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January 6th transcripts, John Eastman

Monday, December 26, 2022

Much to my surprise I have gotten through the second transcript recently released by the January 6th committee.

This is an easy one. It was the deposition of John Eastman, the lawyer who came up with the bullshit theory that the Vice President could throw out the electoral votes of any state he chose in favor of electors not certified by the various states.

Eastman basically pled the 5th in answer to every question, including questions in which it was clearly inapplicable.

Stepping back a second, it might be a good idea to replicate the text of the fifth amendment which is at issue. The amendment provides that no person shall “be compelled in any criminal proceeding to be a witness against himself” (Emphasis added).

So, going purely by the text, in a non-criminal proceeding such as the committee’s hearings, the fifth amendment does not even apply, though for reasons that are fairly obvious, the courts have ruled that one can seek it’s protections in a civil proceeding since any testimony from such a proceeding could be introduced in a criminal proceeding. However, it is also the case that an “adverse inference” arises in any civil proceeding if a party or witness takes the fifth. In other words, a civil jury can assume that someone who relies on the fifth to refuse to say whether he rammed his car into the plaintiff probably did, in fact, ram his car into the plaintiff. So, it quite follows, at least in my opinion, that Eastman did in fact attempt to overthrow the government of the United States, given the nature of the questions he refused to answer.

What I found amusing was his lawyer’s implied argument that one should not apply such an adverse inference, because an innocent person could take advantage of the fifth as well as a guilty person. Theoretically true, but….

He and Eastman also appeared to argue that he did not have to say that an answer to any given question might incriminate him, because the constitution provides merely that he can not be compelled to be a witness against himself. That sort of misses the point, because by taking the fifth he is necessarily stating that by answering the question he would be a witness against himself.

He also said that he was taking the fifth in order to protect himself in disbarment proceedings in California. Again, disbarment proceedings are not criminal matters, and my guess is that a refusal to answer gives rise to an adverse inference.

It was also the case that he took the fifth in response to questions to which it clearly would not apply in a court of law. For instance, he refused to say whether a Vice President “has ever exercised unilateral authority to reject electoral college votes coming from a particular State before in American history”.

He also claimed that he could take the fifth to avoid saying why he was taking the fifth.

It seems to me that he’s ripe for picking by the Justice Department. He’s one of the folks the committee referred for prosecution. My guess is that once he’s indicted the fifth will no longer be an impediment to his testifying, so long as he can cut a good deal to testify against the genius.

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January 6th transcripts, Jeffrey Clark part 1

Friday, December 23, 2022

I have set myself the task of reading and digesting each of the newly released transcripts from the January 6th committee. We’re I a betting man I would bet that I’ll never complete the task, but one never knows.

It’s my understanding that the released transcripts are a subset of all the transcripts from the committee depositions. I’m not sure about the selection criteria employed to determine the early releases, but I’m guessing at least one consideration is to illustrate the extent of criminality in which Trump and his cohorts were engaged.

Each transcript’s title is prefaced by a number such as 20211105, meaning that the deposition in question was taken on November 5, 2021, so I’m taking them in chronological order based on the titles.

First up is Jeffrey Clark. For reasons that will become apparent, Mr. Clark had occasion to return to the committee, but I shall cover his second appearance (if I ever do) as it comes up chronologically.

Clark, you will recall, is the guy Trump wanted to elevate to acting attorney general as he had indicated a willingness to commit treason in Trump’s behalf, a plot frustrated by the threat from a host of Justice Department folks that they would all resign in protest.

I’ll begin by noting that once again I am stunned by the sheer audacity of the lawyers that have become involved in these cases. Clark was apparently noticed for his deposition for a week prior to the date it was held (November 5, 2021), but the committee gave him a week’s continuance because he had just gotten a new lawyer, a fellow named Harry MacDougald.

Minutes prior to the deposition, MacDougald gave the committee a letter in which he explained that Clark simply could not answer any of their questions because any question they might ask would involve some sort of privilege. Among the questions raised by the committee in response to this rather startling assertion:

  • What specific privilege are you citing in response to, for instance, Congressman’s Schiff’s query about the aspects of your January 6th involvement that Clark divulged to a reporter but about which he refused to testify to the committee?
  • What specific privilege prevented him from responding to a question from Liz Cheney asking him when he first met Congressman Scott Perry?
  • Why are you refusing to answer specific questions and delineate the specific privilege upon which you are relying?
  • Why are you claiming a privilege that your superiors at the Justice Department never asserted.
  • Why are you refusing to answer questions about which it is clear that there is no conceivable privilege?

The list goes on. Suffice to say that he refused to answer a single substantive question or to explain the legal grounds for failing to do so, constantly relying on the letter that his lawyer had delivered to the committee minutes before the hearing, a letter that the committee had not had time to review.

When the committee proposed to take a recess to review the letter, Clark, who was under subpoena, declared his intention to simply walk out and not come back when they reconvened, a threat on which he made good. In the world where Republicans are not the subject of subpoenas, such a move would likely land the scofflaw in jail.

The committee’s counsel (his or her name is redacted) sums up the gist of it:

Mr. MacDougald, with all due respect, Mr. Clark has been subpoenaed to appear before this committee. It is a legal obligation, on a date certain, to answer questions. That does not include a legal obligation by the committee to negotiate, or to set forth in advance particular subject matters. It’s a legal obligation to show up and answer questions, or to assert a privilege in response to specific questions. My understanding is that despite that legal obligation and an offer to through the questions and assert a privilege point by point, he’s refusing to answer any such questions. I just want to make clear that is his position.

So, apparently, at least as I interpret it, Clark rather desperately wanted to avoid taking the fifth, and his lawyer came up with a ton of bullshit to help him avoid doing just that.

From a practical if not legal point of view, the entire exercise amounted to an implied admission, given the nature of the January 6th committee, that he had been involved in a criminal conspiracy to overthrow the government.

Addendum: I just took a quick look at his second deposition, and my surmise was correct. He took the fifth to every question, including some to which it appeared to be clearly inapplicable, such as whether he was working for the Justice Department on January 6th.

Extra added attraction: Back in the day, when the genius was president, I would add a few paragraphs a day to a diary I keep on my Ipad about his latest doings. I thought it might be a good idea for this series (if it continues) to cull some snippets from the “On this Day” feature, just to remind us what these people were trying to inflict upon us. Here’s one from four years ago today. A bit of criminality, and a bit of childishness. Vintage Trump:

On the Trump front, he has demanded that Mattis leave by the 1st of January, rather than the end of February date that Mattis had put in his resignation letter. Apparently, he learned from television that the resignation letter was a not very thinly veiled attack on him, inasmuch as it pretty much alleges that he is acting as a Russian agent.

He probably didn’t read the letter when it was tendered, and, if he did, was not smart enough to read between the lines.

Next episode may be a few days from now, if ever. There’s a holiday coming up.

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It’s always okay if you’re a Republican

Friday, December 23, 2022

Ever since I started blogging, which was many moons ago, bloggers on our side of the fence have used the acronym IOKYAR to refer to what has become almost a legal rule in this country. It’s simply okay to transgress moral or legal norms if you’re a Republican. It is particularly okay so far as Republicans themselves are concerned.

That’s why I beg to differ with the folks over at the Palmer Report who seem to think there will be some sort of fallout, possibly even a resignation, after the revelations that Congressperson-elect George Santos (R-Naturally) has lied about everything in his past except possibly his name.

This merely makes him a potential star among Republicans, all of whom routinely lie. (Okay, maybe there’s an exception, but give me an example, please.) His Republican colleagues will simply look the other way for so long as it takes the media to lose interest, and the newly empaneled House Ethics Committee will implicitly rule, if it is even asked, that Ethics rules do not apply to Republicans. The media will certainly play along, as it has long since learned that different rules apply for Republicans, so whereas they would never forget this sort of thing were a Democrat involved, they’ll simply write this off as yet another Republican being a Republican. Stop and think of the tremendous number of long forgotten scandals in which Trump, his family, and his hanger-ons were involved, not to mention stuff like Gym Jordan protecting a sexual assailant.

What’s particularly galling about this is that not only do the same rules not apply to Democrats, Democrats don’t even get to be treated in what would be considered an equitable manner in other circumstances. I still seethe when I think about the fact that Al Franken had to resign due to a cooked up “scandal” in which he was presumed guilty with no chance to prove his innocence. even more galling was the fact that a number of Democrats seized the opportunity to apply the “Democrats are presumed guilty and must suffer consequences” rules in order to further their own careers. (Looking at you, Kristin Gillibrand, who, at least, found that you don’t become president by destroying the career of a popular possible opponent.)

In the case of Santos the only question is how long it will take for his fraud to be forgotten. I’d say a couple of weeks. It may hamper his re-election bid, but it will not affect his treatment by other Republicans. Democrats, being Democrats, will soon stop talking about it instead of harping on it as would Republicans were there a Democratic fraud of that sort. Meanwhile, we must ask, how could the Democratic candidate who lost to this guy in a Dem leaning district have failed to do some fairly basic opposition research that would have uncovered his lies when it would have done some good.

Afterword: I understand from a reliable source that the Democrats were aware that this guy was a serial liar, but apparently failed to act on their knowledge. It almost seems, sometimes, that the Democrats themselves have decided that IOKYAR.

Second Afterword: I know that the Palmer Report is in many respects simply a guilty pleasure. However, I’ll say once again that while I don’t buy into their analyses, the facts they report are accurate.

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The January 6th Committee closes up shop

Monday, December 19, 2022

I watched a good deal of the January 6th committee’s hearing and I’ve downloaded their report, which you can find here. I haven’t read the whole thing, but what I’ve read so far is well structured and persuasive, but when you come right down to it, it’s a fairly easy case to prove. Trump is obviously guilty of trying to subvert the constitution.

I’m not as certain as some that the Republican Party’s current disarray will lead to more electoral defeats down the road, but I’d like to hope that will be the case. I’m wondering what effect the inevitable investigation into the January 6th committee will have. Maybe they’ll just concentrate on Hunter’s laptop. They’d probably be wise to do that, because although no one but the whackjobs cares about that issue, it’s also unlikely to cause much of a backlash. Going after the January 6th folks might be a bit different. If and when McCarthy gets his speakership it will be interesting to see how he responds to the inevitable demands for such an investigation.

On a bit of a side note, one of the folks demanding such an investigation will no doubt be Marjorie Taylor Greene. I noted during the hearing that the committee featured a January 6th text message from her to the White House. She was afraid for her own personal safety because she had heard that at least one of the rioters was armed, so she wanted the White House to get them to back off. She’s the person who said if she’d been in control she’d have armed the protesters. Funny how her position changed. Yet another great piece of trolling by the committee.

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Does she contradict herself?

Tuesday, December 13, 2022

It’s not exactly an original observation, inasmuch as Republican irrationality is nothing new, but this one really struck me. It seems that Ronna McDaniel wants to know why Republicans are not voting for every single Republican, no matter how half assed or fascistic, or both, that a given candidate may be, as we find when she is confronted even in the friendly environs of Fox News:

“Would you publicly say that Donald Trump bears any responsibility for some of the losses in the midterm elections?” Varney asked McDaniel.

“You know, I don’t like this,” McDaniel said. “I don’t like these parceling out because he supported Ted Budd, who won. And he supported J.D. Vance, who won.”

But why are Republicans going and voting for one Republican and not the other?” she asked.

“Trump,” Varney shot back. “Isn’t that the answer to your question? You actually posed a question. The answer is Trump. Isn’t it?”

“I’m saying I’m not into the blame game right now,” McDaniel replied. “I think we’ve got to do an analysis. I think it’s too quick.”

So apparently McDaniel really wants to blame someone for the Republican’s relatively dismal mid-term performance, but on the other hand, she doesn’t want to blame anyone if that anyone happens to be Donald Trump. There must be a way to blame Democrats for the fact that Republicans aren’t voting for Republicans.

This exchange is enlightening for the fact that Varney pushed her to blame Trump. Fox has apparently made a decision that it’s time for Trump to go down the memory hole, but 99% of Republican politicians are still too afraid to go there.

McDaniel is right that Republicans need to figure out why they are becoming unpopular with the non-fascists who still cling to the “R” label, but it’s unlikely that any analysis they do will come up with reasonable answers. If they astound us and do come up with reasonable answers, you can bet that Republican politicians will pay no attention. In the next two years, for example, we can expect the Republicans to do all they can to wreck the economy so they can blame it on Biden, pursue pointless “investigations” that will make Behngazi look statesmanlike, and prove beyond doubt that if given the opportunity they would strip Americans of rights that have been seen as basic for generations. One thing we can not expect is any significant number of Republicans putting the constitution, country, or the public interest over party.

Alas, they may get away with it, since there’s every reason to believe the Supreme Court will give them the right to legally steal elections and legislative majorities through voter suppression and gerrymandering.

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More legal illogic coming down the pike?

Wednesday, December 7, 2022

This is sort of a follow up to one my recent posts, in which I wondered what type of pretzel logic the Supreme Court would use to reject a case brought by Jews who claimed that they had a right to abortion services as their religion does not hold that life begins at conception. So, here’s another case discussed at Lawyers, Guns & Money:

A restaurant in Richmond last week canceled a reservation for a private event being held by a conservative Christian organization, citing the group’s opposition to same-sex marriage and abortion rights.

“We have always refused service to anyone for making our staff uncomfortable or unsafe and this was the driving force behind our decision,” read an Instagram post from Metzger Bar and Butchery, a German-influenced restaurant in the Union Hill neighborhood whose kitchen is helmed by co-owner Brittanny Anderson, a veteran of TV cooking shows including “Top Chef” and “Chopped.” “Many of our staff are women and/or members of the LGBTQ+ community. All of our staff are people with rights who deserve dignity and a safe work environment. We respect our staff’s established rights as humans and strive to create a work environment where they can do their jobs with dignity, comfort and safety.”

…

I mean, if it’s all about personal values and freedom and such, why can’t we just refuse to serve Christians if we find them outrageous to our value system? I do however await the legal “logic” by which the Supreme Court finds this illegal but refusing to serve gays totally legal.

I’ve read a bit more about the court’s deliberations in the case in which it just heard arguments, so I’ll predict the “logic” they’d employ.

The case they just heard involves a website designer who has never been asked to design a wedding website for a gay couple, but brought a preemptive action seeking to enjoin the state from maybe applying an anti-discrimination law to her just in case anyone ever asked her to design such a page. In the olden days (5 or 10 years ago) the case would have been dismissed for lack of standing, but times have changed.

The court will likely rule that requiring her to design such a site (even though she apparently just sells pre-made templates) would violate her rights of free speech, as it would in essence be requiring her to engage in speech (designing the website) in which she does not want to engage. In the case of the restaurant, it will be easy enough for them to rule that there’s no speech involved, that they are merely selling a product and they aren’t allowed to discriminate among potential customers for that product based on religion, race, or sex. They’d be right, by the way, so far as the restaurant goes, but they’d still be wrong about the web site designer. Their problem, of course, is that such a decision would also bar anti-LGBT bigots from denying restaurant services to gay folks, so they’d have to come up with some anticipatory logic to allow that.

I should add that if the anti-LGBT case came to them first, they could easily find that speech was in fact involved, since the restaurant could argue that merely allowing the group to meet there could be considered an endorsement by the restaurant of their lifestyle, etc. But that same logic would apply to the fundamentalist Christian group, so if they were to bar the gay folks first they’d have a tougher time when the Christians showed up.

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An additional bright side to yesterday’s election

Wednesday, December 7, 2022

We can certainly celebrate Senator Warnock’s victory over the former football player. The country has come to a bad place when a major political party sees fit to nominate someone who is obviously brain damaged, in addition to all his other issues.

There is yet another bright side to Warnock’s victory, besides the political. At least it’s a bright side for those of us who contribute to political campaigns. I would estimate that for the past 6 months or so I received about 30 emails and texts a day soliciting money on Warnock’s behalf. It takes time to delete them all, so over that time period I’ve probably spent a couple of hours doing exactly that. In the process, from skimming the subject lines (I never read the emails) I learned that 1) things were looking terribly down from the Senator, and 2) things were looking great for the Senator. I also learned that he was being outspent by a lot, even though the newspapers seem to say that the reverse is true. I understand that they do what they think they have to do to raise money, but it is some time a little irritating to see emails on the same day with contradictory subject lines.

Don’t get me wrong, I contributed to the guy several times, which is probably why I received so many emails and texts. It does get a little over the top, though.

I do think that a little too much has been made of the fact that his victory assured the Democrats of an expanded majority. My guess is that Sinema and Manchin will now be even worse, though it’s possible that Sinema will mend her ways a bit to stave off a primary challenge, but not until the current Democratic House majority is gone, so she can make sure that the Republicans in the House can hold the debt ceiling hostage.

Postscript: Looks like PZ Myers, over at Pharyngula, had a similar reaction.

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An upcoming challenge for the not so Supremes

Monday, December 5, 2022

It will be interesting to see how the Supreme Court handles these cases if they make it to the highest court in the land:

The ACLU is bringing a suit against Indiana’s regressive, sadistic abortion ban based on the fact that it infringes on the religious rights of anyone who doesn’t subscribe to the fantasy that life begins at dinner the night before. Jewish people, for instance, don’t believe the fetus has a soul until it draws its first independent breath. We prioritize the life of the pregnant person above the life of the fetus for the entirety of the pregnancy, including in situations that put the pregnant person’s emotional health at risk. With the imposition of the GOP’s fetus-fetish laws all over the nation, however, Jews and others whose religions don’t subscribe to the ideology of these nutters are fighting fire with fire.

Right now the court is poised to rule that a business can refuse to do business with gay people on religious grounds. There have already been a host of rulings exempting Christian fundamentalists from following facially neutral laws, such as the Hobby Lobby decision in which the court essentially ruled that a corporation, a creature of statute and not, despite what Mitt Romney and most other Republicans may think an actual human being, can have a religion and is therefore entitled to some of the protections provided in the so called Religious Freedom Restoration Act.

So, eventually, the court is going to have to come up with a rationale for ruling that a cake maker can refuse to make a cake for a gay wedding based on his or her deeply held religious conviction that gay people should not be allowed to marry, while at the same time ruling that the extreme religous beliefs of extreme Christian sects should bind people who do not share those religious beliefs.

It should be an easy task for a court that is willing to look to the writings of a 17th century witch burner to determine what women can do with their bodies in the 21st century. Besides throwing democracy out the window, the court has pretty much given up on being consistent or intellectually honest.

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Looking ahead

Sunday, December 4, 2022

Over at Hullabaloo Tom Sullivan writes about one of the many problems besetting the Democrats: the aging and consequent ossification of many of their elected officials, 89 year old Diane Feinstein, who is almost certainly in at least the beginning stages of dementia, being a prime example. Not only do these politicians lose touch with their constituency as they grow older, but they tend to become more bound to a way of thinking that exalts members of the club over duty to constituents. Why, for example, did Nancy Pelosi and her minions do everything in their power to protect Henry Cuellar during his primary, when he votes against virtually everything they try to do?

At least Nancy had the grace to step aside recently.

Here in Connecticut we have a few aging politicians who should consider retirement as an option in the near future. I have no quarrels with Blumenthal or Courtney, but at some point you have to step aside and let the younger generation take charge, for after all, it is they who will be living with the results of what Congress does now. I’m not suggesting either of them, or any other Connecticut politician that shall go unnamed, should step aside immediately, but I do think it might not be a bad idea for them to be looking for potential successors and doing what they can to make sure they are replaced by a young Democrat with good progressive credentials. Blumenthal will be 82 when his new term expires. That would be the optimal time for him to close out an honorable career in favor of a younger person who can carry on in his place. In Courtney’s case, in an ideal world he and party leaders would scout out for an ideal replacement, and spend some time preparing the district for that person’s candidacy. The Second is sort of a tough district, considering all the yahoos, whose numbers increase as you drive up 395. “Grooming” a potential replacement might not be a bad idea, and anyway isn’t grooming what we evil Democrats do?

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All your base are belong to us

Friday, December 2, 2022

There certainly is a difference between the two parties in this country. The Fascist Republican party goes out of its way to cater to its fringe base, while the Democratic Party goes out of its way to alienate what should be its base. In this case, I’m talking about unions, which were once a major political force in this country and were also a solid part of the Democratic base.

Unions have lost a lot of their power, and some of that loss is attributable to their own missteps. I recall, for example, the unions abandoning the Democrats in 1972 because the party dared to nominate a guy who opposed a war that subsequent history has proven we should never have fought.

But lets get back to the present, when the Democrats see fit to pass legislation that imposes a settlement on railroad workers that essentially sells out the union members and gives a gift to the railroads, which have been systematically exploiting the workers and allowing rail services to deteriorate in order to maximize their own profits. We read here that a group of labor historians has penned a letter to Biden opposing what the Democrats are doing:

That view, expressed in an open letter to Biden and Secretary of Labor Martin Walsh, was that Biden screwed up. The letter, which Barker helped write, said the historians are “alarmed” by his decision to impose a contract four unions rejected despite the “eminently just demands of the railway workers, especially those that provide them with a livable and dignified work life schedule.” Railroad workers are fighting a corporate regime that has shrunk the industry’s workforce by 30 percent in recent years then blamed crew shortages on the “supply chain” and imposed draconian work schedules that have workers tired, sick, stressed, and unable to spend meaningful time with their friends and families, all while raking in record profits. Four unions have rejected the tentative agreement and freight rail workers generally support a strike because they view the corporate greed motivating these decisions as an existential threat to their industry and the safety and economic security of the American people.

How can I complain? The legislation was bi-partisan after all! Of course, these days almost all bi-partisan legislation amounts to a Democratic surrender to Republicans along with Manchin and Sinema. The Republicans got a bill that benefits corporations that will no doubt contribute to their coffers, while the Democrats got a bill that will make it easier to lure more working class folks to vote against their own interests and for the Republicans. So, a great opportunity for the republicans to firm up their monetary base and add to their whackjob base. Win-win for the Republicans, lose-lose for the Democrats.

By the way, if the grammatically defective title to this post confuses you, the explanation is here.

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