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Merrick Garland Has To Get It Right This Time

Merrick Garland’s Department of Justice failed to prosecute the Monster of Mar-a-Lago (aka a cancer on America) for obstruction of justice after he was removed from office, even though the Mueller report showed how guilty he was. The Attorney General is now getting a second chance. 

Neal Katyal, a former Acting Solicitor General of the United States, describes “the future criminal case against D____ T____”:

Congress and the Justice Department now find themselves in a complex dance, set to the tempo of the Jan. 6 hearings. The House select committee has already uncovered evidence suggesting that former President D____ T____ committed serious federal crimes.

Congress cannot bring criminal charges; the Justice Department must do so. And critics of the department are asking why it does not appear to be investigating these allegations. The hearings point to a potential answer: The committee is laying a foundation upon which prosecutors can build in a subsequent investigation.

And a subsequent investigation is virtually inevitable, given the evidence generated by the committee. How could Attorney General Merrick Garland ignore the facts the American people are now learning about?

…Mr. Garland has in the past been cagey about whether there is an investigation into the former president. Yet it’s unthinkable that the Justice Department should not pursue one.

A highly respected federal judge, David Carter, has already said in a published opinion that “the court finds it more likely than not that President T____ corruptly attempted to obstruct the Joint Session of Congress on Jan. 6, 2021.” Those are not easy words for the Justice Department to cast aside. If that doesn’t merit an investigation, it’s hard to think what should.

But we’ve seen no signs of such an investigation. Ordinarily, 17 months after a crime, one would expect to see some signs of an inquiry. Witnesses before grand juries wind up talking to the media, for example, or those witnesses may file court actions to try to block the investigation. None of that appears to have happened.

Then again, this isn’t a normal investigation. Mr. Garland has known from the start that Congress is investigating the whole set of facts involving an attack on its own seat of government, and he may have made the conscious choice to hold off until he sees what Congress has developed.

Public hearings serve a subtle function. They permit the minds of the American people to acculturate to the facts and evidence. By laying out the facts that explain what T____ did, the Jan. 6 hearings can in advance help acclimate the public to why the Justice Department has to take criminal action against the former president. The hearings may afford the department a deeper and public explanation of its reasoning than an indictment out of the blue would offer. Public sentiment of this kind could help insulate the department against a claim that it is politically motivated. These hearings may prove to be a bridge between the Justice Department and the public….

What would criminal charges against D____ T____ look like? Obstruction of an official proceeding is a serious offense that requires the prosecution to show that a defendant obstructed, or attempted to obstruct, an official proceeding and that the defendant did so corruptly. The official proceeding part of this is clear — by law, on Jan. 6, Congress and the vice president must certify the votes. There appears to have been an orchestrated plot by some to try to interfere with that certification — the question is really whether the former president was part of that plot. The committee has presented evidence suggesting that Mr. T____, along with the lawyer John Eastman, and perhaps others such as the White House chief of staff, Mark Meadows, and Jeffrey Clark, a former Justice Department official, attempted to interfere with the election certification on Jan. 6. Before the hearings, it was thought that Mr. T____’s defense against this charge is that he genuinely believed that he had won the election and wasn’t acting “corruptly.”

The testimony in last week’s hearing cast immense doubt on that claim. Mr. T____’s close ally, former Attorney General William Barr, testified that he told the president that arguments claiming he had won the election were “bullshit.” Mr. T____’s daughter Ivanka testified that she believed Mr. Barr. Mr. T____s own election data people told him the same. Mr. T____ might try to claim he still believed the nonsense, but such an argument would be difficult to make given the array of people who told him in no uncertain terms that he had lost. Mr. T____ persisted, despite the warnings, to try to interfere with the lawful transfer of power. This looks very much like an attempt to obstruct an official proceeding.

The Justice Department could also bring the charge of “conspiracy to defraud the United States.” A charge of conspiracy requires proof that two or more people agreed to defraud the country. A key feature of conspiracy charges is that the plot need not succeed — charges are tethered to the agreement to do something illegal, not to actually pull it off. Prosecutors need not wait until the bomb goes off (or in this case, until the election results are wrongfully thrown out) before bringing charges.

Here, Mr. T____ faces yet another problem: Even if we were to ignore Mr. Barr and others, and accept that Mr. T____ believed he had won the election, courts have ruled that a genuine but mistaken belief is not enough to defeat a conspiracy charge. Oliver North, for example, famously claimed he did not conspire to violate a particular foreign affairs law because he believed that law to be unconstitutional, but the courts threw that claim out. The law does not work that way, and it cannot work that way particularly when people who control the entire machinery of government advance such preposterous claims.

Finally, the Justice Department could bring seditious conspiracy charges. Such charges have already been used by the Justice Department against members of the Oath Keepers and the Proud Boys. This is one of the most serious charges in the federal criminal code, but it’s also the one that is the hardest for prosecutors to bring against Mr. T____.

The charge requires prosecutors to prove that two or more people agreed to use force to delay the execution of a law or to overthrow the government. Here, Mr. T____’s defense would be that while he may have wanted to delay certification of the election, he did not ever formally agree with someone else to use “force.” The communications uncovered by the committee, showing an agreement with Mr. Eastman and others, are not likely to reveal anything about force. As such, while the committee may call some of the invaders of the Capitol seditious conspirators, it is, under the present publicly known set of facts, unlikely to yield that criminal charge against the former president.

Mr. Garland has these charges to consider, and potentially others such as wire fraud, arising out of evidence the committee presented in the second hearing about Mr. Trump misleading his donors. Based on the evidence presented so far, it seems as if the most likely charges are obstruction of an official proceeding and conspiracy, and not seditious conspiracy.

The committee has done a masterful job of starting to present its case to the American people, who are, after all, the first audience for their argument. And it has done so at a time when inflation, war in Ukraine, reproductive rights, gun violence and climate change equally demand our attention.

But the only way we as Americans have control over the decisions of elected bodies and the president in each of these areas is through our votes. If an incumbent president can use the machinery of government to orchestrate a way to throw our votes out, the foundations of our democracy will have crumbled. If you care about inflation, or foreign policy or anything else, you have to care about this. And so too should the Justice Department….

What a Fool or Creep Believes

Back when there was a plague upon the nation (not the plague caused by the virus), the question whether the president was lying or merely mistaken was often discussed. Reputable journalists at reality-based news organizations didn’t want to say he was lying (30,000 times in four years) since maybe he believed all the nonsense he said. So, perhaps he wasn’t lying. It felt safer, less judgmental, to say he was merely saying things that weren’t true (30,000 times).

A very good reason to think he was lying his big boy pants off was that every “falsehood” he shared with us was self-serving. People who are merely confused occasionally say something that doesn’t make themselves look good. Not our former president. He never wavered from his fundamental message: “I’m a winner, not a loser”. He never deviated from the con man’s creed: “Never give a sucker (i.e. the rest of us) an even break”.

As the January 6th committee reviews the evidence, similar questions about this person’s state of mind are being asked. Did he really believe he won the election? Did he really intend to stop Congress from counting the electoral votes?

Josh Marshall of Talking Points Memo argues that trying to figure out what the creep believed is a waste of time:

For T____, there is just what he wants. He “believes” whatever will get him what he wants.

Does he somehow convince himself of this? Like some kind of willed delusion? Stop it. You’re sticking too much to your linear way of thinking about belief. He hasn’t “convinced” himself. Why would he need to and what would that mean? He just says whatever will get him what he wants. Full stop….

Trump doesn’t “believe” anything.

… It cannot be the case that someone can evade legal culpability for a crime by consistently claiming not to know things that are obviously true, that everyone around him says are true, that he has no basis for disbelieving…. Otherwise, it’s a “get out of jail free” card for literally any crime. Just say consistently that you believe Mr. X threatened your life and you’re entitled to murder him without any legal consequences.

As we know from actual trials, you can’t just “believe” anything…. Your belief has to be reasonable….

We don’t need to go down the rabbit hole of the inner workings of [his] mind. That’s his problem. Not ours. As long as we do, we’re chasing a figment where there is only one possible witness: him. That’s silly.

The mob boss who says he’s never been a member of the mob isn’t confused. He’s lying because he doesn’t want to go to prison. That’s obvious. Just as this case is obvious.

One correction I’d make: not “everyone around him” was saying he lost. Rudy Giuliani and other sleazeballs were telling him the opposite. I hope that doesn’t make any difference when he’s prosecuted.

If you want more on this topic, two well-known lawyers who’ve worked for the government wrote an article for Salon about T____’s “criminal intent”:

As apologists prepare to defend his conduct, it is important to realize how shallow their defense will be. It is laughable to suggest that T____ genuinely believed he had won the 2020 election. We already know that experts and advisers told him the election results were legitimate. He heard this from his campaign advisers, Department of Justice lawyers, high-level officials in his own Department of Homeland Security and Republican elected officials [and at least 60 judges!]. T____ knew he had lost a free and fair election, but he wanted to remain in power anyway….

The committee’s work will be helpful, providing key evidence about … what T____ and others were saying and doing in public and what they were admitting in private.

[There is also] a foundation for showing T____’s corrupt intent: his long-established pattern of crying “fraud” to undermine results he didn’t like.

After T____ lost the 2016 Iowa caucuses to Ted Cruz, he cried fraud and demanded a do-over. He did the same thing in the general election after losing the popular vote to Hillary Clinton, despite winning the Electoral College… Throughout 2020, he made a series of statements along these lines … showing that even before the first vote was cast, he had no intention of accepting election results he didn’t like….

Even if T____ could somehow convince prosecutors and a jury that he really believed he had won — despite all the evidence to the contrary —  that would not have permitted him to use dishonest means to stay in power. His legal adviser, John Eastman, made clear that the scheme he and T____ tried to execute to keep T____ in power required breaking the law. You can’t keep power illegally even if you believe you really won an election. But prosecutors won’t need to reach this point, since the evidence is so strong that T____ and those around him knew he lost.

The Right Wing in a Few Words

Somebody on Twitter, Ethan Grey, who says he’s an ex-Republican, tried to summarize the basic “Republican message on everything of importance”:

1. They can tell people what to do.  2. You cannot tell them what to do.

You’ve watched the Republican Party champion the idea of “freedom” while you have also watched the same party openly assault various freedoms, like the freedom to vote, freedom to choose, freedom to marry who you want and so on.

If this has been a source of confusion, then your assessments of what Republicans mean by “freedom” were likely too generous. Here’s what they mean:

1. The freedom to tell people what to do.  2. Freedom from being told what to do.

When Republicans talk about valuing “freedom”, they’re speaking of it in the sense that only people like them should ultimately possess it.

He cites Covid-19 as a recent example:

We were told by experts in infectious diseases that to control the spread of the pandemic, we had to socially distance, mask, and get vaccinated. So, in a general sense, we were being told what to do. Guess who had a big problem with that.

All Republicans saw were certain people trying to tell them what to do, which was enough of a reason to insist that they would not be told what to do. Even though what they were told to do would save lives, including their own.

Another instance:

They claim to be for “small government”, but that really means government that tells them what to do should be as small as possible. But when [they see] an opportunity to tell people what to do, the government required for that tends to be large.

My favorite example of this is how Republicans hate government spending unless it’s for the “Defense” Department, which gets an enormous percentage of the federal budget and is the part of our government best positioned to forcefully tell other people (i.e. the rest of the world) what to do. But parts of the government that can tell Republicans what to do, like the Internal Revenue Service (pay your taxes) and the Environmental Protection Agency (stop polluting), should be starved of funds whenever possible (or abolished, like the Department of Education).

Maybe a Republican could complain about Democrats in the same way — we want to tell them what to do but we don’t want them telling us — but I’m hard-pressed to think of Democratic behavior that fits.

Anyway, Frank Wilhoit, a classical music composer, once tried to summarize conservatism too. This is sometimes called “Wilhoit’s Law”:

Conservatism consists of exactly one proposition, to wit: There must be in-groups whom the law protects but does not bind, alongside out-groups whom the law binds but does not protect.

It’s really the same point Mr. Grey made on Twitter. In fact, Grey offered his own, less elegantly stated, version of Wilhoit’s Law further down in his thread:

1. There are “right” human beings and there are “wrong” ones.  2. The “right” ones get to tell the “wrong” ones what to do.  3. The “wrong” ones do not tell the “right” ones what to do.

Thus, we have various ways to summarize what’s been called “the hypocrisy and moral bankruptcy of the modern Republican Party”. Take your pick.

Who’s To Blame for the Rural Crime Wave? (Not Bleeding Heart Liberals)

Paul Waldman of The Washington Post makes an excellent point: the rising crime rate isn’t an urban or Democratic problem — it’s an American one:

When we think about crime, most of us envision pictures of urban scenes…. So when crime becomes an “issue” — not just a thing that happens but a topic of political argument and debate over policy solutions — that context determines what we decide ought to be done about it.

Which is why some new reporting in the Wall Street Journal [behind a paywall] is such an important challenge to the way we’ve been thinking about crime, now that it has again become a political issue. As the Journal reports, the increase in crime, particularly homicides, that came with the onset of the coronavirus pandemic in 2020 has not just been an urban phenomenon. Rural areas have experienced more murders in recent years, leaving many communities reeling.

Here’s the big picture:

Violent crime isn’t just rising in the nation’s cities. Murder rates across the rural U.S. have soared during the pandemic, data show, bringing the kind of extreme violence long associated with major metropolises to America’s smallest communities.

Homicide rates in rural America rose 25% in 2020, according to the Centers for Disease Control and Prevention. It was the largest rural increase since the agency began tracking such data in 1999.

The individual stories are awful: shootings, stabbings; old victims, young victims; places where a murder happens only once every few years suddenly reporting a half-dozen homicides in a single year.

So how do we explain this? None of the things conservatives blame for crime — progressive prosecutors, lenient Democratic politicians, police feeling disrespected by racial justice protests, a lack of religious piety — are present in these places.

If — as we’ve all been told again and again — voters are fed up with “soft on crime” Democrats and are ready to “send them a message” in November’s midterm elections, to whom should a message be sent about the rural crime wave? And what should that message be?

Violent crime isn’t just rising in the nation’s cities. Murder rates across the rural U.S. have soared during the pandemic, data show, bringing the kind of extreme violence long associated with major metropolises to America’s smallest communities.

Homicide rates in rural America rose 25% in 2020, according to the Centers for Disease Control and Prevention. It was the largest rural increase since the agency began tracking such data in 1999.

The individual stories are awful: shootings, stabbings; old victims, young victims; places where a murder happens only once every few years suddenly reporting a half-dozen homicides in a single year.

So how do we explain this? None of the things conservatives blame for crime — progressive prosecutors, lenient Democratic politicians, police feeling disrespected by racial justice protests, a lack of religious piety — are present in these places.

If — as we’ve all been told again and again — voters are fed up with “soft on crime” Democrats and are ready to “send them a message” in November’s midterm elections, to whom should a message be sent about the rural crime wave? And what should that message be?

The causes of the rural crime wave are as complex as those of urban crime, but at heart they’re about the pandemic. It isolated people from the friends, family and institutions that traditionally provide support. For many it caused sickness and grief. It elevated everyone’s stress level, brought new mental illness, left people feeling angry and powerless. Many took those experiences and tensions out on each other.

You’ve probably seen the effects in small ways in your own life no matter where you live. People seem angrier and meaner, getting into arguments in public and driving more aggressively. You don’t even have to bring in the polarization of our politics; for instance, pedestrian fatalities increased 21 percent from 2019 to 2020, then rose 11.5 percent in 2021, according to preliminary data, reaching the highest level in four decades.

I’m reasonably certain people didn’t start mowing pedestrians down with their cars because Democrats are “soft” on reckless driving. And I’d sincerely like to hear what Republicans think of the rural crime wave, both why it has happened and what might be done about it.

My guess is that they wouldn’t say it’s a failure of political leadership. After all, in many if not most of the affected rural areas, every public official — from the sheriff to the mayor to the county council all the way up to the House member, the senators and the governor — is a conservative Republican.

But when crime goes up in urban areas, Republicans point the finger at local and national Democrats, saying it must have been their policy choices that produced the crime. Turn on Fox News and you’ll learn that cities run by Democrats are hellholes of lawbreaking and mayhem, where atomized individuals scurry around in constant fear for their lives.

But that’s not true; in fact, by some measures New York City is one of the safest places in America. And the states with the highest homicide rates are Mississippi, Louisiana, Alabama, Missouri and Arkansas. Although the governor of Louisiana is a conservative Democrat, the rest are run by Republicans; every one has a Republican legislature. Have they failed to bring down crime because they aren’t “tough” enough?

Speaking of failure, back in 2016, D____ T____ told rural Americans that if they elected him, he would solve all their problems, bring back all the jobs that had been lost and turn their communities into paradise. Yet they still struggle with lack of economic opportunity, high rates of drug addiction and violence.

Addressing those rural problems would require an examination of “root causes” — a focus that conservatives have always regarded with contempt when we were talking about urban crime. But no one is saying that rural White people just need to be punished more harshly so they finally learn to straighten up.

The truth about crime is one that doesn’t lend itself easily to political arguments: It’s complicated. We’d all do well to remember that.

What Does It Sound Like When You Hear Inflation Rose 8% in May?

The Consumer Price Index picked up by 8.6 percent, as price increases climbed at the fastest pace in more than 40 years (New York Times).

If you don’t think about it too hard, it sounds like prices rose 8.6% in May. But that’s not true.

The Department of Labor’s Consumer Price Index actually rose 1.0% in May. The 8.6% increase refers to the fact that the index was 8.6% higher than a year ago.

Would it be too hard for news people to write headlines that clearly conveyed what happened? No, but it wouldn’t sound as “newsworthy” (i.e. interesting) to say prices rose 1.0% in May or that they rose 8.6% in the past year.

What makes this especially annoying is that this is how the government announced the latest inflation news:

The Consumer Price Index for All Urban Consumers (CPI-U) increased 1.0 percent in May on a seasonally adjusted basis after rising 0.3 percent in April, the U.S. Bureau of Labor Statistics reported today. Over the last 12 months, the all items index increased 8.6 percent before seasonal adjustment.

The increase was broad-based, with the indexes for shelter, gasoline, and food being the largest contributors. After declining in April, the energy index rose 3.9 percent over the month with the gasoline index rising 4.1 percent and the other major component indexes also increasing. The food index rose 1.2 percent in May as the food at home index increased 1.4 percent.

The index for all items less food and energy rose 0.6 percent in May, the same increase as in April. While almost all major components increased over the month, the largest contributors were the indexes for shelter, airline fares, used cars and trucks, and new vehicles.

It’s so much easier to simply say, as the Wall Street Journal did:

Inflation Reaches 8.6% in May

Back to the New York Times for an explanation, not a headline:

In the short term, high inflation can be the result of a hot economy — one in which people have a lot of surplus cash or are accessing a lot of credit and want to spend. If consumers are buying goods and services eagerly enough, businesses may raise prices because they lack adequate supply. Or companies may choose to charge more because they realize they can raise prices and improve their profits without losing customers.

But inflation can — and often does — rise and fall based on developments that have little to do with economic conditions. Limited oil production can make gas expensive. Supply chain problems can keep goods in short supply, pushing up prices.

The inflationary burst America has experienced this year has been driven partly by quirks and partly by demand.

On the quirk side, the coronavirus has caused factories to shut down and has clogged shipping routes, helping to limit the supply of cars and couches and pushing prices higher. Airfares and rates for hotel rooms have rebounded after dropping in the depths of the pandemic. Gas prices have also contributed to heady gains recently.

For those who think gas prices are all Biden’s fault, a word from the Deputy Director of the National Economic Council:

A big reason gas prices are up is because companies cut refinery capacity in 2020 under the last administration [you know who’s]. US refinery capacity went down by 800,000 barrels per day. Refiners are now making bigger [profits by] raising prices at the pump.

The second big reason gas prices are up is Putin’s actions in Ukraine and the global response raising oil prices. Pump prices are up more than $1.60 since then. Our response had the backing of Republicans…

At any rate, here is US oil production in thousands of barrels starting in 2020, a year before Biden took office (there is no Biden “War on Oil”):

Untitled

And back to the Times:

But it is also the case that consumers, who collectively built up big savings thanks to months in lockdown and repeated government stimulus checks, are spending robustly and their demand is driving part of inflation. They are continuing to buy even as costs … rise, and they are shouldering increases in rent and home prices. The indefatigable shopping is helping to keep price increases brisk….

Officials say they do not yet see evidence that rapid inflation is turning into a permanent feature of the economic landscape, even as prices rise very quickly.

But nobody knows for sure. One thing I do know is that the Republicans who are blaming Democrats for high inflation have no plan to address it, and cutting taxes for the rich and corporations (their standard, well, only policy idea) would make inflation worse.

In case you’re really interesting, here are the monthly price increase for the past 13 months, which, by my arithmetic, add up to more than 8%:

MAY ’21 +0.7%   JUNE +0.9%   JULY +0.5%      AUG. +0.3%        SEPT. +0.4%              OCT. +0.9%        NOV. +0.7%    DEC. +0.6%     JAN. ’22 +0.6%    FEB. +0.8%          MARCH +1.2%   APRIL +0.3%   MAY +1.0%

I bet June will be lower.

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