The Nation published a story yesterday by Ari Berman with the headline “Wisconsin’s Voter-ID Law Suppressed 200,000 Votes in 2016 (Trump Won by 22,478).” Here’s a definitive statement that 200,000 votes were in fact suppressed by Wisconsin’s Voter-ID law. And a blunt inference that, but for this suppression, Trump would not have won in Wisconsin. The problem with Mr. Berman’s headline is simple. It is not supported by the facts. It is yet another example of a media outlet misleading its readers. And an example of a failure of a published reporter to demand of himself accuracy in his reporting. Shame, shame, shame. Continue reading “Wisconsin’s Voter-ID Law Suppressed Votes? – A Misleading Account”
Category: Opinions
Comey Deserved to Be Fired, But Trump’s Judgment Was Terrible
The firing of FBI Director James Comey was long overdue. Comey deserved to be fired. But President Trump was wrong to do it now. Rants to the contrary notwithstanding, this is not the Saturday Night Massacre. Not by a long shot. But President Trump’s decision is yet the latest example of poor judgment – very poor judgment. Poor presidential judgment jeopardizes a President’s ability to effectively lead. The nation becomes weaker in the eyes of friends and foe alike. The subsequent need to show decisiveness and leadership grows, as is the risk of making follow-on poor judgments. This is the underlying risk of President Trump’s decision, and it cannot be understated. Continue reading “Comey Deserved to Be Fired, But Trump’s Judgment Was Terrible”
Americans’ Moral Obligation to Pay Taxes – But It’s Limited
Are Americans proud to pay their taxes? Vanessa Williamson of the Brookings Institute thinks so, after studying survey data and conducting interviews. She finds that Americans view paying taxes as a civic and moral responsibility, and the price of citizenship. She believes that “the idea that ‘Americans hate taxes’ has become a truism without the benefit of being true.” But this rather surface conclusion misses the point. There is a real distinction between a moral obligation to pay taxes and a legal obligation. Continue reading “Americans’ Moral Obligation to Pay Taxes – But It’s Limited”
Deaf Ears to Maryland Black Caucus on Marijuana – And Rightly So
Michele Obama once said “when they go low we go high.” But not the Maryland Black Caucus (MBC). For them, “when they go low we get high [just kidding] – it is racism!” In a pathetic example of playing the race card, the Maryland Black Caucus screamed foul when there were no awards of Maryland’s 15 marijuana grower licenses to African-Americans. But it all falls on deaf ears in a Maryland legislature lambasted by the MBC with overtures of claimed corruption. And outward – and ill-founded – claims of racism. Continue reading “Deaf Ears to Maryland Black Caucus on Marijuana – And Rightly So”
Feckless American Leadership – The Lessons From the Syrian Chemical Weapon Catastrophe
So this is what happens when the United States enters into worthless agreements sponsored by a feckless American President. This is what occurs after that American President drew a line in the sand that his enemy chose to cross – with no consequence. We face this outcome when that American President desperately relies on the Russian Federation – yes, Russia – to bail him out. This is the lesson for our future leaders when a President of the United States, with forethought, chose to rely on the words of Vladimir Putin, of all people, to ensure that the monstrous regime of Syrian dictator Bashar al-Assad would no longer chemically murder his fellow Syrians. An American President who foolishly grabbed the thin reed of a September, 2013 “Framework” agreement promising the removal and destruction of chemical weapons in Syria, all in the name of saving his own political face. Feckless American leadership.
Senator McCaskill Succumbs – Like Her Colleagues, She Is Unable to Elevate Principle Above Politics
We’ve ordered one fresh copy of “Profiles in Courage” for U.S. Senator Claire McCaskill. Her political analysis regarding the Gorsuch confirmation process is spot-on. She understands the larger war within which the Gorsuch nomination is a small (yes, small) battle. No doubt Senator McCaskill is capable of understanding and articulating the key principal from the Democrats’ perspective. But in the weakest tradition of partisanship, she sacrificed the major principles for the minor one. Senator McCaskill succumbs to partisanship.
She is a willing co-conspirator in the Democrats’ theft of the advise and consent responsibility from a long history of bipartisan respect. She, and most Senate Democrats, act as if political warfare is and should be the norm. We won’t review the history of Supreme Court nominations, other than to note that this is the first (and only) time in American history that a nominee is the victim of a solely partisan filibuster. Shame, shame, shame.
Death of the Filibuster – Brought to You By Our Principled U.S. Senators
The death of the filibuster is at hand, at least for Supreme Court nominations. But slaying of the filibuster dragon requires a whole bunch of U.S. Senators to raise their hands on the Senate floor and proclaim for all to hear, “I am a hypocrite.” You’ll see why below.
This hypocrites hall of fame list includes each and every Senator, as it turns out, who has said they will filibuster the Gorsuch nomination. But before we put our Scarlet Letter around the necks of each of those likely luminaries, let’s pay homage to the scant few who stand for some principle. Any principle. To the few who understand that the business of the United States requires accommodation, compromise, and respect in order to move forward the business of the people, if only in small steps. So who populates that list?
Hat’s Off List
First and foremost, a large tip of the hat to West Virginia Senator Joe Manchin. Sure, he’s up for re-election in a State President Trump won by over 40 percentage points. And yes President Trump made his big political move to support coal the other day. Manchin may have his own personal political reasons for refusing to filibuster – can you say, political survival? But supporting a vote on the nominee is still supporting a vote, so a large tip of the old visor to Senator Manchin.
Second, a small tip of the hat to the Senate’s most senior Democrat, Vermont’s Pat Leahy, who said he’s “not inclined to filibuster” the nomination. But that “inclination” was not a final decision, even for the allegedly-principled Leahy: “I am never inclined to filibuster a [Supreme Court nominee]. But I need to see how Judge Gorsuch answers my written Qs, under oath, before deciding.” Leahy is the former Chairman of the Judiciary Committee. Having presided over two Supreme Court nominations by President Obama, he should know better.
Death of the Filibuster – The Hypocrites List
Senate Minority Leader Charles Schumer
Other Nationally Prominent Senators
Bernie Sanders, Vermont, and former Presidential candidate
Elizabeth Warren, Massachusetts
Dick Durbin, Illinois, and Senate Minority Whip
Tim Kaine, Virginia
Cory Booker, New Jersey, Talked-About 2020 Presidential Candidate
Others
Death of the Filibuster – The Principle
So we’re headed to the death of the filibuster. Is that a good thing or a bad thing? Some claim its death gives us more democracy. Others fear it just grants a small majority further, and enduring, control over the lives of the minority. A fair debate.
But it’s a list of principled men and women, yes indeed, who walk the Senate’s hallowed halls. They bring us the death of the filibuster. Not because it is right or wrong to do so. But because they are pure partisans, through and through.
A Stronger NATO – Welcome to Montenegro! Russia Beware
A stronger NATO is what we need. Especially the native Europeans, what with President Trump’s threats and innuendos suggesting reduced U.S. support. More tanks, bombers, fighters, armies – anything to push back against the hegemonic Putin. And more vital military installations – naval bases, landing strips, army stations. Yes, yes we must push back against Russian aggression. They annexed Crimea; they invaded the Ukraine and Georgia. My God, Montenegro must be next. Now’s the time to rally to their aid, before it’s too late. Plus, we’ll get their formidable military. This could be a real NATO coup.
Who’s to argue? Montenegro is certainly the most beautiful country in Europe. The glacier-formed Durmitor National Park is home to the spectacular Tara Canyon, the world’s second largest. The stunning Tara River runs through the canyon for over 30 miles.
Nothing rivals the spectacular Bay of Kotor on the Adriatic Sea. It runs 15 miles or so from the sea to the city of Kotor. Nestled on a cape separating the bay from the gulf of Risan lies the small town of Perast. Two stunning chapels rest on the two islets just past Perast.
And then there’s Montenegro’s full military complement. They’ve got almost 2,000 active duty military. But imagine if they had a draft! Sure, most of their stuff came from the old Serbia-Montenegro combo before Montenegro’s emancipation in 2006, but the stuff’s only ten years old or so.
What’s more, there’s that navy. Look, they’ve got 67 patrol boats. And the Bar Naval Base – my God, the Bar Naval Base! Sure, we’ve had the American navy. And the British and French navies. But just think what NATO’s naval complement will look like now. The heights that it can scale. No more worries for our friends on the Adriatic. The Russians will no longer be able to base their Italian night-time landing from their long-dreamed-for Montenegrin base. Lay that one to rest!
No wonder the Kremlin objects to Montenegro’s NATO inclusion. They should fear a stronger NATO. The West is so far-sighted. Deterrence is the goal, and a NATO with Montenegro is certainly stronger than one without. No way the Russians will dare further European incursions. Sure, an over-land Montenegrin attack would force them through the Ukraine, Romania and Serbia first. Who could blame them, with the prize that lurks. But not anymore!
At least not if the Montenegrins actually decide to join. Their government has pushed hard to join the club for seven years now. But their people are wise, and might not want to belong to any club that will accept them as a member. Polls show only 39% or so really want to join the club. Too much democracy might be a bad thing, so they’ll probably not be any Montenegro vote on this one. We need a stronger NATO.
So Russia beware! If President Trumpenstein approves, and the Spanish go along too, the full military might of 28 nations will be there to staunch your dream of a Montenegro coup. Viva la Montenegro!
Nunes and Schiff Deserve Each Other – Are There any Grown-Ups in the House?
House Intelligence Chairman Devin Nunes was irresponsible and wrong. Ranking House Intelligence Committee Democrat Adam Schiff was irresponsible and wrong. The House Intelligence Committee investigation into possible Russian interference in the presidential election has become a farce. Loyalty to the Committee has been discarded. Dedication to truth-finding has been jettisoned. Congressmen Nunes and Schiff deserve each other. Will the grown-ups ever enter the room?
Nunes’ Duty – Kiss It Goodbye
No investigation can succeed where “partial disclosures” are made while the investigation is ongoing. Congressman Schiff is correct. Chairman Nunes owed an absolute duty of loyalty to his committee’s investigation and to preserving the sanctity of that investigation. He was foolish in foregoing the advice of his fellow Republican committee members who urged him to consult with Democrats before going public. An exercise of terrible judgment.
Shame on Nunes for running to his party leader, while ignoring his committee mates, with “breaking news” of conversations legally obtained possibly involving the President and/or his certain of his associates. We thought Nunes worked for the American people, not CNN or Fox News. No, Congressman Nunes, you did not “have a duty” to tell the President that intelligence reports with his name in them exist. You have an investigation to conduct. And you are its leader.
Even if the Congressman had discovered that President Obama had ordered a wiretap of President Trump, Nunes had an absolute obligation to share that information with his committee members, including the ranking Democrat, before he scrambled off to meet with the President. Surely the matter of paramount importance in that instance is the potential criminal conduct of Mr. Obama. Mr. Trump’s need-to-know of transgressions is clearly secondary. Mr. Nunes, it appears, has no sense of priorities or propriety.
Schiff’s Duty – Kiss It Goodbye, Too
Enter Congressman Schiff. He is equally guilty of violating the sanctity of an on-going intelligence investigation. Mr. Schiff succumbed to political theater and became an active participant. He acted with impropriety and irresponsibly. Mr. Schiff apparently concluded that because the Republican Committee chair acted foolishly and recklessly, he must do the same. Nunes and Schiff, it turns out, wear the same jacket.
So Congressman Schiff immediately held his own press conference. Oh sure, he chided Nunes for his lack of professionalism:
The Chairman will need to decide whether he is the chairman of an independent investigation into conduct . . . or he is going to act as a surrogate of the White House, because he cannot do both. Unfortunately I think the actions of today throw great doubt in the ability of both the Chairman and the Committee to conduct the investigation the way it ought to be conducted.
Well said, Congressman. But talk is cheap, and we suppose none of those fine words apply to you. Having thrown down the gauntlet to his compadre Mr. Nunes, Mr. Schiff raced over to Meet the Press to disclose this:
I don’t think it was deliberate on [former Director of National Intelligence James Clapper’s] part, but all I can tell you is reviewing the evidence that I have, I don’t think you can conclude that [there was no evidence of collusion between the Trump team and Russia] at all, far from it.
When asked whether there was circumstantial evidence suggesting collusion, Mr. Schiff said:
Actually, no . . . I can tell you that the case is more than that. And I can’t go into the particulars, but there is more than circumstantial evidence now . . . I will say that there is evidence that is not circumstantial, and is very much worthy of investigation.
Yes, Mr. Schiff, we agree. It is fine for you to make disclosures. It’s admirable for you to play the political game. Please tell us, again and again when you can score a few points, your opinion regarding the quality of evidence received during an on-going investigation. Take it upon yourself, as well, to speak for the Committee without consulting them. Who needs an internal Committee debate or a report when you can just fill us in as you see fit. You are free to disclose that there is evidence that is more than “circumstantial.” Perhaps you’ll let us know the source of that evidence. Or, even, if it turns out to be unreliable – we assume you’ll put on those track shoes and race over to Meet the Press then, too, right?
Nunes and Schiff – A Perfect Match
Yup, Mr. Schiff, we agree. We think your actions also “throw great doubt in the ability of . . . the Committee to conduct the investigation the way it ought to be conducted.” Bet you didn’t confer with your Republican committee mates before you made those comments to Meet the Press.
You are right about Chairman Nunes. But a good sauce for the goose is a good sauce for the gander, too.
Congressmen Nunes and Schiff – shame on you both for your conduct. You deserve each other.
Florida Prosecutor Seizes Legislative Powers – Unilateral Decision to Destroy the Rule of Law
The Florida Constitution provides that “[t]he legislative power of the state shall be vested in a legislature of the State of Florida.” So, does a Florida state attorney have the power to change that law? Florida prosecutor Aramis Ayala apparently thinks so. She decided that she will never seek the death penalty in any capital murder case in Osceoloa and Orange counties, where she serves.
This is not a debate about the death penalty. We assume Ms. Ayala has sincere reasons why the death penalty should never be imposed. She may find the death penalty repugnant for a variety of sound reasons. And she is certainly entitled to a forum to express her beliefs and to debate them.
Ms. Ayala holds only a public prosecutorial office in Florida. She serves in the executive branch of government. She has specific duties and responsibilities as a consequence of her office. Ms. Ayala has taken an oath as a Florida prosecutor.
But the question is simply this: does the state attorney in Osceola and Orange counties have the right or power to substitute her honest beliefs for those of the Florida legislature? Can she unilaterally change the law? Or is lawmaking the sole province of the Florida legislature? Florida Governor Scott removed her from the case we describe below. And rightly so.
The Allegations in the Murder of Police Lieutenant Debra Clayton
In December, 2016 Markeith Loyd allegedly murdered Sade Dixon, his pregnant girlfriend, in front of her family members. On January 9, 2017, Orlando Police Lieutenant Debra Clayton stopped at a Wal-Mart to buy a few items while on duty. On her way back to her patrol car another shopper approached her and told her that she had seen person matching Loyd’s description at a check-out counter. Lieutenant Clayton called in the sighting and identified that person as Loyd. While Clayton was on the radio with the dispatcher, three gunshots rang out. The call then went dead.
A surveillance camera captured the entire scene. Lieutenant Clayton approached Loyd outside the Wal-Mart. Clayton pulled out her weapon. Loyd ran and she chased. Loyd, wearing a bulletproof vest, circled around her while pulling a handgun from his waistband. He took cover behind a concrete pillar. Clayton drew her gun and headed toward the parking lot. But she was unable to reach cover before Loyd fired three shots. One shot hit her in the hip and she fell to the ground. She rolled onto her back. Loyd, instead of leaving the scene, then moved to Clayton, stood over her and fired five more shots as Clayton returned fire. One of Loyd’s shots fatally struck Clayton in the neck.
A second police officer followed Loyd as he fled. The officer tracked Loyd to an apartment complex. There, Loyd fired at the second officer, striking his vehicle but missing the officer. Loyd escaped, and was captured days later.
As described by Orlando Police Chief John Mina, “I have seen the video of Markeith Loyd executing Lt. Debra Clayton while she lay defenseless on the ground. She was given no chance to live.”
The Florida Criminal Statutes
In Florida, an individual who resists a police officer by killing the officer is guilty of murder.[note]Florida Statues Title XLVI, Crimes Section 782.04[/note] A person convicted of such a capital felony “shall be punished by death. . .”[note]Florida Statutes Title XLVI, Crimes Section 775.082.[/note]
These statutes are straightforward. They are unambiguous. The video in Lt. Clayton’s murder (which we have not seen) apparently depicts the brutal, execution-style murder of a police officer. Loyd fled, took cover and fired at Clayton. After wounding her, he approached her while she lay on the ground, firing at he five more times until killing her. It is not a stretch to suggest that these facts support a request to a jury for imposition of the death penalty.
Prosecutorial Discretion or Abrogation of Duty? A Florida Prosecutor Run Amok
Ms. Ayala decided that she would not pursue the death penalty in the murder of Lieutenant Clayton. Whether we agree with that decision or not within the confines of the case, that’s certainly within her prosecutorial discretion.
But Ms. Ayala went well beyond the specific facts of the case of Markeith Loyd. The Florida prosecutor also announced that she would not pursue the death penalty in any other case. “I have determined that [using my prosecutorial discretion in death penalty cases] . . . is not in the best interests of this community or the best interest of justice.” As a consequence, she indicated that she intended to file a notice to withdraw the intent to seek the death penalty in all other cases within her jurisdiction that have not yet gone to trial.
Ms. Ayala believes that capital punishment is a failed policy. She believes application of the death penalty is inconsistent. She concluded that the protracted length of the appeals process deprives the victim’s families of closure. “It’s become clear that pursuing death-penalty cases is not the best interest of victims’ families or justice.”
Ms. Ayala’s policy conclusion is that “Florida’s death penalty has been the cause of considerable legal chaos, uncertainty and turmoil.” And it is true that aspects of Florida’s death penalty law, and its application, have created legal issues, even to the point of involving the U.S. Supreme Court. However, any changes to the Florida law are the sole prerogative of the legislature, subject to review by the courts.
A Florida Prosecutor Making Policy Decisions – Invading the Province of the Legislature
We listened to Ms. Ayala’s entire oral explanation behind her decision. You can hear it here. She has made wholesale policy judgments. She has determined, after thorough reflection, to eliminate the Florida death penalty law in her counties of jurisdiction.
The fact that Ms. Ayala made a detailed policy analysis to reach her conclusion of widespread application makes clear that she is not entitled to make a detailed policy analysis in the first instance. Policy decisions are the sole responsibility of the representatives of the people of the State of Florida. The Florida Constitution granted that power to Florida’s legislature. Not to lawyers employed merely to enforce Florida’s laws. Indeed,
the primary role of the State Attorney is to represent the State of Florida in the criminal court system. The State Attorney reviews criminal investigations conducted by law enforcement, decides if criminal charges are necessary and then presents the cases in criminal court.
Florida’s laws are detailed and specific regarding the powers of a state attorney.[note] See Title V, Judicial Branch, Chapter 27, Part II, State Attorneys.[/note] The legislature did not grant any policy-making powers to a state attorney.
Under Florida law the power to create a death penalty law resides with the legislature. And the power to remove that law rests with the legislature.
Ms. Ayala had a simple choice as a Florida prosecutor. Enforce the laws of the State of Florida. If her conscience prevents it, then resign. But she chose to arrogate powers that belong to the people’s representatives. Florida’s governor was right to remove her from the Loyd case. If she fails to pursue the death penalty in other appropriate cases, she should be replaced.