estimated that only 80-some of the GOP House caucus were there. Apparently, all of the GOP Senators were there since Mitch McConnell is a functioning caucus leader, unlike House Minority Leader, Keven McCarthy, (R-CA) who couldn’t wrangle his caucus to attend.

That’s a sure sign of what is to come in January when the GOP controls the House of Representatives.

Despite what House Republicans think, Ukraine’s cause remains popular in the US, with two-thirds of Americans supportive of sending money and arms. The bad part is that this new poll shows Republican support for either sending additional military aid or additional economic aid to Ukraine are now down to 55% and 50%, respectively; worse, 43% of Republicans want the US to withdraw all support for Ukraine.

America desperately needs to have a discussion about Ukraine’s war with Russia, particularly about whether there are limits to our support for Ukraine. Our support so far has been necessary but it hasn’t been sufficient to cause Russians to leave Ukraine, or to compel them to negotiate about leaving.

The issue of the extent of our support will become a big political issue when Congress reconvenes in January, so we should start the discussion now.

A couple of final observations: Zelensky is patriotic, courageous, and charismatic, and a compelling speaker. He delivered his speech in English. It was to Wrongo, an endearing effort to reach out to Americans on an emotional level. And at least for Wrongo, it worked.

In the end, the two most important parts of Zelensky’s speech were first, to remind Americans that sacrifice is necessary to defend democracy. And that unless Russia is pushed back within its borders, few of us, particularly in Europe, are safe. Second, Zelensky pointed to the burgeoning relationship between Russia and Iran, and that Iran’s participation has been unchecked while it wreaks devastation on Ukraine.

We should develop a strategy to interdict the movement of Iran’s drones to Russia. That’s an escalation that makes sense to Wrongo.

By underlining that Ukraine needs still more military and humanitarian aid, Zelensky was calling on reluctant Republicans to do the right thing when it comes to funding what is likely to be a prolonged and open-ended war. We have to hope that they will.

Zelensky’s trip to military front lines in Bakhmut the day before allowed him to deliver a gift to Biden of a Ukrainian soldier’s battlefield medal. Biden’s response was perfect:

“It is undeserved but appreciated.”

People keep forgetting Biden is good at this. Zelensky’s camaraderie with Biden was reassuring. His speech before Congress was motivating. Overall, it was a great day for Zelensky.

Let’s listen to “Silent Night”, here performed in 1980 by the Temptations. This was their second recording of it, this time with Dennis Edwards, Melvin Franklin & Glenn Leonard on vocals. The song begins with Dennis saying, “In my mind, I wish all to be free”, not the traditional way to start “Silent Night”.

Questlove, speaking with Terry Gross, says that when a Black performer starts with “In my mind” as Dennis Edwards does here, you know you’re going deep:

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Releasing Trump’s Taxes

The Daily Escape:

Surfing Santa via Pinterest

After more than 3Âœ years of pursuit, Rep. Richie Neal (D-MA), Chair of the House Ways and Means Committee finally was given access to Donald Trump’s tax returns. Trump had refused to provide them and sued to prevent the IRS from giving them to Congress.

But after a federal district court waited 2 Âœ years before opining and a subsequently, a federal appeals court ruled in favor of the Committee, the Supreme Court declined to block the release of the returns to the panel last month. The Committee debated over whether to release Trump’s returns to the public and decided by a Party-line vote to do so.

The NYT tells us about the big takeaway from the release:

“The Internal Revenue Service failed to audit former President Donald J. Trump during his first two years in office despite a program that makes the auditing of sitting presidents mandatory, a House committee revealed on Tuesday after an extraordinary vote to make public six years of his tax returns.”

It’s called the Mandatory Presidential Audit Program, but the IRS never even got around to looking at Trump’s. It was only after the Committee asked about Trump’s returns in 2019 that the IRS finally opened an investigation of Trump’s 2016 returns, even though it had been tasked by that time with auditing him from 2015 through 2018.

That he wasn’t audited is strange, to put it mildly. Getting his returns has validated the Committee’s stated premise for opening the case. The Committee is now recommending that the Mandatory Audit Program, which has been in place since the Carter administration, be codified into law.

While not auditing the president, the IRS was quite busy auditing the returns of the FBI’s James Comey and Andrew McCabe, two enemies of Trump instead.

The Republican objection to releasing Trump’s returns was based on the idea that even public servants have a right to privacy about their financial matters. Wrongo has some sympathy for that, but the tax returns of all top government officials should be made public by law.

Rep. Kevin Brady (R-TX) warned that releasing Trump’s tax returns could lead to the release of tax returns of Supreme Court Justices:

Are you trying to hurt the Democrats, Kevin? Shouldn’t we routinely audit every senior government employee? Shouldn’t those audits be public? And especially the Supreme Court Justices, for whom ethics seem to be optional.

There’s also the threat that Republicans who will control of the House in January, will release the tax returns of Democrats. Wrongo thinks they should release any elected official’s return. After all, a government employee is paid by your taxes, so you have some right to transparency.

The difference is that Trump refused to release his, while most politicians release theirs after they are nominated for office.

For those Democrats who are now saying that it was a mistake to release them because of the Republicans’ possible retaliation, the last 30 years have been about Republicans going after Democrats with investigations and inventing scandals out of thin air for partisan political reasons. They will continue to do this irrespective of whether Trump’s tax returns were released.

Some media are reporting that Republicans are saying:

“….the Democrats don’t want to go down the road of releasing tax returns because where will it stop? with releasing tax returns of ordinary citizens?”

This is hyperbole. The media should ask Republicans who say this:

“Why are you so concerned about the House releasing the tax returns of ordinary citizens? Your Party will control the House. Are you concerned that your fellow Republicans would release tax returns of ordinary citizens?”

Next thing you know they’ll be asking for official college transcripts! Or, certified birth certificates. Oh, wait, they’ve already done that.

Because the Committee released Trump’s tax returns, we now know is that the IRS did not even begin its mandatory audits of Trump’s taxes until 2019 and hasn’t completed any of them.

Let’s close today with a tune for Hanukkah which this year is at almost the same time as the Christmas holidays. Let’s watch and listen to the Maccabeats perform “Latke Recipe” to the tune “Shut Up And Dance” originally performed by Walk the Moon. It’s fun, and who doesn’t like latkes?:

 

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The Criminal Referrals

The Daily Escape:

Gateway Crossing Bridge, Houlton, ME – December 2022 photo by Christopher Mills Photography

The Jan. 6 Select Committee has completed its job. On Monday it approved a criminal referral for Trump, a former President, and a current Presidential candidate, on a series of charges that include insurrection and conspiring to defraud the US. Marcy Wheeler summarizes the findings of the Committee perfectly:

“Trump corruptly tried to prevent Congress to certify the electoral victory of Trump’s opponent. He did so by committing other crimes. He did so by mobilizing a violent mob. He did so using fraudulent documents. And most importantly, he did so for personal benefit.”

The Committee will publish their final report next week. They will turn over the unredacted interview material to the Department of Justice (DOJ) and its Special Counsel, Jack Smith. According to Punchbowl, the Committee has already begun cooperating with Smith, who apparently sent the Committee a letter on Dec. 5 requesting all of the panel’s materials from the 18-month probe.

Sadly, it seems that their report ignores the policing failures that occurred both before and on Jan. 6.  One of the objectives of the Select Committee was to make recommendations about how the US Capitol could avoid a similar attack in the future. But it doesn’t seem that subject has been properly addressed.

While Wrongo believes that the investigation into Jan. 6 was critical and that it may eventually result in the DOJ indicting Trump at some point, conspiracy is a very high bar to prove against a common thief, much less against a former president who is used to communicating like a mob boss.

As Dan Pfeiffer says:

“…we will all wake up and go about our business. Donald Trump will continue to be the frontrunner for the GOP nomination and a legitimate contender to be the next President of the United States. The vast majority of Republicans will continue to stand with Trump — and most will do so enthusiastically.”

Before issuing any indictment, DOJ  prosecutors must decide if there is a case to be made that includes sufficient evidence to convict the former President beyond a reasonable doubt.

And it could take the DOJ a year or more to get a grand jury to indict Trump. While the DOJ has had grand juries up and running and considering evidence about Jan. 6 for a very long time, building such a complex case may take long enough that by the time they’re ready to bring a case, it will be near the time of the GOP primaries.

The Mar-a-Lago secret documents case is an easier one to make. We know that an FBI search of the former President’s Mar-a-Lago home in Florida found more than 300 classified documents.

Trump’s removal of official government records from an office of the US is one possible charge. A second separately chargeable offense is theft of government records. Those two crimes carry maximum three-year and 10-year sentences respectively.

Then there’s the Espionage Act, which also carries a sentence of 10 years in prison. We know that before January 20, 2021, the Acting Archivist of the US asked for those records to be returned, and Trump’s White House Counsel Pat Cipollone agreed that Trump needed to return them before his term ended.

After Trump left DC with the documents, a grand jury subpoena demanded that all of them be returned to a courthouse located in Washington, DC.

These three crimes are relatively straightforward to prove. Garland and his team might decide that charging them alone suffices, without adding a fourth offense of obstructing a pending federal criminal investigation, into improperly taking and retaining the stolen documents.

Obstruction carries a 20-year maximum sentence — double the penalty for violating the Espionage Act. That shows how seriously that charge is considered under the law.

We know that Trump and his attorneys stonewalled the government for more than a year, refusing to return the 13 boxes of classified documents that the FBI’s August 8, 2022 search recovered. Most of this year has been an effort by Trump to delay the FBI and the DOJ from inventorying all of the classified documents that Trump took to Florida.

The DOJ has a strong case against Trump on the charges described above. They are easier to prove, and existing laws are very clear what the penalties are when it comes to the theft of classified documents. And there’s plenty of legal precedent for putting people who steal US government secrets in jail for a long time. If we want Trump taken off the battlefield before 2024, the theft of classified documents case is the best shot.

Let’s close with “Christmas Must Be Tonight“, a 1975 tune written by Robbie Robertson. It was released on the Band’s 1977 album “Islands”. This version is from that album. The tune appeared in the movie “Scrooged” in 1988. There is Rick Danko’s singing along with Robbie Robertson’s lyrics. It doesn’t get any better than this:

Chorus:

How a little baby boy bring the people so much joy
Son of a carpenter, Mary carried the light
This must be Christmas, must be tonight

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What Should Happen When A Candidate Lies On Their Resumé?

The Daily Escape:

Christmas Tree, Cape Porpoise Harbor, Cape Porpoise, ME – December 2022 photo by Eric Storm Photography

Wrongo doesn’t like to write “Dems in Disarray” articles, but here goes. Monday’s NYT had a long article about a Republican Congressman-elect from Queens and Nassau County in NY. George Santos won and is set to be sworn in on Jan. 2. He ran as the “embodiment of the American dream”, something he wanted to safeguard for the rest of us. Turns out his back story is extremely difficult to confirm.

From the NYT:

“His campaign biography amplified his storybook journey: He is the son of Brazilian immigrants, and the first openly gay Republican to win a House seat as a non-incumbent. By his account, he catapulted himself from a New York City public college to become a “seasoned Wall Street financier and investor” with a family-owned real estate portfolio of 13 properties and an animal rescue charity that saved more than 2,500 dogs and cats.”

Ok, here’s the issue:

“….a New York Times review of public documents and court filings from the US and Brazil, as well as various attempts to verify claims that Mr. Santos, 34, made on the campaign trail, calls into question key parts of the rĂ©sumĂ© that he sold to voters…..Citigroup and Goldman Sachs, the…Wall Street firms on Mr. Santos’s campaign biography, told The Times they had no record of his ever working there. Officials at Baruch College, which Mr. Santos has said he graduated from in 2010, could find no record of anyone matching his name and date of birth graduating that year.

Grab your popcorn. More:

“There was also little evidence that his animal rescue group, Friends of Pets United, was, as Mr. Santos claimed, a tax-exempt organization: The Internal Revenue Service could locate no record of a registered charity with that name.”

Maybe Santos can explain. His financial disclosure forms say he has money.  He lent his campaign more than $700,000 during the midterm election, has donated thousands of dollars to other candidates in the last two years and reported a $750,000 salary and over $1 million in dividends from his company, the Devolder Organization. But several times, he was evicted for failure to pay rent:

“In November 2015, a landlord in the Whitestone neighborhood of Queens filed an eviction suit in housing court accusing Mr. Santos of owing $2,250 in unpaid rent. In May 2017, Mr. Santos faced another eviction case, from a rent-stabilized apartment in Sunnyside, Queens. Mr. Santos’s landlord accused him of owing more than $10,000 in rent stretching over five months and said in court records that one of his tenant’s checks had bounced. A warrant of eviction was issued, and Mr. Santos was fined $12,208 in a civil judgment.”

He sure sounds legit. How does someone who was evicted for non-payment of a total of about $14,500 in rent wind up in a position where he can loan $700k to his campaign? What caused his sudden change of fortune?

But Democrats, why are we only learning about this after the election? Why wasn’t this seriously negative information available before/during the election? Democrats do opposition research, even in a state like NY where they expect to win most seats.

And it gets worse. Santos ran and lost in the same district in 2020. So the Democrat’s state political higher ups had YEARS to do opposition research on Santos, but they didn’t. The Chair of the NY state Democratic Committee is Jay Jacobs, who is also Nassau County Democratic Chairman. Under his leadership, the Democrats lost four Congressional seats in November.

Within days after the election, dozens of Democratic officials from across the state signed a letter calling for Jacobs to be replaced. They accused him of sleepwalking into the midterms. Was Jacobs asleep at the wheel? Jacobs blames low voter turnout, but it’s his responsibility to get Democrats to the polls, to motivate voters to show up. And to check out the backstories of the opposition.

BTW, the NYT reached out to Santos for comment:

“We could not locate the congressman-elect and a person living at his stated address had no knowledge of his existence.”

The federal government has a False Statements Act for material omissions or misrepresentations on personal financial disclosures. It carries a maximum penalty of $250,000 and five years in prison. We’ll see. The House also has internal procedures for investigating ethics violations, but because Republicans who will control the House with Santos’ help, have no bottom for the ethical lapses they’ll accept, NY is now probably stuck with this guy.

Let’s close with another version of the Mariah Carey hit “All I Want for Christmas is You”  this time performed in 2021 by the Welsh of the West End, a group of UK theater performers:

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Monday Wake Up Call – December 19, 2022

The Daily Escape:

Skiing Santas at Sunday River Ski Resort, Newry, ME – Dec. 11, 202, AP Photo/Robert F. Bukat

(As we cruise towards Christmas, each day this week we will feature pictures of Santas and/or Christmas trees, along with loopy songs vaguely representative of the season. You’ve been warned.)

The war in Ukraine has once again reminded policy makers of the importance logistics plays in winning on the battlefield. In reading a Defense One post by Marcus Weisgerber, Wrongo learned that demand for weapons by Ukraine — combined with worker shortages, inflation, and other factors — has made it more difficult and more expensive to produce the most in-demand weapons. This describes the current problem:

“The US has sent 13 years’ worth of Stinger production and five years’ worth of Javelin production to Ukraine…”

That’s in 10 months. And a newsletter by CDR Salamander states the overall problem clearly:

“The Ukrainians would have run out of weapons and ammunition months ago if the former Warsaw Pact nations in NATO didn’t empty what inventory they had left of Soviet Era weaponry and the rest of NATO led by the USA didn’t wander the world trying to soak up as much available inventory money could buy. That and the rapid adoption of NATO compatible equipment by the Ukrainians is helping, but that has revealed other problems – who says the West has enough to give?”

It is said that amateur warriors deal in tactics while professional soldiers deal in logistics. Both sides in this war are burning through their weapons stockpiles at unsustainable rates even though the war seems (at least momentarily) to be a stalemate. The US and NATO had little in stockpiled weapons even before the Russo-Ukrainian War, able to mount only a very limited or short war as they did (poorly) in Libya. This has been true for the past 20 years. Now those limitations are out in the open.

US defense spending could rise 10% percent in 2023. A good chunk of the increase is meant to rush weapons to Ukrainian forces fighting the Russian invasion, along with replenishing the US missiles, artillery and other weapons sent to Ukraine.

But the sad truth is that it isn’t clear that US or European defense companies, along with the thousands of small businesses that supply them, can meet this increased demand. There are plenty of reasons, including worker shortages and supply-chain disruptions that have been exacerbated by the pandemic and the global current economic outlook.

And the Pentagon was slow to award contracts to rebuild weapon stockpiles. Those that were awarded quickly had to be fast-tracked by top-level Biden administration officials. And it gets worse. Many defense firms are short-staffed relative to what’s needed to fulfill anticipated Pentagon orders to replace weapons sent to Ukraine. Defense One quotes Raytheon Technologies CEO Greg Hayes:

“The real question is, can we actually build it?….They can appropriate all the money, but…if we take months and months and months to get on contract, that’s months and months of delay.”

Raytheon builds the Stingers that are so depleted.  They are willing to ramp up, but it takes investment and lead time to grow production. More from Hayes:

“We want to be prepared to meet the demand that’s out there….I wish I could snap my fingers and then all of a sudden miraculously, throw a building up and train 500 people [to build them], but it just takes time.”

American business calls this “Lean Manufacturing“.

A final illustration of how a simple part that gets caught in the supply chain becomes a big problem: The Eurasian Times reports that German ammunition manufacturers have warned about delays in receiving cotton linters. They are a necessary component for propelling charges from small guns and artillery. All European ammunition producers depend on China for cotton linters, even though it is a commodity produced and traded globally. The time to get them to Europe has tripled to nine months.

Much like we learned during the height of the pandemic, our supply chain is only as strong as its weakest link. Lean Manufacturing and “Just-in-Time” supply chains drove the prices of imported goods through the roof, but increased demand meant that we still had to wait months to get what we ordered. Have we learned anything?

Like during the pandemic, the Russo-Ukrainian War is sending a clear warning to everyone throughout the West: We need to ramp up production, capacity, and have a more reliable – if somewhat less efficient, supply chain to support our military. This is a hard lesson, because unlike jets, missiles and ships, ammunition and expendables are hidden away in bunkers. And if your governments and diplomats do their job, they will never be used.

However, if/when you need them, like right now, the need is existential. Time to wake up America! We can’t depend on capitalism only to solve our supply chain problems. To help you wake up, take a moment to watch the Foo Fighters, who closed 2017’s Christmas episode of Saturday Night Live with an extended performance of “Everlong” that morphs into a pair of seasonal classics:

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Saturday Soother – December 17, 2022

The Daily Escape:

18th Annual Las Vegas Santa Run – Saturday, Dec. 3, 2022.  Source: L.E. Baskow/Las Vegas Review-Journal @Left_Eye_Image

Lost in the back and forth of the year-end Congressional sausage-making was the unwelcome news that the deal to protect dreamers and to reform our immigrant asylum system has died.

From Greg Sargent in the WaPo:

“For a fleeting moment this month, a deal to protect 2 million “dreamers”…appeared within reach. Two senators with a history of bipartisan compromises were earnestly haggling over details…. The talks were endorsed by influential right-leaning opinion-makers, and even encouraged by the conservative Border Patrol union.”

The two Senators are Sens. Thom Tillis (R-NC) and Kyrsten Sinema (I-AZ). Back to the WaPo:

“What happened? Tillis and Sinema were negotiating over bill text, much of which had been written, as late as Wednesday night. But Senate Minority Leader Mitch McConnell (R-KY) informed Sinema and Tillis that he wouldn’t allow it to be attached to the end-of-year spending omnibus bill, effectively killing it…”

Passing it was always a long shot. It looks as if the Republicans want immigration as a political issue more than they want a solution.

If you follow what’s going on at the southern border, you know that using Title 42, to allow police and border officers to expedite the expulsion of illegal immigrants is ending. A federal judge ordered the Biden administration to stop using it by Dec. 21, stating that it was “arbitrary and capricious.”

Immigrants are now crossing the border in large numbers, expecting that it will soon be impossible for US Border Patrol to simply send them back without reliance on Title 42. More from Sargent:

“The framework would have created new processing centers that would detain incoming asylum seekers — with increased legal and health services — until screenings could determine whether they have a “credible fear” of persecution if they were returned home. Those who passed would get a final hearing much faster than under the status quo, due to major investments in legal processing. Those who failed would be expelled promptly.”

The proposed Tillis/Sinema bill was designed to disincentivize exactly what the Republicans keep yelling about: Migrants who arrive seeking asylum, who then disappear into the interior and fail to show up for hearings. More from Sargent:

“What’s deeply frustrating about this moment is that the fundamental principles underlying reform were real and workable. Many Republicans recognize the absurdity of banishing the dreamers….And on asylum, these reforms represented a good-faith effort to come up with a solution that both sides could accept.”

The bill would have discouraged the exact sort of abuses that the Republicans constantly call the “border crisis” while retaining  the US commitment to provide a fair hearing to all who seek refuge here.

Now, the border infrastructure that intercepts and processes migrants will be strained past the breaking point once Title 42 is lifted. But solving the problem doesn’t provide a political payoff to Republicans, who want to keep the “border crisis” hot as a 2024 campaign issue.

The Sinema/Tillis plan was a worthwhile effort. But there weren’t even 10 Republicans willing to break the filibuster. This is why, according to Gallup, more Americans say government is our biggest problem. And they’re saying so for the seventh time in the past 10 years. “Government” is a broad category of dissatisfaction that includes the President, Congress, Party politics and of course, gridlock.

There will be no end to gridlock unless and until bi-partisan efforts are rewarded. So, not in Wrongo’s lifetime.

But now’s the time to let go of the hot steaming mess that is our politics. Grab a few moments of calm and distance before we turn to a weekend of sourcing more Christmas presents and wearing our ugliest seasonal sweaters to family parties. It’s time for our Saturday Soother.

Here on the Fields of Wrong, we still have patchy snow on the ground, although the much-hyped winter storm that made it to the Northeast after wreaking havoc elsewhere seemingly has missed us entirely.

Let’s kick back and brew up a hot steaming mug of Ethiopia Uchoro Nansebo Washed ($27/12oz.) coffee from Floyd, VA’s (pop. 432), Red Rooster Coffee. The roaster says it is surprisingly savory and creamy with notes of apple cider, lemon-lime, and stewed peaches.

Now grab a comfy chair by a window and listen to Michael BublĂ© perform “Christmas (Baby Please Come Home)” with Hannah Waddingham (Rebecca Welton on Ted Lasso). Her singing is a revelation. It’s hard to believe she could make BublĂ© look and sound like a guy in the chorus. It’s from his 10th Anniversary “Christmas in the City” show:

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