Archive for November, 2021

Lawyer misconduct and January 6 – posted 11/27/2021

November 27, 2021 Leave a comment

January 6 is a story that keeps unspooling. There are layers and layers and we keep finding out more. Jonathan Karl’s new book, Betrayal, is a treasure trove of revealing details.

Our former president was obsessed with staying in power. As Karl shows, his coup attempt went deeper than has been recognized. Much planning, especially by lawyers, went into the coup effort.

We recently learned that not only Trump lawyer John Eastman had a blueprint for a coup but so did Jenna Ellis, a promoter of biblical law and another member of the Trump legal team. Ellis’s memo was very much like Eastman’s.

Ellis saw Vice-President Mike Pence as potentially the key January 6 actor. Ellis believes that the Vice-President has unilateral power as President of the Senate to decline to count electors sent to Congress by the states. She wanted Pence on January 6 to reject electoral votes from Arizona, Georgia, Nevada, Michigan, Pennsylvania and Wisconsin.

Her notion was very outside the traditional view that the constitutionally prescribed role of Vice Presidents is ceremonial during the electoral vote count. Ellis’s memo argued that Pence should halt the Electoral College vote count on January 6 and give until January 15 for states to send a new set of votes. If no new votes arrived by January 15, Ellis argued those states’ votes would not be counted.

At that point, with no candidate having 270 electoral votes, the election would be thrown into the House of Representatives pursuant to the 12th Amendment. Because each state gets one vote and because the Republicans controlled a majority of state delegations, Ellis argued that throwing the election to Congress would result in a Trump victory. She conveniently overlooked the fact that Joe Biden won the six battleground states she cited.

On New Years Eve last year, Mark Meadows, Trump’s last Chief of Staff, emailed Ellis’s memo to Vice President Pence. Trump’s plan was to ratchet up the pressure on Pence. Trump also had his baggage handler turned head of Presidential Personnel, Johnny McEntee, write a historically inaccurate memo to Pence entitled “Jefferson used his position as Vice President to win” . McEntee passed this memo along to Marc Short, Pence’s Chief of Staff, on January 1.

At the rally on January 6, Trump told supporters:

“If Mike Pence does the right thing, we win the election. Mike Pence is going to have to come through for us, and if he doesn’t, that will be a sad day for our country.”

I also should mention the scheme engineered by lawyer Jeffrey Clark that preceded January 6. Clark was head of the Justice Department’s Civil Division and he was in cahoots with Trump. On January 3, Clark told Jeffrey Rosen, the Acting Attorney General, that Trump was planning on installing him in place of Rosen. Clark wanted the Department of Justice to send a letter to state legislatures suggesting they convene special sessions and appoint new electors due to alleged election improprieties.

Rosen and Acting Deputy Attorney General, Richard Donaghue nixed Clark’s proposal. Donaghue told Clark that the Justice Department leadership would resign en masse if Trump appointed Clark. According to Donaghue, White House counsel Pat Cipollone referred to Clark’s proposal as a “murder-sucide pact”.

The actions of Eastman, Ellis and Clark are in a different realm than simply offering crackpot advice. They were furthering a criminal scheme to use pseudo-legal theories to overturn the will of the people. Trump was attempting to stay in power despite losing. To try and achieve their goals, Trump’s lawyers consistently pushed the Big Lie of election fraud. Over 60 court decisions later, no court supported any allegation of voter fraud.

Lawyer misconduct usually is about mundane things like stealing client money, routine incompetence, conflict of interest and failing to advise clients in their cases. Lawyers sometimes get fined, suspended from practicing or disbarred.

There seems to be a problem though when the lawyer crimes are bigger. It is almost like we lack the words to describe the crimes because the crimes are supersized. Professional conduct committees that oversee lawyer conduct are unfamiliar with cases where lawyers lie to advance seditious conspiracies designed to obstruct Congressional proceedings like the Electoral College.

I would suggest that lawyers like Eastman, Ellis and Clark are not engaged in offering “legal” advice. Professional lying to advance the fascist overthrow of a constitutional republic is something else. It is entirely predictable that these lawyers will claim executive and attorney-client privilege but privilege does not extend to communications by lawyers who are participating in a crime.

One federal judge who has had the courage to call out what is going on is Judge Linda Parker of Michigan. She ordered Trump lawyers, Sidney “Release the Kraken” Powell and Linn “Q’Anon” Wood, to pay legal costs of state and local officials in Michigan who had to respond to the phony voter fraud allegations. In her opinion, Judge Parker wrote:

“This lawsuit represents a historic and profound abuse of the judicial process. It is one thing to take on the charge of vindicating rights associated with an allegedly fraudulent election. It is another to take on the charge of deceiving a federal court and the American public into believing that rights were infringed, without regard to whether any laws or rights were in fact violated. This is what happened here.”

Judge Parker lambasted lawyers Powell and Wood for building a case on “fantastical claims and conspiracy theories”. She ordered them to complete twelve hours of legal election on litigation and election law. She also ordered that copies of her opinion be sent to authorities where Powell and Wood are licensed to investigate attorney misconduct. Judge Parker found Powell and Wood violated their obligation to the Court and the ethical rules they are bound to follow as licensed attorneys.

Broadly speaking, the response by the American Bar and Judiciary to the authoritarian threat posed by the coup-engaged lawyers has been weak, almost somnolent. The best response I have seen was a December 2020 letter signed by over 1500 lawyers and two former American Bar Association presidents who called for an ethical probe of lawyers making false claims of election fraud.

After January 6, the American Bar Association President, Patricia Lee Refo, released a statement condemning the assault on the Capitol and supporting the peaceful transition of power. Since then, from what I can see, the response from the legal community has mostly been silence. You have to ask: where is the outrage?

Normalizing the behavior of the Trump lawyers who routinely file frivolous claims and make false statements only guarantees more of the same. History shows that the best cover for the advance of authoritarianism is the appearance of legality.

The constellation of Trump lawyers has run the gamut from conventional Republican establishment (Cleta Mitchell), publicity-seeking (Rudy Giuliani), deranged (Powell), conspiracist (Wood) to far right ideological (Eastman and Ellis). Karl reported that no less than William Barr, Trump’s previous Attorney General, told Trump his legal team was a “clown show”.

To one degree or another, all violated their ethical duty of candor to the tribunal by spreading a false narrative on behalf of Trump. Some like Eastman and Ellis furthered a conspiracy to interfere with the electoral vote count. In California, the States United Democracy Center, a non-partisan organization advancing free, fair and secure elections, has requested an investigation of whether Eastman violated California’s Rules of Professional Conduct. I am unaware of any proceedings against Ellis or Clark.

The Trump lawyers, especially those most involved in the coup attempt should face discipline up to and including disbarment. Being a hired gun should not mean you get a pass on conspiring to kill democracy.

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Recognizing and remembering Fannie Lou Hamer – posted 11/21/2021

November 21, 2021 Leave a comment

In recognizing and acknowledging heroes of the modern-day civil rights movement, a number of male names come immediately to mind but not so many female names. I would like to elevate and highlight Fannie Lou Hamer for her under-recognized contributions to the civil rights movement. Her story is not well-known.

Born in 1917, Hamer was the youngest of twenty children. Her parents were Mississippi sharecroppers, engaged in a constant struggle for survival of their family. Starting when she was six, she had to pick cotton. By the age of thirteen, she was picking 200-300 pounds of cotton daily. Considering that she suffered from polio and had a gait problem with a limp, that is impressive.

Her family was often hungry. Her mother fed her children greens with flour gravy. Hamer did not own shoes. She tied rags to her feet in the winter.

Hamer only got six years of schooling and had to drop out of school at age twelve to work full-time picking cotton on a plantation. She went to school after harvest as the limited education that was available was organized around work production needs.

Because of her literacy, the plantation owner selected Hamer as the time and record keeper at the plantation. She worked there for eighteen years and that is where she met her future husband. Her parents had unsuccessfully tried to escape the plantation by renting a farm, buying mules and tools for farming. However, a white neighbor poisoned their mules. This set the family back into debt peonage.

This was a time when blacks were absolutely expected to be subservient to white people. Whites controlled where black people could live and where they could work. Any transgressions in how black people acted would be met with devastating consequences. When she was eight, Hamer experienced the lynching of a black man who had spoken up when he was not paid for his work.

In 1961, Hamer went to the doctor for what she believed was a uterine surgery for a tumor. Without her knowledge or consent, she was sterilized by a white doctor. Hamer coined the phrase “Mississippi appendectomy” to refer to such hysterectomies. Involuntary medical procedures were part of Mississippi’s plans to reduce the number of impoverished blacks in the state. White supremacists deemed blacks unfit to reproduce.

By the early 1960’s, only five percent of Mississippi’s black people were registered to vote. Blacks were entirely shut out of the political process. In spite of the Fourteenth and Fifteenth Amendments, mob violence, grandfather clauses, poll taxes and literacy tests were all part of a comprehensive scheme to deny the franchise to black citizens.

Until 1962 Hamer never knew that black people could register and vote. On August 23, 1962, she went to hear Rev. James Bevel of the Student Non-Violent Coordinating Committee or SNCC speak. That was a night that changed the trajectory of her life. After learning of her constitutional rights, Hamer volunteered for SNCC to register people to vote.

Possibly readers will remember the movie Mississippi Burning. Or the Nina Simone song Mississippi Goddam. Registering black voters in Mississippi in the early 1960’s was genuinely life threatening. Think Chaney, Goodman and Schwerner.

When Hamer went to register to vote in Indianola, Mississippi she was met by a wall of armed guards at the door of the courthouse. You might have thought she and her activist friends were breaking into a bank.

In her biography of Hamer, Until I am Free, the historian Keisha N. Blain described the scene. As part of registering to vote, Hamer and other activists were forced to take literacy tests. The registrar produced a section of the Mississippi constitution about de facto laws and asked her to interpret its meaning. Hamer said, “I knowed about as much about a de facto law as a horse knows about New Year’s.” She went on:

“By the time the eighteen of us going in two by two had finished taking the literacy test – now there’s people, mind you, there that day with guns, dogs and rifles. Some of them looking exactly like Jed Clampett with the Beverly Hillbillies, only they wasn’t kidding.”

On the way home from the failed attempt to register, the police stopped the old school bus in which they were traveling. The police charged the driver for driving a bus that was “too yellow” and forced the bus to return to the courthouse. The passengers had to pay an expensive fine to resolve the matter but they made it home safely.

That night the plantation owner where Hamer worked came by and told her that she had to leave the plantation unless she withdrew her voter registration. Hamer left the plantation but refused to withdraw her voter registration. Several nights later, white supremacists sprayed her house with bullets.

In 1963, after attending a voter workshop in South Carolina, the police in Winona, Mississippi dragged Hamer to jail after she had stopped to get a bite to eat. The owners of the cafe where she stopped would not serve black people. The police viciously assaulted Hamer physically and sexually. She was hit with a blackjack. She suffered permanent damage to her kidney and a blood clot in her left eye that hurt her vision. It took a month to recover from the assault.

Hamer had to take the literacy test to vote three times before she passed. Such tests were ultimately outlawed by the Voting Rights Act of 1965. Hamer’s persistence made me think of a James Baldwin quote:

“Not everything that is faced can be changed but nothing can be changed until it is faced.”

In that time, the Mississippi Democratic Party barred black participation. When Hamer co-founded the Mississippi Freedom Democratic Party in the summer of 1964 she became a prominent national figure. She and other activists protested the all white delegation at the Democratic National Convention held in Atlantic City, New Jersey.

Hamer argued that her delegation should be the official delegation from Mississippi to the convention. She spoke to the Credentials Committee. President Lyndon Johnson was so freaked out that he gave an emergency press conference to pre-empt and distract from her speech. Johnson wanted to prevent her testimony from getting a wide audience since he feared losing the Southern white vote. Johnson’s ploy did not work.

Hamer’s speech was aired later over the three networks. It vividly recounted Mississippi realities. Hamer had a gift for public speaking. The civil rights activist Eleanor Holmes Norton described Hamer as “an unbelievably brilliant orator and conceptualizer…You’ve never heard a room flying like one Fannie Lou set afire”.

Johnson’s Vice-President Hubert Humphrey tried to persuade Hamer and the other Mississippi freedom activists to accept a compromise that would allow token representation of two non-voting representatives. Hamer refused. Hamer lost in 1964 but her actions did lead to change in 1968. The Democrats required equality of representation at their conventions after that.

Hamer remained active in the civil rights movement until her death in 1977 at age 59. She was a co-founder of the National Women’s Political Caucus which was started to recruit more women of all races to run for office. Hamer helped thousands of African Americans to become registered voters.

Historian Blain correctly notes how Hamer speaks directly to our time with voting rights again under attack. This time it is the Republican Party that has organized nationally, passing laws to make it harder to vote. The Republicans are today’s Jim Crow Party dedicated to white supremacy. Their voter suppression efforts must be vigorously opposed.

Those who may be discouraged or frightened by the voter suppression going on now can obtain strength from Hamer’s example. She successfully fought under far more trying circumstances than currently exist. To quote her:

“We have a long fight and this fight is not mine alone. But you are not free whether you are white or black, until I am free. Because no man is an island to himself. And until I’m free in Mississippi, you are not free in Washington; you are not free in New York.”

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History shows how to respond to the authoritarian threat – posted 11/12/2021

November 12, 2021 2 comments

Unlike many nations, America, for generations, has had a two party political system. That has long been the normal. Sometimes Democrats would win and sometime Republicans would prevail. That old normal may soon disappear because one party, the Republicans, have degenerated into an anti-democratic cabal. They want to eliminate the possibility that Democrats could ever win a national election.

The process of degeneration has been multi-faceted. Our former president turned his party into a cult of personality devoted to his Big Lie of election fraud. If you are a Republican who does not agree with the Big Lie, you are likely to have been ostracized, threatened or punished. You will be primaried or forced to retire. Witness Liz Cheney, Anthony Gonzalez and Adam Kinzinger. You must pledge loyalty to the Big Lie.

The party, which used to be conservative, is now supportive of whatever Trump wants, no matter how ridiculous. Republican leaders like Marjorie Taylor Greene called Republicans who voted for Biden’s infrastructure bill “traitors”.

Republican silence around Trump’s failed coup on January 6 is telling. New Hampshire Governor Chris Sununu is a good example. He maintains a cowardly silence about Trump since he is afraid to alienate the Trump base. That Is typical of many Republicans who privately despise Trump. No one will ever be writing a book about Sununu titled “Profiles in Courage”.

The Republicans have been taken over by extremists and Q’Anon conspiracists who had planned to keep Trump president indefinitely. In 2020, they came close to succeeding.

Their focus is now on gerrymandering, changing voting laws and election personnel to put into place their loyalists. The former Executive Director of the Michigan GOP, Jeff Timmer, summarized:

“It’s kind of scary looking ahead because the Republicans are making no secret about their plans to create chaos and throw a monkey wrench in the gears of the next election trying to put people in place who will go beyond what the law allows and to do things in the next election that they didn’t feel they had people in place to do in the last one.”

There are many things to say about how the Republicans are killing democracy. They weaken elections by making it harder to vote. In swing states like Georgia, Arizona, Nevada and Michigan, they hope to replace state Secretaries of State with Big Lie partisans. You have to wonder about bias if such people are overseeing and administering elections.

Additionally, Republicans target and demonize outsiders like immigrants. They weaponize fear and embrace violence as in January 6, threats to other Republicans who voted for Biden’s infrastructure bill, and Rep. Paul Gosar’s social media. They attempt to rewrite American history by erasing white supremacy and racism using the utterly false excuse of critical race theory. They use racism to divide and conquer.

Sadly, the Democratic response to the increasing authoritarianism is less than impressive. Not recognizing the urgency of the threat, the Democrats bicker among themselves, increasing the chance of Republican victory in 2022 and 2024. Most people don’t care about Senators Manchin and Sinema and excuses for failing to deliver. If you promise a lot, you must deliver.

Along with the lack of urgency among the Democrats is the weak response by the Department of Justice (DOJ) to the authoritarian threat. So far, Attorney General Merrick Garland has done little to hold Trump and his circle accountable for their crimes. Insufficient pressure has been exerted to punish Trump and his January 6 co-conspirators. Apparently, the DOJ only goes after little fish.

Time is of the essence as Trump is playing a delay game. I expect he is hoping to use court appeals to run out the clock in the hopes Republican wins in 2022 will squash investigations of his crimes. Delay has always been a key tool in his bag of tricks.

In surveying the big picture, I would suggest a relevant historical example from American history about how to counter rising authoritarianism. During the Great Depression roughly 90 years ago, America faced a homegrown fascist threat from the German-American Bund, America Firsters, Silver Legion and followers of Father Charles Coughlin. These were the Proud Boys, Oath Keepers and Three Percenters of their day.

President Franklin Delano Roosevelt effectively sidelined the fascist threat with his New Deal. Just to recall the time: tens of millions of Americans were desperate, thrown into unemployment and abject poverty. Many looked to Germany as an example for America to follow. This was before things in Germany seriously devolved into mass concentration camps and worse.

President Roosevelt led a radical program of massive government investment and intervention into the economy. The New Deal employed millions of jobless people. Roosevelt invested heavily in public infrastructure. He subjected Wall Street speculators and Big Business to strict regulation.

Roosevelt blamed economic royalists who had managed to gain economic power through what he called “concentration of control”. He warned that fascism was the result of democratic governments failing to enact bold agendas while protecting an economic status quo that enriched small elites at the expense of the masses.

While he can be legitimately criticized for failing to tackle racism, Roosevelt became a beloved figure to millions of Americans because he boldly addressed the economic inequality of his day. He went big and the American people re-elected him four times.

There is a lesson here for Democrats and progressives. We need to follow the FDR example. We need a visionary politics that opposes a corporatist state that concentrates power in the hands of the super-rich at the expense of the many. We cannot go backwards on the progressive agenda whether it is climate change, racism, women’s reproductive rights or economic inequality.

The Democrats and moderates who are saying we should just not be Trump are wrong. That agenda will lead to the return of Trump or a Trump surrogate. It doesn’t provide enough reason to vote.

To defeat the authoritarians, we must invest in our working class to restore faith in democratic government. Democrats are underestimating how much of a disaster it will be if they jettison their most popular initiatives in subservience to corporate donors.

For example, 82% of registered voters support adding dental and vision benefits to Medicare. 72% favor allowing Medicare to negotiate prescription drug prices. 70% support paid family and medical leave. Polling by Priorities USA, a Biden-aligned firm, also found that raising taxes on the rich was the most popular economic proposal.

To the extent the Democrats fail to pass, water down or abandon their most popular initiatives, they will be shooting themselves in the foot. It is not unnoticed that the Democrats keep whittling down social spending on the Build Back Better plan. Nor that it is at the behest of corporate donors.

Corporations do vote-buying as they have done with Manchin and Sinema. It is a form of legalized bribery to buy their desired public policy.Whether it is Republican or Democratic, it is both corrupt and sickeningly familiar.

The best bet for saving our democracy is passage of the strongest, most far-reaching Build Back Better social spending plan. That will motivate a broad array of voters and give citizens solid reasons to turn out and vote.

Beyond that we need to create what the British writer Paul Mason has called “an anti-fascist ethos”. We need an alliance of all people of whatever political stripe who oppose fascism and authoritarianism. Trump created a boogeyman mythology around Antifa that is totally misleading.

To be anti-fascist is to be part of an honorable tradition. In World War II, almost 300,000 Americans fought and died, opposing fascism. In 2021, we need to resurrect anti-fascism so democracy can survive.

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