FOUR PINOCCHIOS

ARE YOU A "PERSON"?  IF YES, YOU COUNT.  ON THE OTHER HAND, IF I DON'T COUNT YOU, DOES THAT MEAN YOU ARE NOT A PERSON?

 

Trump's answer is "Yes." And the same goes for the Secretary of Commerce, Wilbur Ross, who, to my knowledge, bears the distinction of being the first cabinet officer ever to be called an out-and-out liar by the Supreme Court of the United States.  (The language is mine. The substance of the language belongs to the Supreme Court.)

 

The Constitution, that annoying document that keeps getting in Donald Trump's way, requires a decennial count "of the whole number of persons." Not "citizens," but "persons."

 

How do we do the actual count?  The Constitution left that up to Congress, and Congress left it up to the Department of Commerce, which contains a Census Bureau to handle the details.

 

The counting process is broken down into two phases. First, residents are encouraged to fill out a questionnaire and submit it to the Bureau. Then a phalanx of doorbell ringers sets out to get the information from people who have not timely submitted their forms.

 

The census count is important for a number of reasons:

 

First and foremost, it is used to determine the number of house seats for each state. States with large numbers of undocumented residents are awarded more House seats than they would have received if only citizens were counted.

 

Second, the state count has a huge impact on federal funding.

 

Third, the Census Bureau breaks down its count into "blocks" that show the number of persons in specific neighborhoods in each state. That information count is used by many states in drawing the lines of local election districts, the key ingredient in gerrymandering.

 

In all census inquiries but one in the years 1820 to 2000, respondents were asked about their citizenship status. The question did not appear in the 2010 count. In March, 2018,  Commerce Secretary Ross announced that he had determined to add back the citizenship question to the 2020 census.

 

A number of litigations followed. Challengers asserted that under today's political climate, the question would result in large numbers of undocumented residents shunning the count. To admit to the government that you are here illegally was an invitation to deportation. This was especially so at a time when the President had pledged to deport all undocumented persons. The law forbids the use of census data for such purposes, but let's face it, nobody in his right mind, citizen or non-citizen, would trust this president and his acolytes to obey that law. The easy way out is to avoid the count.

 

Could that be the political motive for Wilbur Ross's decision? Does a bear poop in the woods? It is the large urban centers that contain the most undocumented residents, and it was those large cities that reliably voted Democrat. Reducing the count in states like New York and California would reduce the number of seats those states had in the House of Representatives, and would reduce federal funding to those states as well.

 

Ross of course denied such a motive. Perched atop his white horse, he announced there was a single reason for his decision to restore the citizenship question: the Department of Justice had requested the information to enhance its ability to enforce the Voting Rights Act.

 

Would anybody believe that? Anybody?

 

Certainly not the District Court that made a thorough review of the history of Ross's decision. And certainly not the Supreme Court of the United States which agreed to review the lower court decision directly, skipping the Circuit Court.

 

In an opinion written by Chief Justice John Roberts, the Court found the Ross decision didn't pass the smell test. The documents showed that Ross had learned from his own Census Bureau that adding the question would likely suppress the count of undocumented persons, but he went ahead anyway.

 

While avoiding use of the ancient legal doctrine "Liar, liar, pants on fire!", the Supreme Court found Ross's claimed reason for his decision was "pretextual" and "contrived."

 

The court found that Ross "had determined to add the citizenship question from the time he entered office" and had "instructed his staff to make it happen."

 

The claim that the DOJ request was the basis for Ross's decision was pretextual.  Ross had already made up his mind to add the citizenship question, and then, looking for legal justification, he solicited the DOJ to send him the Voting Rights Act letter. 

Jeff Sessions complied. 

 

And to make matters worse, Ross tried to cover up his lie by misleading the court. In his required submission to the court of the agency's documents related to the decision to add the citizenship question, Ross gave the court the DOJ letter, but failed to give the court the Commerce Department letter soliciting the DOJ letter.  That was arguably a fraud on the court, and perhaps criminal conduct.

 

But somebody in DOJ read the Commerce Department's misleading submission, and demanded that Ross correct the record. Only then did Ross submit his solicitation letter.

 

Conclusion: the Court struck down the Commerce Department determination to add the citizenship question to the 2020 census, finding the submitted rationale for the decision was "contrived"-- court-speech for a "Four Pinocchio" lie.

 

Bottom line, the 2020 census will not have a citizenship question.

 

But Trump has not surrendered. While he cannot get exactly what he wanted, earlier this month he signed an Executive Order that directed all government agencies to report to Commerce all information they had re the location and count of undocumented residents. This, he argued, will help states in redistricting decisions, i.e., gerrymandering. He abandoned the Voting Rights Act lie.

 

And just this week, the Trump All-Star Prevarication Team has come up with a new scheme to suppress the count of undocumented persons.  He has ordered the Census Bureau to "hurry up" the count, the sooner they finish, the better. This, of course, would shorten the second phase of the count, the door-knocking that produces a disproportionate enumeration of the undocumented population who did not respond to written questionnaires.

 

There is no end to this president's effort need to manipulate the voting process to his advantage. Just yesterday, he suggested that because of the pandemic, we should perhaps delay the November 3 election.

 

The suggestion led pessimists to say "See, I knew he would find a way to screw up the election!" But they missed the real point: Trump's suggestion just reveals his recognition that he is way behind and likely to lose, and the more time to recover before election day, the better. Trump is desperate, and panicking.

 

Trump's suggestion also reveals his ignorance of the law and Constitutional mandates. The November 3 date is fixed by statute and is invulnerable to the president's tweets. Moreover, the Trump tweet was met with immediate rejection by Republican legislators, including Mitch McConnell.

 

This TV reality show host is running out of places to hide from reality. The Constitution says unless he is re-elected, he ceases to be president at noon on January 20, 2021.

 

 Period.

 

A bientot.

 

................................................

As my regular readers know, there is no fixed schedule for these posts. If you want

 a notice of each new posting, just send me an email and I will add you to the notice list. 

 mlondon34@gmail.com

 

 

 

 

 

 

 

CALLING BALLS AND STRIKES: IS THE UMPIRE BLIND?

In 2013, the Supreme Court of the United States knee-capped the country's effort to combat the Jim Crow voting restrictions in many southern states. The Republicans won a major victory when the Court struck down the effective part of the Voting Rights Act that prevented disenfranchisement maneuvers such as closing voting polling places in black neighborhoods, purging blacks from voter rolls, and the like.

The rationale of that devastating decision? No, the Court did not find the Voting Rights Act violated the Constitution. To put it in plain English, the conservative majority donned its legislative hat and ruled that inasmuch as the Act was thirty years old, and, things may have sorta changed since then, we'll strike it down and see if this Congress wants to re-enact it! 

(Oh, yeah, I should mention that the vote was 5-4, the opinion was written by Chief Justice Roberts, and the Republicans, with a 33-vote majority in House, did not accept the Court's invitation and did not re-enact the stricken parts of the Act.)

Fast forward to the year 2020, and the Republican president is in trouble. As ever, Florida is a key state, and as ever, its administration of the voting process is chaotic and highly partisan.

In 2018, the voters, in a landslide referendum, (65-35) amended the state constitution, and gave the vote back to felons who had satisfactorily completed "all terms of their sentence, including parole or probation." The effect of this change was seismic.  Estimates of the number of new voters created by the amendment ranged from 750,000 to 1,500,000. And the overwhelming majority of these new voters are black!

Given that Trump carried the state by only 113,000 votes in 2016, it is not hard to see the panic this created in the Republican leadership in the state.

Desperate times calls for desperate measures, and the Republican legislature, facing an existential loss of political power, thumbed its nose at the voters and promptly passed a bill (which Republican Governor DeSantis promptly signed) designed to gut the constitutional amendment. It provided that the phrase "completion of all terms of their sentence, including parole or probation" required full payment of "all fines, including costs and fees."

Further, it provided that any felon who voted without complying was guilty of a felony!

A combine of lawyers (I am happy to report this included my law firm, Paul, Weiss, Rifkind, Wharton & Garrison) immediately attacked the statute, and a federal district court judge entered a temporary injunction against its enforcement. The State appealed, and a three-judge panel of the 11th Circuit unanimously affirmed the temporary injunction.

After a full trial, on May 20, 2020, the District Court again found for plaintiffs, and entered a final injunction against enforcement of the statute. The District Judge found, as a matter of fact and law:

1. The requirement that potential voters needed to pay a fine, or a "cost" taxed in their criminal case was, in effect, a poll tax, and was barred by the 24th Amendment: "The right...to vote...shall not be denied or abridged...by reason of failure to pay any poll tax or other tax."

2. The statute was a violation of Equal Protection and Due Process clauses of the Constitution because many felons were impecunious. And further, even if they had money, they had no ability to learn whether they owed any money related to their convictions. Not by phone, by text, email, any form of communication, could they learn from the state, or any other source, whether money was due or not. Thus, they risked felony prosecution if they voted and it was later established there was an unpaid fee.

The state conceded it could not determine whether money was owed. The evidence suggested the state had no mechanism to make any such determination, and a proposed method to gather that information and apply it to the voting process could not be completed before 2026 at the earliest! But the felony provision was not abated by the state's inability to determine whether a fee was due or not.

The District Court ruling striking down the statute was clearly correct, non?

But in an extraordinary procedure, the state went back to the 11th Circuit, and won an en banc order, staying the District Court's injunction! For the non-lawyers in the crowd, this  means that unless some appellate court reverses the stay, despite the District Court's final injunction striking down the statute, it remains in full force and effect, and any felon who votes does so at the risk of being found guilty of a felony!

(Did I mention that six of the twelve judges on the en banc Eleventh Circuit court were appointed by President Trump?)

Outrageous, you say? Let's take an appeal from that stay! Let's go to the Supremes! We'll ask em to reverse that stay!

After all, two of the conservative Justices who knee-capped the Voting Rights Act are no longer on the Court!

Ahh, but Scalia and Kennedy have been replaced by Gorsuch and Kavanaugh. And two days ago, in an unsigned opinion, a majority of the Court refused to lift the stay.  Why? Not because the eleventh circuit was wrong, but because the Supremes do not like to decide election laws close to an election! This is another in a disturbing line of Supreme Court decisions favoring disenfranchisement of Democrat-inclined voters.

Bottom line, the Eleventh Circuit en banc court will hear arguments on August 18. That means the newly-enfranchised felons have already missed the opportunity to vote in the primaries, and the likelihood of their getting registered and voting by November 3 is exceedingly slim.

Let's hear it for our Constitutional Democracy.

A bientot.

.....................................................

As my regular readers know, there is no fixed schedule for these posts. If you want

 a notice of each new posting, just send me an email and I will add you to the notice list.  mlondon34@gmail.com

WHO REALLY WON?

While the headlines gushed over Trump's defeat at the hands of his buds at the Supreme Court, I suggest there is another aspect to the Court's treatment of Trump. In all likelihood, the voters are going to cast ballots on November 3 without seeing the true depths of Donald Trump's perfidy.

For the sake of simplicity, there were two cases before the Court:

The decision in the Congressional subpoena cases will require the House to reframe their subpoenas, and support them with all kinds of data, such as the lack of access to the information by other means, how the documents will help craft legislation, etc. Basically, this puts the House back to square one, and there is no way they can get any sort of subpoena compliance before 2021. 

But the Vance subpoena is a different kettle of fish. It was served on Trump's accountants fourteen months before the 2020 presidential election. Trump's lawyers then sued to strike the subpoena, claiming their client was immune from state criminal processes.

Thirteen months before the 2020 presidential election, District Court Judge Marrero rendered a detailed and powerful 75-page opinion rejecting Trump's legal claim.

Trump appealed, and his lawyer went so far as to insist the president was immune from state criminal proceedings even if he shot somebody on Fifth Avenue in broad daylight.

12 months before the 2020 presidential election,  the Circuit Court rejected the Trump claim and unanimously affirmed the District Court decision. Case over, right?

Not so fast. Even though most lawyers saw zero merit to an appeal, eleven months before the 2020 presidential election, at least four Justices voted to grant Trump the right to appeal to the Supremes. This decision looked to be the death knell to any pre-election indictment, no matter how the Supremes ruled on the merits.

Now, seven months later, less than four months before the 2020 presidential election, the Supremes have said, "Y'know what, the SDNY District Court, and the 2d Circuit Court of Appeals were absolutely correct." But instead of directing compliance with the subpoena, they sent it back to the District Court to see whether Trump had any other objections to the subpoena. This kind of piecemeal litigation is normally frowned upon in the legal system, and courts are inclined to say, "Whatever claim you didn't raise the first time around, is waived." Not this Court, dealing with this president.

The result is the generally accepted view that Vance too will not get the documents before 2021.

But hold on:  Within three days of the Supreme Court decision, District Judge Marrero ordered the parties to appear before him next week, to see what's left for him to decide.. 

I herewith crawl out on the following fantasy-limb:

Doubtless, at the conference on Jul 16, Trump's lawyers will have a laundry list of additional bullshit objections to the subpoena. And doubtless, Judge Marrero will set a tight briefing schedule. I predict he will post a comprehensive decision rejecting Trump's new claims on or about August 7. It will direct compliance within 5-10 days.

Trump's lawyers will seek an emergency stay from the Circuit Court. It will either be denied for lack of merit, or possibly granted on condition the case be set down for prompt oral argument. In the latter event, a Circuit Court decision affirming the Marrero decision will be issued no later than September 15.

Trump will go back to the Supremes, where his request for a further stay will be denied! (Thomas and Alito dissenting.)

That would give Vance just shy of two months to examine the documents, and get a grand jury indictment spelling out the evidence of Trump's criminality in advance of November 3.  While grand jury evidence is secret, indictments are public.

(There are no real surprises here. Trump directly, and via his company, paid hush money to hide his adulterous dalliances, and directed the payments be disguised as legal fees, which presumably were claimed as deductions on the State tax returns filed by Trump and his company, and/or constituted felony falsification of business records. Trump was effectively named as an unindicted conspirator in the SDNY's indictment of Trump lawyer Michael Cohen concerning those payments. Vance has spoken at length with Cohen, and knows exactly what he is looking for. My guess is he has already drafted the indictment.)

Fantasy? Not quite. Very unlikely? For sure. Possible? You betcha.

A bientot.

....................................................

As my regular readers know, there is no fixed schedule for these posts. If you

 want a notice of each new posting, send me an email and I will add you

to the notice list.  mlondon34@gmail.com

A NEW LOW

"Whoever levies war against the United States, or adheres to their enemies, or gives aid and comfort to the enemy" is guilty of treason. The punishment is death, or a prison term of not less than five years.

Is there any doubt that if a US citizen were to agree to pay the Taliban a bounty of $100 for every US soldier they killed, that the bounty payer would be guilty of treason?

If it can be ascertained, i) as our intelligence agencies here and abroad have determined, that Putin has paid bounties for killing US troops, and ii) Trump knew about it but did nothing, is Trump guilty of giving aid and comfort to the enemy, and therefore guilty of treason?

On one hand:

a)  Though Russia is not involved in a "declared war" with the United States, I suggest that if Putin were pursuing a scheme to pay bonuses for the murder of  US servicemen and women, any US jury would find he was thereby waging "war" against the United States, and

b)  Every US trooper on Afghan soil is there because Trump either sent him there or decided to leave him there. I suggest Trump's abject failure to respond to Putin's murder of US troops makes out a clear a case of "giving aid and comfort to the enemy."

So is Trump guilty of treason, and subject to the death penalty?

On the other hand,

Probably not because:

i) There is allegedly some level of uncertainty in the intel report given to the president in his personal daily briefing book. (Experts have opined there is almost always some individual or agency that says the proof is not 100% and there is therefore some room for doubt,)

and,

ii) Criminal liability requires criminal intent. In other words, to convict Trump of giving aid and comfort to the enemy, a prosecutor would have to prove beyond a reasonable doubt that a) Trump knew about the Putin murder scheme and b) Trump wilfully failed to take action in order to give aid and comfort to Putin's forces.

Trump has now embraced both tiers of his defense:

The White House has said the intel report was not clear and certain, though it's statement is deceptive. The "uncertainty" defense would only be pertinent to Trump's decision to take no action if Trump knew of the intel report and concluded it was too uncertain do anything about. But Trump's defense is he has not seen the report so he can hardly plead that he took no action because of any doubts in the report.

Indeed, the White House lie factory has played fast and loose with the English language, and tried to mask Trump's incompetence.

Notice, please, that the president doesn't address this matter himself. He is too busy talking about the "thugs" and "Fascists" who peacefully demonstrate bearing signs that say Black Lives Matter. Instead, it's the "White House" that issues statements in Trump's defense. Again, pay close attention to what they do not say. 

At first, the White House press office issued a statement denying that the president was personally made aware of the intel report of Russian bounties for murdering US troops. If you think that means no one reported this personally to Trump,  then you have been deceived. It soon became clear that the Russian bounty-for-murder scheme was reported in the Daily Presidential Briefing Book handed personally to Trump.

Once that cat was out of the bag, the White House moved to the next level of deception, and issued a statement that said, "Well, no one raised the issue 'verbally' with the President."  (I need to point out the pain that statement caused English teachers and lawyers, both of which groups know that "verbally" means using words, as opposed to other means of communication like hand signals, head nods, shoulder shrugs, etc.  So the White House statement was literally false, because the report given to Trump was indeed verbal.

But I concede that "verbal" is now frequently misused to mean "oral," so the best that can be said of the Trump position is,

 "Yeah, the intelligence community thinks it is important that I be made aware of stuff that relates to our national defense, and they think it so important that they write it down and give me a copy of their report every day. But I don't read the report, and nobody reads it to me."

Conclusion:

Whether the president read the report or not, his conduct is despicable. The failure of this administration to take action on this intel report is beyond the pale. Our intelligence agencies report to the Commander-in-Chief that a foreign power is paying someone to murder US soldiers and the Commander-in-Chief doesn't read the report because he can not or does not like to read?  

And his staff is so browbeaten that everybody knows to avoid telling Trump stuff they fear he does not like to hear?

And the result is NOTHING HAS BEEN DONE ABOUT THE INTELLIGENCE REPORT THAT PUTIN HAS BEEN PAYING BOUNTIES FOR THE MURDER OF US TROOPS.

How does this man live with himself knowing he may have been a party to the murder of US troops?

"UNFIT" TO BE PRESIDENT? IS THAT A REAL QUESTION?

AND WHAT OF THE PRESIDENT'S SUPPORTERS, ESPECIALLY THOSE IN THE HOUSE AND SENATE, WHO OWE A SUPREME DUTY TO THOSE THEY HAVE SENT INTO HARM'S WAY IN THE NATIONAL DEFENSE?

Where is the outrage?

Where is the bipartisan demand that Trump resign?

Happy Independence Day.

A bientot.

...............................................

As my regular readers know, there is no fixed schedule for these posts. If you want a notice

 of each new posting, send me an email and I will add you to the notice list. 

 mlondon34@gmail.com