Archive for October, 2020

Double Standard on the Hatch Act – posted 10/26/2020 and published in the Concord Monitor on 11/2/2020

October 27, 2020 1 comment

Federal workers, with the exception of the President and the Vice-President, are subject to the Hatch Act, a 1939 law that imposes strict limits on their engagement in political activity while on duty. When working, federal employees cannot send partisan emails, solicit political contributions or use government computers in support of any candidate.

The idea behind the Hatch Act is that federal service should depend on meritorious performance – not political subservience to an administration. Limiting federal employees’ political activity is an effort to guard against partisan favoritism or a spoils system.

This Hatch Act message is drilled into the heads of federal workers and I am not saying this from an abstract understanding. As a federal worker myself, I would say I have received countless messages about the Hatch Act and how to abide by its rules. If there is any question about a political activity, I know to ask our regional attorney to seek guidance.

Outside of work, federal workers can engage in some politics although the rules are very circumscribed. There are less restricted and more restricted employees and for the more restricted, there is a black letter rule against publicly endorsing any candidate. Violation of the Hatch Act can result in discipline which can include termination, suspension and loss of pay.

So it is a shock to see the Trump Administration treat the Hatch Act with utter contempt. Multiple Trump Administration officials have violated the Act with seeming impunity. They have acted like they are above the law.

The Office of Special Counsel, the government watchdog agency designated to oversee enforcement of the Hatch Act, has been a toothless tiger in responding to the violations. Apparently only lower level federal employees must abide by the Act. Trump aides gloat about how their violations have met with no consequences.

Federal workers generally know that if they violate the Hatch Act they are toast and will be punished. Defending a Hatch Act violation with the attorney fees incurred can be financially devastating. The double standard could not be clearer. This is unprecedented because up until this administration both parties recognized and respected the Hatch Act and accepted punishments.

According to Michael Grynbaum and Annie Carni of the New York Times, some of Trump’s aides privately scoff at the Hatch Act and they take pride in violating its regulations. Mark Meadows, the President’s Chief of Staff, has said that he doesn’t think people outside of the Washington DC beltway are worried about the mixing of partisan politics and official federal duties.

So far, fourteen senior Trump political appointees have been cited for Hatch Act violations by the Office of Special Council but Trump is generally dismissive of the Act.

I will cite some of the most egregious Hatch Act violations by Trump Administration officials. The Office of Special Counsel found that Counselor to the President, KellyAnne Conway violated the Hatch Act on numerous occasions by advocating for and against candidates in the 2017 Alabama special election for U.S. Senate. The Office of Special Counsel recommended that Conway be removed from federal service but President Trump ignored that recommendation.

Conway also used her @KellyannePolls Twitter account which she used for both personal and official government business to violate the Hatch Act over 50 times. Conway left her position for reasons totally unrelated to her Hatch Act violations. No discipline was ever enforced against her.

The Republican National Convention featured multiple Hatch Act violations. Secretary of State Mike Pompeo gave a convention speech while serving as chief diplomat in Israel. Senate-confirmed presidential appointees are not supposed to attend political party conventions. Also, Acting Secretary of Homeland Security Chad Wolf presided over an immigration naturalization ceremony doing a pre-taped event that was aired during the convention.

Secretary of Education Betsy DeVos disseminated a clip of her appearance on Fox News through official Department of Education email. The clip criticized Joe Biden. The Office of Special Counsel is investigating DeVos. Housing Secretary Ben Carson wrote an op-ed for the Wall Street Journal critical of Biden housing policy that he distributed to housing department employees via HUD email.

White House Director of Social Media Dan Scavino Jr. violated the Hatch Act by advocating for the defeat of Rep. Justin Amash (R-Mi), a Trump critic. Scavino’s Twitter account showed him standing in the Oval Office next to the official Presidential flag with a header photograph showing Trump giving a speech behind a lectern with the official presidential seal.

At the same time as Trump Administration officials skate through Hatch Act violations, lesser federal workers are penalized. I would cite the case of Gregory Davis, a federal police officer with the Bureau of Engraving and Printing. Davis is a union shop steward.

In August 2019, he sent an email from his work computer on work time to his fellow officers in the police union that listed the platforms of the Democratic presidential candidates. Davis criticized Trump for failing to support federal workers. He was reprimanded. Davis called his case “a one-time event” but he said the scrutiny he received from the Office of Special Council “made me feel like I committed a felony”. Fortunately for Davis, the union is covering his attorney fees. His investigation is ongoing.

A Defense Logistics Agency employee was suspended for 30 days without pay last fall after giving office employees a Power Point that displayed the words “Vote Republican”.

A Food and Drug Administration employee received a 120 day suspension without pay in July after creating a Facebook page with his name and photographs to solicit political donations. He had also co-hosted a fundraiser.

Fairness dictates that the law should be applied consistently regardless of an employee’s rank. The double standard around the Hatch Act is a form of corruption. One standard for the rich and powerful officials connected to the Trump Administration and another standard for everyone else.

The Hatch Act has actually served us well. Removing the barrier between partisan politics and government only promotes the unethical abuse of public service. I have found the partisan use of the White House by the Trump campaign contrary to the spirit of the Hatch Act. The White House, though a temporary home to the President, is the symbol of the government, a federal building that belongs to the people. It should not be reduced to being a prop for any political campaign.

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Fair Wayne Bryant wins parole – posted 10/18/2020 and published in the Concord Monitor on 10/22/2020

October 18, 2020 1 comment

Back in August I wrote a column about Fair Wayne Bryant, an African American man from Louisiana who was serving a life term in prison for stealing a pair of hedge clippers. The Louisiana Parole Board has now voted 3-0 to parole Bryant. After 24 years in prison, Bryant is a free man.

Bryant was a victim of Louisiana’s habitual offender laws. Such laws allow prosecutors to seek harsher sentences if a person had prior convictions. Bryant had four felonies although only one was for a violent offense.

The Parole Board noted that Bryant had participated in drug and anger management programs when in prison. His only prison infraction over the last five years was a write up for cigarettes.

He has the support of the Louisiana Parole Project, a non-profit that helps released prisoners adjust to freedom. Bryant plans to live with his brother in Shreveport. Under the ruling of the Parole Board, Bryant must abide by a 9pm to 6am curfew, must perform community service and participate in Alcoholics Anonymous.

After the parole hearing, Bryant’s lawyer, Robert Lancaster, commented:

“Because of his prior history of petty crimes to fuel a drug addiction, Mr. Bryant was sentenced to a life in prison rather than given the help he needed to recover from his drug addiction. Finally, after 24 years in prison, he has been given a second chance.”

It is worth noting that Bryant had previously been denied parole three times in 2015, 2018 and 2019. It was only after the Louisiana Supreme Court denied Bryant’s request for review of his sentence this year that the momentum shifted and Bryant’s parole efforts gained traction.

The media covered the story because the punishment was so disproportionate to the crime and also because the Chief Justice of Louisiana’s Supreme Court, Bernette Johnson, dissented from the Court’s decision. Chief Justice Johnson, the only African American on the Court, wrote a scathing opinion.

She wrote that Bryant’s sentence was a modern manifestation of Jim Crow era laws where black people were jailed for petty offenses. Those laws were called Pig Laws and they were widely used in the South in the period after Reconstruction ended and for many years after.

I know one question jumped out at me when I learned about Fair Bryant’s case: how could he have gotten such an extreme sentence? I think the answer to that question is impossible to understand without a grasp of Black history.

Exceedingly harsh penalties were meted out for property crimes related to poverty. “Crimes” like vagrancy, insulting gestures, unemployment or starting a job without the approval of the previous employer were common. In the aftermath of slavery, the white power structure used Southern criminal law as a form of social control.

While the oppression of slavey is now more recognized, the systematic abuse of the court system to hold hundreds of thousands of African Americans in a different form of slavery remains underappreciated. The period of time after 1877 was a re-enslavement process. In his book, Slavery By Another Name, Douglas Blackmon describes how it worked.

Convicts had no meaningful rights. Many were hit with court costs and fines which had to be worked off to pay their debt to the state. Prisoners were sold as forced labor to farms, plantations, lumber camps, railroads and Southern corporations. Many died in performing this work and many more were subject to brutal conditions including lashing.

The Thirteenth Amendment to the federal constitution outlawed slavery but it included one exception: slavery and involuntary servitude were unconstitutional except as punishment for crime. This exception turned out to be a gaping hole. The exception allowed convict leasing and later chain gangs and prison farms. This was especially true after federal troops left the South and the Democrats of the later 19th century installed a totalitarian system.

Fair Bryant’s extreme punishment is closely related to this racist history and is essentially a continuation of earlier racist practice. Black people make up 79% of those convicted as habitual offenders. The majority of people (69%) who serve time in Louisiana under the habitual offender statute are there for non-violent crimes.

The habitual offender law is carrying on into the 21st century the racist system where black people were jailed for long periods for petty crimes. Except superficially, the South has still not reckoned with its history

After Fair Bryant’s parole, the Executive Director of the Louisiana ACLU, Alanah Odoms, said,

“Now it is imperative that the Legislature repeal the habitual offender law that allows for these unfair sentences and for district attorneys across the state to immediately stop seeking extreme penalties for minor offenses.”

It is great Fair Bryant got parole. It was long overdue. No one can give him back the years he lost because of his unjust sentence. However, we can consider all the other Fair Bryants who languish in prison under similar circumstances.

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First snow – posted 10/17/2020

October 17, 2020 Leave a comment
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Putting Antifa into perspective – posted 10/11/2020 and published in the Concord Monitor on 10/30/2020

October 11, 2020 Leave a comment

During this presidential campaign, President Trump has been very focused on attacking and demonizing Antifa. A few times he has threatened that he would designate Antifa a “terrorist organization”, even though he lacks the power to do that. Trump has conflated the large anti-racist demonstrations of this summer with Antifa and the radical left.

From watching Trump, you might think Antifa is a group or organization with members, a leadership structure and funding. If you think that, you would be wrong.

Antifa is leaderless. It is not an organization. The writer, Mark Bray, who wrote a book about Antifa, defined it this way:

“Antifa can be described as a kind of ideology, an identity, a tendency or milieu, or an activity of self-defense.”

In his effort to create a narrative about the threat to law and order, Trump has utilized Antifa as a bogeyman. He is greatly overblowing its significance. That is not to say that there are not some leftists who identify with Antifa but they are a relatively small number of activists.

Trump is using Antifa to gin up fear. He is trying to create the impression that some shadowy cabal of leftists is the number one threat to public safety. In this effort he is not alone. Among others, Senator Ted Cruz has indulged the same fantasy as has Attorney General William Barr.

Farther out on the Right, anti-semitic conspiracy theorists promote Antifa conspiracy theories with George Soros as its secret funder.

The Right presents Antifa as some sort of aimless agent of chaos led by people who hate America. This is an absurd misrepresentation but it serves a political agenda: it deflects attention away from the genuine threat of extreme right wing domestic terrorism.

As most recently evidenced by the plot against Governor Gretchen Whitmer of Michigan, there is a real Far Right threat. Six men, some members of the Wolverine Watchmen, an anti-government militia group, were arrested in connection with an alleged terrorist plot to kidnap, try, and possibly murder Governor Whitmer. In addition to the six who face federal charges, seven others face state weapons charges.

White supremacists, neo-nazis, the Boogaloo Bois, the Proud Boys and assorted haters have been mobilized by Trump. Boogaloo supporter Steven Carrillo was arrested in May for an attack on a federal courthouse in Oakland that left a security officer from the Federal Protective Services dead.

I think of the murder of Heather Heyer in Charlottesville, the Pittsburgh synagogue shooter who killed 11, the El Paso mass murderer at a Walmart who killed 23 and Islamophobic attacks by white supremacists burning down mosques. There is only one example that occurred in Portland, Oregon where an individual linked to Antifa committed a murder.

Overwhelmingly, the threat to public safety comes from extreme right domestic terrorists – not Antifa and the Left. Trump is deflecting because white supremacists and neo-nazis are part of his base and he wants to maintain their enthusiastic support.

As a Jewish person and as someone who identifies with anti-fascism, Antifa needs to be put in the proper perspective. Antifa is short for anti-fascism. The tradition of anti-fascism is noble and it goes back 100 years.

After Auschwitz, Treblinka and the Holocaust, anti-fascists are committed to Never Again. I think of the political tradition that opposed Mussolini and Hitler and fought against the Franco fascists in the Spanish Civil War. The Abraham Lincoln Brigade, the Americans who fought against fascism in Spain, comes to mind.

I also think of the British example of the battle of Cable Street in 1936. Jews, trade unionists, and all varieties of leftists prevented a planned fascist march through London’s main Jewish neighborhood. The battle of Cable Street has been held up as a model by many contemporary anti-fascist groups.

It seems that most people who talk about Antifa know nothing about it. Antifa is a decentralized collection of individual activists who believe in aggressive opposition to Far Right movements. Some are non-violent while some believe the Nazis in Germany would never have been able to come to power if people had more aggressively fought them in the streets in the 1920’s and early 1930’s.

In 2020, I think it is a big mistake for progressives, Antifa included, to engage in violence. A progressive movement for social change in America must be built upon non-violent principles. I think Antifa tactics have sometimes been wrong-headed. That said, non-violence does not mean passivity in the face of a new American fascist movement. Fascism must be aggressively opposed at every turn and that includes self-defense.

Historical experience shows how fascists will try and turn civil liberties to their advantage. Their threat must not be minimized. In her new book, Culture Warlords, Talia Lavin graphically exposes this danger.

There is no equivalence between tiny Antifa and the much larger Far Right domestic terrorists who have murdered many.

Trump has created such a hysteria of Antifa fear-mongering that pseudo-events can be manufactured. Back in June, the small town of Forks, Washington had exactly this experience. Twitter and Facebook promoted claims that Antifa was coming to rural towns and suburbs. Supposedly, they would be wearing black and coming in buses. Word went out and in a short time many armed locals congregated to deal with the Antifa threat.

The only thing was, the story was a total fabrication created by an online white supremacist. A brown-skinned man with his family had come into the Forks area to camp. The family had nothing to do with Antifa and they just wanted to camp out. The family was harassed, threatened and followed. After a terrifying night, the family fled the town. When al the facts came out, the town of Forks ended up humiliated. Hysteria resulted in an innocent family being terrorized.

Trump has promoted the Antifa fantasy, going on FOX speaking darkly of a plane full of black-clad “thugs” wanting to do “big damage’. Truth is a casualty that never matters to Trump. What matters is whether the story he concocts can sell.

The law and order narrative Trump is selling is his effort to recreate the Richard Nixon strategy from 1968 where Nixon successfully ran on the law and order theme. His exaggeration of Antifa is a sideshow of embellished imagination. The reality of Antifa is not remotely like the fantasy of mayhem Trump spins.

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How the Trump Administration’s Response to the Pandemic Failed – posted 10/4/2020 and published in the Concord Monitor on 10/11/2020

October 4, 2020 Leave a comment

For many months President Trump has downplayed the seriousness of the coronavirus pandemic. Last week he said the virus “affects virtually nobody”.

What a difference a week makes. He has said “the end of the pandemic is in sight”. It is “right around the corner”. The virus “will simply disappear”. All this was before his personal experience with the virus upended those assertions.

Trump has minimized the need for health measures like masks and social distancing. Only very occasionally did he ever wear a mask. He openly mocked people who wore masks. At the presidential debate, playing Mr. Macho, he mocked Joe Biden for wearing a mask.

For Trump supporters, wearing a mask was seen as anti-Trump. Not wearing a mask was a point of pride. Trump rallies have featured large packed crowds where no one social distances or wears masks. The stupidity of politicizing a public health measure like mask wearing remains underappreciated by at least a swath of the public.

Trump provoked a national movement against mask mandates. The internet is full of videos of people not wanting to wear masks in stores. Trump’s anti-mask attitude has endangered his own staff who have been strongly discouraged from masking. He treats masks like they are a sign of weakness.

In the context of a pandemic, treating the need for masks as an individualist civil libertarian issue is perverted. What about the idea of sacrifice for the common good? Can we still as Americans transcend the private interest for the good of all?

Republicans have repeatedly appeared at political events without wearing masks. Most recently, witness the Amy Coney Barrett super spreader White House event. Back in March the CDC had told the White House and everyone that the routine wearing of masks reduced spread of the virus but Republicans have not paid heed.

Rather than listening to genuine experts like Dr Anthony Fauci, Trump relies on unqualified medical sources like Dr Scott Atlas, a radiologist with no background in infectious diseases. Dr Atlas has downplayed the importance of masks. He has also argued for less testing and for an outlier theory of herd immunity. NBC News reported that Dr Robert Redfield, the CDC Director, was overheard on a commercial plane flight talking about Dr Atlas saying, “Everything he says is false.”

For Trump, re-election has been the top priority and he has demanded that states re-open too quickly. Trump has believed that restarting the economy boosts his re-election possibilities. Of course, he is not alone in trying to minimize and disappear the pandemic. Many Republican governors, like Rick DeSantis and Greg Abbott, have followed his lead.

Trump has hawked Hydroxychloroquine, an anti-malarial drug, as a miracle cure for coronavirus. He also suggested injecting disinfectant. By all reports, contrary to his drug advocacy, he is not taking Hydroxychloquine now. He is taking Remdesivir.

Regarding the coronavirus, Trump has engaged in magical thinking. Science and public health have been set aside in favor of spin and quack cures. Trump has acted like he was some kind of Superman not subject to mere viruses. But then, he got the virus. Superman is now Clark Kent.

Part of the magical thinking was the fantasy that the Trump Administration’s response to the pandemic has been effective. Trump gives himself very high grades for pandemic response even though we now have almost 210,000 deaths and deaths and infections are spiking up. It is estimated there will be 300,000 deaths in America by the end of the year. This staggering death toll is a catastrophe of the first order.

The United States has 4% of the world’s population and 22% of the COVID-19 deaths. Spinning this record as anything but an unmitigated disaster takes chutzpah.

Unlike countries like Germany, South Korea and New Zealand, countries that all took masking and social distancing seriously, the United States has failed to implement national policy based on public health principles. Left in the dark, states compete and go their own way with no uniformity.

In being asked about the pandemic, a Vanderbilt University Medical Center doctor, Dr William Schaffner, has said,

“The U.S. response – I exaggerate not – is a textbook example of how to do it wrong.”

Compared to European countries, Japan and South Korea, the United States matches up poorly on the pandemic. Those countries all took science and public health seriously. As a result, they have suffered far fewer casualties and they have been able to get back to closer to normal faster.

What would it mean to listen to science now? We would stop pretending COVID-19 is a minor threat that is under control. We would take masking and social distancing seriously as a mandated universal national policy. We would not re-open restaurants and bars before it is safe.

As has been pointed out, if we had taken the threat of COVID-19 seriously and we had a national policy mandating masks and promoting social distancing, thousands of those Americans who died from the virus would be alive now.

There are deeper reasons for our terribly flawed pandemic response: inaction by Trump in the early months, mixed messaging, relying on the private rather than the public sector and the spread of misinformation about the virus.

Cornell University researchers released a study analyzing 38 million articles about the pandemic in English language media around the world and they found “Trump made up nearly 38 percent of the overall ‘misinformation conversation’, making the President the largest driver of the ‘infodemic’ – falsehoods involving the pandemic”.

It did not have to be this way. It would be progress if we recognized, contrary to Trump’s arguments, that the end of the pandemic is not right around the corner. Happy talk is lies.

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October – posted 10/2/2020

October 2, 2020 1 comment
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