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Doug Muder is a former mathematician who now writes about politics and religion. He is a frequent contributor to UU World.

Trump is Guilty

June 3, 2024 – 8:53 am

Twelve ordinary Americans reviewed documents, listened to witnesses, and concluded beyond a reasonable doubt that Trump is guilty of 34 felonies. His defenders almost entirely avoid disputing the facts of the case, but argue instead that he should get away with those crimes.

Among the four indictments of Donald Trump, the Manhattan case brought by District Attorney Alan Bragg was supposed to be the weakest. [1] Up to this point, though, the three “stronger” indictments have all been sidelined by the partisan Republican majority on the Supreme Court, accusations against the prosecutor in Georgia, and the tactics of a trial judge Trump appointed himself, despite her lack of qualifications. None of the hold-ups in these trials points to any weakness in the evidence against him.

An innocent man running for office should want to clear his name before the election, but Trump has used every device at hand to delay his trials until after the election (when, if he wins, he will gain new powers to obstruct justice). But Trump lacked any leverage for delaying the Manhattan trial: Because it’s a state trial, the Supreme Court had no grounds to stop it; because New York is a blue state, no state officials got in the way; and the judge overseeing the case was not indebted to Trump.

So the trial was held. It was a fair trial. Trump had been indicted not by President Biden or the Department of Justice, but by a grand jury of New York citizens. He exercised a defendant’s usual right to participate in selecting the trial jury. His lawyers were allowed to cross-examine the witnesses against him, to introduce relevant evidence in his defense, to file motions, to object to prosecution questions and witness statements, to call witnesses of their own, and to give a summation to the jury. The judge ruled on those motions and objections, sometimes favoring the prosecution and sometimes favoring the defense. Trump himself had the right to testify, but chose not to. The jury was instructed that they should acquit if they found any reasonable doubt about his guilt.

In short, Trump received every consideration the American justice system grants to defendants. In certain ways, he was treated much better than most other criminal defendants: Just about anyone else would have been jailed after 11 violations of the judge’s orders, but Trump was not.

Outside the courtroom, the world frequently bent under the gravity of his political power. The chairs of three House committee tried to intimidate his prosecutor (despite Congress having no oversight role in regard to state prosecutors), and at least one is still trying. Members of Congress, all the way up to the Speaker himself, have come to New York to repeat Trump’s accusations, as a way of circumventing the judge’s gag order.

The jury found Trump guilty. This means that (after considering all the evidence) they were convinced beyond a reasonable doubt that the following facts are true: Trump had sex with a porn star, had his fixer buy her silence to keep voters in the 2016 election from finding out, reimbursed his fixer, and cooked the books of the Trump Organization to hide those payments from election regulators.

Those are no longer mere accusations or “alleged” facts. They have been established in a court of law.

If nothing else results from this conviction (see the discussion of jail time below), it should call attention to the seriousness of the shenanigans delaying the other trials. [2] The charges Trump faces are quite real, and the evidence against him is convincing. In each case, the public interest demands a trial.

The response. Rational people might begin to have second thoughts about supporting a candidate convicted of felonies, but that is not how the Republican Party works these days. With very rare exceptions, Republicans doubled down on their Trump support, choosing instead to attack the American justice system.

[T]he entire American political and legal system is controlled by Biden and Democrats: a banana republic, not a democracy worthy of its name. A range of leading Republicans — from House Majority Steve Scalise to Texas Gov. Greg Abbott to rising Senate stars Josh Hawley and J.D. Vance — have all said basically the same thing.

At this point, you might be wondering: Is any of this surprising? Trump always claims he’s the victim of a conspiracy, and Republicans always end up backing whatever Trump says.

But that’s precisely the problem. The current Republican party is so hostile to the foundations of the American political system that they can be counted on to attack the possibility of a fair Trump trial. Either Trump should be able to do whatever he wants with no accountability, or it’s proof that the entire edifice of American law and politics is rotten.

Looking forward, Speaker Johnson called on the Supreme Court to intervene, opining that justices that he “knows personally” were upset by the trial’s outcome, and would want to “set this straight”.

What exactly needs to be “set straight” is almost never spelled out. I have heard and read a lot of outrage from the MAGA cult, but few of them care to argue the facts of the case. They just think Trump should get away with it. They attack the judge, the jury, the prosecutor, and the Biden administration (which played no apparent role in this trial). They argue that Trump should never have been prosecuted (which is a strange thing to argue after the jury returns a guilty verdict [3]), or that an appeals court should overturn the verdict on some technical grounds.

But they don’t argue that Trump didn’t do exactly what the indictment says he did.

The most troubling response to the verdict are the threats of violence. So far, the jurors have remained anonymous, but Trump supporters online are doing their best to deduce who the jurors might have been. Both Judge Merchan and District Attorney Alan Bragg will have to watch their backs for years to come.

Of course, Trump could make a magnanimous public statement urging his followers not to harm the jurors and other people involved in the case. But don’t be silly. MAGA is a violent movement, and Trump likes it that way.

Will he go to jail? No time soon, and almost certainly not before the election (unless Judge Merchan gives him a few days of jail time for contempt of court).

Trump will be sentenced on July 11, and all options are open. Felony falsification of business records is a Class E felony in New York, the lowest category. The maximum sentence is four years. Theoretically, he could get four years for each of the 34 convictions, but since the offenses are so similar it seems likely he would serve the sentences concurrently.

Experts disagree about whether jail is a likely sentence at all. The majority of first-time Class E felons aren’t sentenced to jail, but some are. In his favor is that this is his first conviction and he is 77 years old. Working against him is the seriousness of the conspiracy (it may have decided the 2016 election), his complete lack of remorse, his repeated violations of the judge’s orders, his threats of revenge, and his history of civil fraud judgments. It’s not clear to me whether the judge can take into account his other felony indictments.

I can only laugh when Trump defenders say that he is unlikely to re-offend. Trump will almost certainly re-offend if he is not in jail. And Jay Kuo makes a good point:

If you think famous, wealthy people who are first-time offenders cannot be sentenced to prison for covering up a crime, Martha Stewart would like a word.

I’m betting that some form of incarceration will be part of the sentence, maybe tailored for his convenience, like weekends in jail or house arrest. Almost as humiliating would be community service, which in New York typically means wearing an orange jumpsuit and picking up litter in a park or near a highway.

Whatever Trump’s sentence, it will almost certainly be suspended pending his appeal, which probably won’t be decided until after the election. If he wins the election, he probably can’t be imprisoned until he leaves office, which is yet another motive for him never to leave office (which I already don’t expect him to do voluntarily).

If he loses the election, on the other hand, his other trials will eventually start, and I predict he will be convicted of some other felony before this felony can be wiped off his record. After all, those are the “stronger” cases.

People too young to remember President Nixon’s Watergate scandal might not recognize the cartoon at the top of this post, but it was iconic in its day. It came from Gary Trudeau’s Doonesbury comic, which ran daily in most newspapers. The full strip is here, along with some commentary. In 2017, Trudeau updated the comic in response to the Trump/Russia scandal (which remains unresolved).

Trudeau’s latest comment on Trump is here.

[1] However, I did tell you back in April that “The Manhattan case against Trump is stronger than I expected“.

From a evidentiary point of view, the Mar-a-Lago documents indictment is probably the strongest. After his term ended, Trump had no right to possess classified documents. When the government asked for him to return the documents he had taken, he said he didn’t have them. Then the FBI searched Mar-a-Lago and found them. There’s no innocent explanation for that set of facts.

That case also involves various things Trump did to try to obstruct the investigation, but the core of the charge is the simple description in the previous paragraph. A jury will have no trouble understanding it, if the Trump-appointed judge ever allows a trial to happen.

[2] It should particularly call attention to the delaying tactics of this corrupt Supreme Court. Both Clarence Thomas and Sam Alito are compromised, and according to the rules governing any other federal court, should recuse themselves from any January 6 related cases. But they have not.

The public especially deserves to know what role these compromised judges have played in the Court’s decision to hear Trump’s absurd immunity claim, which has been convincingly rejected at all lower levels. If their votes were decisive in the Court’s decision to take the case (thereby delaying Trump’s federal trials by many months, probably past the election) that’s a grave and highly consequential injustice.

[3] Usually, the sign that a case shouldn’t have been brought to trial is that the jury doesn’t find the prosecution’s case convincing.

For example, when Bill Barr was Trump’s attorney general, he appointed John Durham as special prosecutor, and charged him with proving Trump’s conspiracy theory about the nefarious origins of the Mueller investigation. Trump claimed Durham would uncover “the crime of the century” and “treason at the highest level”.

Two jury trials came out of this effort, both fairly minor indictments of fairly minor figures: Michael Sussman and Igor Danchenko were charged with lying to the FBI. Both were unanimously acquitted by juries that only needed a day or two to reach agreement. The supposed authors of the conspiracy — Hillary Clinton, Barack Obama, or somebody (I could never figure it out exactly) — were never charged with anything.

That’s what it looks like when a case is undertaken for purely political purposes by a weaponized Justice Department and charges should never have been brought.

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The Monday Morning Teaser

June 3, 2024 – 8:20 am

The main story this week is obvious: “Trump is Guilty”. That post will be out shortly. The gist: In all the yelling about Trump’s conviction, nobody is really disputing the essence of the case: He banged a porn star, had his fixer pay her off before the voters could find out, and then cooked the books to hide the payment from election monitors. Those aren’t just “alleged” any more; they’re established facts. They’ll continue to be established facts even if some legal technicality keeps him out of prison.

The weekly summary will cover Justice Alito’s predictable refusal to recuse himself from Trump cases, where he is anything but impartial. Mexico elected its first female and first Jewish president. A New Hampshire law similar to Florida’s Don’t-Say-Gay has been blocked as unconstitutionally vague. Rick Perlstein and Cory Doctorow wrote articles you should read. And the Negro Leagues are finally recognized in the official baseball statistics.

That should be out around noon.

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Venues

May 27, 2024 – 12:23 pm

Trump’s refusal to take the stand encapsulates the MAGA approach to politics. Since the 2020 presidential election, he and his surrogates have made repeated accusations and statements about how the system is rigged against them and alleged there is evidence that proves them right. Crucially, they make those arguments only in front of television cameras or on podcasts and radio. They refuse to make them under oath in a court of law, where there are penalties for lying. 

– Heather Cox Richardson

This week’s featured post is “Alito’s Flags Aren’t the Worst of It“, concerning the Supreme Court’s ruling (with Alito writing the majority opinion) in a racial gerrymanding case.

This week everybody was talking about Alito’s flags

It all started last week, when the NYT revealed that an upside-down American flag flew over Supreme Court Justice Samuel Alito’s home in Virginia for several days between the January 6 insurrection and Biden’s inauguration. An upside-down flag is a traditional distress symbol, and was used by the “stop the steal” movement that believed Biden’s 2020 win was illegitimate. Alito blamed the flag on his wife, whom he said was responding to some kind of dispute with the neighbors. (He provided no further details, and also said that the dog ate his homework.)

Then Wednesday the NYT reported that a second insurrectionist flag, the Appeal To Heaven flag sometimes associated with Christian nationalism, flew over the Alitos’ vacation home on the Jersey shore in July, August, and September of 2023. (It’s not clear whether it flew continuously or sporadically.) This flag was also carried by January 6 insurrectionists.

Since its creation during the American Revolution, the flag has carried a message of defiance: The phrase “appeal to heaven” comes from the 17th-century philosopher John Locke, who wrote of a responsibility to rebel, even use violence, to overthrow unjust rule. “It’s a paraphrase for trial by arms,” Anthony Grafton, a historian at Princeton University, said in an interview. “The main point is that there’s no appeal, there’s no one else you can ask for help or a judgment.”

According to the Supreme Court’s own Code of Conduct, which it released last November to demonstrate it was not completely lawless following revelations of Clarence Thomas’ corruption,

A Justice should disqualify himself or herself in a proceeding in which the Justice’s impartiality might reasonably be questioned, that is, where an unbiased and reasonable person who is aware of all relevant circumstances would doubt that the Justice could fairly discharge his or her duties.

The Court is currently hearing a number of cases related to January 6, and has already ruled that states cannot remove Trump from their ballots on 14th-Amendment participating-in-an-insurrection grounds. Alito’s impartiality “might reasonably be questioned” by “an unbiased and reasonable person” in all these cases. But of course he will not recuse himself and Chief Justice Roberts will not demand that he do so, because in practice the Court has no code of conduct and does not recognize any judicial ethics.

Likewise Congress will not solve the problem. The filibuster will prevent the Senate from passing any binding code for the Court, and Republicans would never participate in an impeachment. I agree with Joyce Vance, that the only conceivably effective response needs to come from the voters:

This one, as I’ve written, is up to us, and to investing in the political cycle. Don’t despair, vote! … If you want a Congress that will pass ethics reform for the Supreme Court, as difficult of an endeavor as it may be to craft rules that will pass constitutional muster, then vote for people who will go on record as supporting it.

It’s unlikely we’ll get a majority large enough to impeach Alito or Thomas. But if it becomes clear that their in-your-face defiance of all constraints is a drag on the Republican Party, partisan interests may start to rein them in.

and international courts v Israel

This week, international courts made two moves against Israel. Last Monday International Criminal Court Prosecutor Karim Kahn sought arrest warrants for leaders of both Hamas and Israel.

Hamas leader Yahya Sinwar and two others are accused of various crimes associated with October 7, including the killings of several hundred Israeli civilians, taking hostages, rape, and so on.

Israeli Prime Minister Benjamin Netanyahu and Minister of Defense Yoav Gallant are accused of starvation of civilians as a method of warfare, intentionally directing attacks against a civilian population, and other related offenses.

Judges of the ICC have not yet approved the warrants. If they are approved, they may not have much effect beyond their influence on international opinion. Neither set of leaders is likely to surrender itself, and the ICC commands no military force able to bring them in.

President Biden denounced the prosecutor’s move:

The ICC prosecutor’s application for arrest warrants against Israeli leaders is outrageous. And let me be clear: whatever this prosecutor might imply, there is no equivalence — none — between Israel and Hamas. We will always stand with Israel against threats to its security.

Friday, the International Court of Justice

ordered Israel to “[i]mmediately halt its military offensive, and any other action in the Rafah Governorate, which may inflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction in whole or in part.”

The Court also ordered Israel to open the Rafah crossing, to allow United Nations fact-finders to enter Gaza, and to report to the Court within one month regarding its compliance with the Court’s orders. The Court also reaffirmed its prior orders and reiterated its call for the immediate and unconditional release of all hostages held by Hamas and other armed groups.

Again, the international court has little ability to enforce this order, but it may have some effect on popular opinion around the world.

If you’re like me, you may not have previously realized the the ICC and the ICJ are separate entities. Both are located in The Hague. The difference seems to be that the ICC prosecutes individuals, while the ICJ adjudicates disputes among nations.

Another diplomatic blow to Israel: Spain, Ireland, and Norway will formally recognize a Palestinian state tomorrow.

and the Trump trials

Both sides have now rested their cases. The judge declared a break so that summations and jury instructions could occur without interruption by the holiday weekend. Summations begin tomorrow, and the jury should be ready to deliberate later this week.

What they will do is anyone’s guess. An outright acquittal seems unlikely, given the strength of the prosecution’s case. But to prevent a conviction the defense only needs to convince one juror. That juror doesn’t even have to believe Trump is innocent, just that the case against him hasn’t been proved beyond reasonable doubt.

To no one’s surprise, Trump himself did not testify, despite saying many times that he would.

He would have been better off not offering a defense at all. It would have looked like a power move: The government hasn’t proved its case, so we have nothing to answer.

Instead, the defense called one technical witness and then Robert Costello, who was a disaster. Not only was Costello disrespectful of Judge Merchan, leading the judge to clear the courtroom to tell Costello how close he was to a contempt of court ruling, but his presence allowed the prosecution to introduce emails Costello wrote that captured just how mob-like TrumpWorld is.

Emails between Costello and Cohen were read aloud to leave the indelible memory in the minds of the jurors that Trump and Giuliani were conspiring with Costello to make sure Cohen didn’t cooperate with the government. There is even an email from Costello to Cohen saying, “Rudy said this communication channel must be maintained…sleep well tonight, you have friends in high places,” and one from Costello to his law partner saying, “Our issue is to get Cohen on the right page without giving the appearance that we are following instructions from Giuliani or the President,” (which they clearly were.) When Cohen didn’t sign on with him right away he told his law partner Cohen was “slow-playing us and the President…What should I say to this asshole? He’s playing with the most powerful man on the planet.” Didn’t he know who he was messing with?

Costello was supposed to undermine Michael Cohen’s credibility, but I suspect he enhanced it. The defense was trying to make Cohen look like a thug, but they overshot and made everyone connected with Trump look like a thug.

and Trump’s assassination claim

At some point years ago, “Trump lies” stopped being a headline; it happens every day, so it’s not news. But this week included a lie so brazen and so outrageous that it deserves attention.

In a fundraising email responding to right-wing media reports that offered a distorted reading of a newly-unsealed court filing in Trump’s classified documents case, Trump falsely claimed Biden was “locked & loaded ready to take me out” when the FBI searched Mar-a-Lago in August of 2022.

In a separate post on his Truth Social platform Tuesday evening, Trump further said he was “shown Reports” that Biden’s DOJ “AUTHORIZED THE FBI TO USE DEADLY (LETHAL) FORCE” in their search of the property for classified documents.

So what’s real? FBI search warrants have boilerplate language that is actually about limiting lethal force:

law enforcement officers of the Department of Justice may use deadly force only when necessary, that is, when the officer has a reasonable belief that the subject of such force poses an imminent danger of death or serious physical injury to the officer or to another person.

In a court filing in the Mar-a-Lago case, Trump’s lawyers left out the “only”, leaving “may use deadly force when necessary”. That document recently got unsealed, and Trump conspiracy theorists jumped on it online, eventually leading Marjorie Taylor Greene and Fox News hosts like Jesse Watters and Jeanine Pirro to start discussing the “assassination plot” like it was a real thing, including imagining shoot-outs with the Secret Service. From there the wild story got back around the Trump, who pushed it for all it was worth. It’s not clear whether he realized that he started the misperception himself.

In reality, it has been known since the day it happened that the FBI had coordinated with the Secret Service and timed the raid so that Trump would be out of town. Trump knows this. MTG knows this. Jesse Watters and Jeanine Pirro know it.

Jack Smith has responded to this incident by noting the possible danger the rumor poses to FBI agents involved in the raid, who could be witnesses in Trump’s Mar-a-Lago trial, if Judge Cannon ever allows it to happen. He has asked Cannon to modify Trump’s terms of release “to make clear that he may not make statements that pose a significant, imminent, and foreseeable danger to law enforcement agents participating in the investigation and prosecution of this case.”

I can’t imagine the boot-licking Judge Cannon acknowledging that Trump lied or that his violent supporters predictably threaten the people his rhetoric targets. But she’ll have to respond somehow.

and you also might be interested in …

I can’t say I’m surprised that Nikki Haley has finally said that she’s voting for Trump. Did she previously say a lot of bad things about the Great Man? Join the club. Mitch McConnell, Kevin McCarthy, Ron DeSantis — they all said bad things about him before abasing themselves to kiss the ring.

But the people who think Haley is now in the running to be Trump’s VP are crazy. Trump’s VP has to satisfy these conditions:

  • You can’t outshine the boss. (That eliminates not just Haley, but MTG and Vivek as well.)
  • You can’t have your own following independent of the boss. (So: not DeSantis or Haley.)
  • You have to be willing to commit treason for Trump. (He’s not making the Mike Pence mistake again.)
  • You must be willing to repeat whatever claim the boss makes, no matter how absurd or counterfactual. (That’s why so many VP wannabees showed up at Trump’s courtroom wearing matching suits and red ties.)

Just to remind us that there’s no situation so good that a person can’t screw it up, former NFL star Antonio Brown, who earned $80 million during his 12-year career, has filed for bankruptcy.

If you were worried at all about Amy Klobuchar’s ability to hang onto her Senate seat in Minnesota, you can stop. Republicans looks set to nominate an absolute loon.

Cory Doctorow says that “AIs and self-driving cars are the new jetpacks”. It turns out that there was never any reason to think Jetson-style jetpacks were feasible.

In a terrific new 99 Percent Invisible episode, Chris Berube tracks the history of all those jetpacks we saw on TV for decades, and reveals that they were all the same jetpack, flown by just one guy, who risked his life every time he went up in it. The jetpack in question — technically a “rocket belt” — was built in the 1960s by Wendell Moore at the Bell Aircraft Corporation, with funding from the DoD. The Bell rocket belt used concentrated hydrogen peroxide as fuel, which burned at temperatures in excess of 1,000′. The rocket belt had a maximum flight time of just 21 seconds.

But Moore was a great showman, and got it into our heads that jetpacks were an inevitable part of the future — to the point that many people my age lament “Where are our jetpacks? We were promised jetpacks.”

Doctorow explains how the same kind of hucksterism is happening today with self-driving cars and AI in general. Big things are always just a year or two away, and if the impressive demo videos are mostly fake, they’re not lies, they’re “premature truths”.

and let’s close with something thought-provoking

If you’re looking for blogs to read, let me suggest Jess Piper’s “The View from Rural Missouri“. She has that rare touch for telling personal stories that capture something larger. Two posts to get you started: “Losing My Religion“, about how she drifted away from her Evangelical upbringing, and “Daddy Died a MAGA” about how the right-wing echo chamber turned her father into someone she couldn’t recognize.

Posted in Weekly summaries | Comments (32)

Alito’s Flags Aren’t the Worst of It

May 27, 2024 – 9:40 am

While we were watching the flags, Alito wrote a decision that greenlights racial gerrymanders and opens a door for Jim Crow to come back.

Samuel Alito has long been my least favorite Supreme Court justice, even before his anti-American-democracy flags (which I’ll cover in the weekly summary post that will follow this one), and even before he wrote the Dobbs decision. You might think I just dislike him because his judicial philosophy is different from mine, but I don’t think that’s it. You see, I’m not convinced he has a judicial philosophy.

What makes Alito a frustrating judge for me is that his rulings seem to have nothing to do with the law. In just about any case, you can predict Alito’s opinion by asking three simple questions:

  • Does one outcome favor the Republican Party?
  • Does one outcome favor the Catholic Church?
  • Does one outcome favor the Haves over the Have-Nots?

If the answer to any of those questions is “yes”, that’s where Alito will come down. You can safely make that prediction without knowing anything about the facts of the case or the relevant laws. All the stuff people argue about in law school is irrelevant.

Other justices will sometimes surprise. Even bought-and-paid-for Clarence Thomas has a few legal hobby horses that occasionally cause him to take a position I wouldn’t have expected. But as best I can tell, Alito has none. He has partisan commitments and he votes to support them; end of story.

Whenever I read an Alito opinion, I’m reminded of a distinction that occurs in religion, between theology and apologetics. Theology attempts to ascertain truths about God, but apologetics develops convincing arguments to defend prior religious beliefs. The two often resemble each other: When Thomas Aquinas claims to prove the existence of God through reason, is he nailing down something previously in doubt (theology), or is he evangelizing to rational people who otherwise might not believe in God (apologetics)? It can be hard to tell.

Similarly, Alito’s written opinions often resemble legal reasoning. He cites precedents, makes deductions, and in general constructs arguments that lead to conclusions. But the arguments appear to have nothing to do with how he reached those conclusions. Instead, they give a gloss of legality to Alito’s prior convictions.

The Dobbs decision is an obvious example: Ostensibly, Alito argues that

Our nation’s historical understanding of ordered liberty does not prevent the people’s elected representatives from deciding how abortion should be regulated.

The Dobbs opinion is one long history lesson justifying that claim. But its history is carefully edited, and Alito does not address the points made in an amicus brief by actual historians. [1] He appears to have no interest in history beyond how it might justify fulfilling the Catholic goal of overturning Roe v Wade.

This week gave us another example, whose importance is in danger of being lost in the controversy over Alito’s flags: He wrote the majority opinion in Alexander v South Carolina NAACP, a decision that Vox’ Ian Milhiser calls “a love letter to gerrymandering“. This decision gives states a green light to engage in all manner of racial gerrymandering; the practice is still technically unconstitutional, but under the standards of Alexander, it becomes nearly impossible to establish in court.

Gerrymandering. Let’s review a little: Gerrymandering means drawing the lines of electoral districts so that your side can win a decisive majority in some legislative body with only a minority of actual votes. There are numerous examples of this happening in state legislatures and even in the U.S. Congress. In extreme examples, a near-50/50 state can wind up with a legislative supermajority for one party. (Basically, you pack all of the other party’s voters into a few districts, which they win with 90% majorities. Then you distribute your voters so that you have reliable 55-45 wins in the other districts.)

On paper, gerrymandering is a cross-partisan problem, and there are states where Democrats gerrymander. But Democrats have tried to ban the practice, and on the whole it favors Republicans, whose rural voters are already more distributed geographically, and who have less shame generally about subverting democracy.

Not that many years ago, optimists thought partisan gerrymandering might get banned by the courts as a violation of basic democratic principles. That hope went out the window in the 2019 Rucho decision, where Chief Justice Roberts declared partisan gerrymanding “nonjusticiable”, meaning that whatever damage the practice might do to democracy, courts have no power to stop it.

But racial gerrymandering, where you draw lines to diminish the voting power of some racial minority, is still considered a violation of the 14th Amendment. The problem is how to tell the difference when a racial minority has predictable voting patterns. If South Carolina moves voters from one congressional district to another, how do we know whether they’re being moved because they’re Black (unconstitutional) or because they’re Democrats (nonjusticiable)?

The Alexander case. Here’s how Alito makes that determination in the current case:

The Constitution entrusts state legislatures with the primary responsibility for drawing congressional districts, and redistricting is an inescapably political enterprise. Legislators are almost always aware of the political ramifications of the maps they adopt, and claims that a map is unconstitutional because it was drawn to achieve a partisan end are not justiciable in federal court. Thus, as far as the Federal Constitution is concerned, a legislature may pursue partisan ends when it engages in redistricting. By contrast, if a legislature gives race a predominant role in redistricting decisions, the resulting map is subjected to strict scrutiny and may be held unconstitutional.

These doctrinal lines collide when race and partisan preference are highly correlated. We have navigated this tension by endorsing two related propositions. First, a party challenging a map’s constitutionality must disentangle race and politics if it wishes to prove that the legislature was motivated by race as opposed to partisanship. Second, in assessing a legislature’s work, we start with a presumption that the legislature acted in good faith.

In Alexander, Alito’s assumption of the legislature’s good faith bulldozes all evidence to the contrary. In particular, it bulldozes the deference higher courts are supposed to give to the factual findings of lower courts. In Alexander, a three-judge panel held a trial where they listened to witnesses and compiled a record that runs thousands of pages. That panel concluded unanimously that South Carolina’s gerrymander was motivated by race.

On appeal, higher courts are supposed to accept such judgments unless there is a clear error in the record. (The reason for this is simple: The appellate judges can read the record, but they didn’t hear the testimony. They have no basis for rejecting the lower-court judges’ conclusions about who was or wasn’t telling the truth.) But Alito rejects the lower-court findings because the three-judge panel made the “clear error” of not giving him the finding he wanted. They should have accepted South Carolina’s claims that race was not the motive if there was any possibility that it might be true.

Justice Kagan’s dissent shreds this argument, and concludes:

What a message to send to state legislators and mapmakers about racial gerrymandering. For reasons I’ve addressed, those actors will often have an incentive to use race as a proxy to achieve partisan ends.
And occasionally they might want to straight-up suppress the electoral influence of minority voters. Go right ahead, this Court says to States today. Go ahead, though you have no recognized justification for using race, such as to comply with statutes ensuring equal voting rights. Go ahead, though you are (at best) using race as a short-cut to bring about partisan gains—to elect more Republicans in one case, more Democrats in another. It will be easy enough to cover your tracks in the end: Just raise a “possibility” of non-race-based decision-making, and it will be “dispositive.” And so this “odious” practice of sorting citizens, built on racial generalizations and exploiting racial divisions, will continue.

Disrespect for precedent. Kagan also points out that the Court heard a nearly identical case in 2017: Cooper v Harris. In that case, Alito made a nearly identical argument, but he lost 5-3, and the lower court’s rejection of North Carolina’s map was upheld.

Cases like that are supposed to be binding precedents, but this Court no longer respects precedent, so it reached the opposite conclusion in this case.

What changed since 2017? Were new laws or constitutional amendments passed? Did we learn something new about gerrymandering that called previous conclusions into question?

Not at all. As with Dobbs, the only thing that has changed is the composition of the Court. With the addition of the Trump justices, the three dissenters in Cooper have become the majority. Kagan writes:

Today, for all practical purposes, the Cooper dissent becomes the law.

Going forward. As with Dobbs, the arguments in the decision have much broader implications. When you read Alito’s opinion, it’s easy to forget that the Court’s precedents against racist laws come out of an ugly history. Ignoring this history, Alito expresses great sympathy for state officials who might find themselves accused of racism

[W]hen a federal court finds that race drove a legislature’s districting decisions, it is declaring that the legislature engaged in “offensive and demeaning” conduct that “bears an uncomfortable resemblance to political apartheid.” We should not be quick to hurl such accusations at the political branches.

But you will search Alito’s opinion in vain to find any expression of sympathy for the victims of racism. It’s as if racism exists only as an “accusation”, something disreputably used to stain the reputations of White people, who deserve our “presumption of good faith”.

Kagan calls out Alito’s message to legislatures that want to gerrymander away the electoral power of non-White voters: “Go ahead.” But the Alexander decision is even bigger than that. It says “Go ahead” to any legislative attempt to reestablish Jim Crow. If legislatures just avoid announcing their racist intentions openly, if they create plausible cover stories for laws that disadvantage racial minorities, the Supreme Court will “start with a presumption that the legislature acted in good faith” and be quick to dismiss any evidence to the contrary.

[1] The historians’ brief begins:

When the United States was founded and for many subsequent decades, Americans relied on the English common law. The common law did not regulate abortion in early pregnancy. Indeed, the common law did not even recognize abortion as occurring at that stage. That is because the common law did not legally acknowledge a fetus as existing separately from a pregnant woman until the woman felt fetal movement, called “quickening,” which could occur as late as the 25th week of pregnancy.

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The Monday Morning Teaser

May 27, 2024 – 8:54 am

Like most people who follow the news, I spent much of the week thinking about Supreme Court Justice Samuel Alito, who (for reasons I’ll explain in the featured post) has long been my least favorite justice. (I suppose one sign that you might be a news nerd is that you have a least favorite Supreme Court justice.)

Alito made headlines this week because we found out that an insurrectionist flag flew over a second Alito home. This led to a lot of calls for him to recuse himself from any cases concerning January 6, which he obviously will not do, in keeping with the well-established grade-school principle of “Make me.” I’ll cover all that in the weekly summary.

But what struck me is a decision the Supreme Court released this week in which Alito wrote the majority opinion: Alexander v South Carolina NAACP. In this decision, the Court gives its approval to a congressional map that a lower court said was an illegal racial gerrymander. But (as with Alito’s abortion opinion in Dobbs), the implications go much further: Under the logic laid out in Alexander, just about any racial gerrymander is OK, as long as you don’t say it out loud. Going forward, any racist legislator who wants to pass a new round of Jim Crow laws should know that he’ll get a sympathetic hearing at the Supreme Court.

This week’s featured post centers on Alexander and its larger implications. It’s called “Alito’s Flags Aren’t the Worst of It”, and it should appear shortly.

That leaves the weekly summary a lot to cover: the flags, the International Criminal Court targeting Israel, the Manhattan Trump trial, Trump’s crazy charge that the FBI tried to kill him (and Jack Smith’s response), Nikki Haley endorsing Trump, Memorial Day, and a few other things.

In addition to the newsy stuff, I found some more general articles worth your attention, like Cory Doctorow’s comparison of AI to jetpacks, and a thoughtful woman’s blog from rural Missouri. I’ll try to get that out by noon, but it’s a holiday, so the schedule might slip.

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Not the End

May 20, 2024 – 11:24 am

The cabinet, the prime minister, they signal to the Shin Bet that if a Jew is killed, that’s terrible. If an Arab is killed, that’s not good, but it’s not the end of the world.

– former Shin Bet head Ami Ayalon
quoted in “The Unpunished: How Extremists Took Over Israel“

This week’s featured posts are “Wide Right: that kicker’s commencement speech” and “Two Significant Articles about Israel“.

This week everybody was talking about Israel and the Palestinians

That’s the subject of one featured post.

and the Trump trial moving towards its conclusion

I’m resisting the urge to write about the trial at length, because there’s one big thing we all want to know right now, and we can’t know it yet: What is the jury making of Michael Cohen’s testimony? I could speculate, I could link to other people’s speculations, or I could cast a hexagram from the I Ching, but in the end there’s nothing worth saying. We won’t know what the jury thinks until it produces a verdict.

Cohen is not quite done testifying yet. Today marks the third day of the defense’s cross-examination and Cohen’s fifth day on the stand altogether. Given how long it’s been since Cohen’s original testimony, the prosecution will probably want to question him in a redirect.

Cohen is the prosecution’s last witness, and the defense has been cagey about who it might call. Maybe Trump? Maybe no one? The burden of proof-beyond-reasonable-doubt is on the prosecution, so the defense could simply rest its case and claim that the burden has not been met. There’s no guessing how long the summation presentations to the jury will take, but we’re probably looking at the trial finishing either this week or next.

One major task for the prosecution’s summation will be to emphasize just how few points of its case rely on Cohen, and how unlikely all the alternative explanations are.

For example, without Cohen we already know that the payoff to Stormy Daniels happened and that Trump CFO Allen Weisselberg agreed to a plan for covertly reimbursing Cohen for fronting this payment. (We know the reimbursement was covert because Cohen was repaid double the amount he had paid Daniels in order to account for taxes. But taxes are unnecessary for a reimbursement. Only that fact that the reimbursement was hidden as “legal fees” accounts for the doubling.) Multiple witnesses have established that Trump was worried about Daniels’ story getting out, and that his worry centered on the election rather than on personal considerations (like Melania’s reaction). Multiple witnesses attest that nothing happened in the Trump empire without Trump’s personal approval.

Only Cohen’s testimony puts Trump in the room when the decisions were made. But if you disbelieve him on this point, what’s the alternative story? That Cohen paid Daniels $130K of his own money without Trump’s knowledge, that Weisselberg and Cohen fooled Trump with the reimbursement scheme, and that Trump signed $35K monthly checks to Cohen for a year without knowing what he was paying Cohen for. Really?

Various Republicans hoping for Trump’s favor have shown up at the courthouse looking like the Dear Leader’s mini-mes. And they wonder why we call it a cult.

Trump continues to be embarrassed that he hasn’t been able to get protesters to show up outside the courthouse, so he falsely claims that police are keeping them away.

and Alito’s insurrection flag

I’m not sure why it took more than three years for this to come out, but an upside-down American flag — the symbol of the pro-Trump Stop the Steal movement — flew over Justice Alito’s home for several days in the weeks following the January 6 insurrection.

Alito’s response to the revelation was ridiculous: His wife did it, in connection with some kind of dispute with the neighbors.

Alito’s statement is notable because, as the Times reporter Michael Barbaro pointed out, it does not deny that the flag was flown in solidarity with the insurrectionists. It also does not disavow the insurrectionist claim that the 2020 election was stolen, and it does not condemn the Trump-directed attempt to overthrow the constitutional order that Alito has sworn an oath to uphold.

Alito is the second justice whose behavior — sorry, sorry, his wife’s behavior — casts doubt on his ability to be impartial to cases involving January 6. (Clarence Thomas’ wife was actively pushing the false story of a stolen election in the lead-up to January 6.)

That raises the most important issue here, which is that Alito and Thomas sit on the nation’s highest court and are poised to rule on matters related to Trump’s attempts to unlawfully hold on to power. In one case, they already have—deciding that the Constitution’s ban on insurrectionists holding office does not disqualify Trump from running for president. The Court is set to rule on a challenge to a federal law used to prosecute the January 6 rioters, and in another case about Trump’s claim that former presidents have “absolute immunity” to prosecution for crimes committed as “official acts” in office. The 6–3 right-wing majority has made its partisan lean unmistakable. But there is still a difference between an ideologically conservative, or even partisan, Court and one with sitting justices whose worldview is so deranged by fanaticism that they would prefer the end of constitutional government to a president from the rival party.

An ethical judge would recuse himself from these cases. But when we’re talking about Alito and Thomas, the good ship Judicial Ethics sailed a long time ago.

and presidential debates

After a back-and-forth of taunts, it looks like there will be two presidential debates. The first is June 15 on CNN, moderated by Jake Tapper and Dana Bash. The second is September 10 on ABC, with moderators not named yet. Both debates will be open to candidates polling at least 15% among likely voters in four national polls. Whether RFK Jr. and his brain-worm will meet that standard remains to be seen.

I continue to be mystified by the negative coverage Biden’s presidential campaign is getting. Trump is currently ahead by less than 1% in the RealClearPolitics polling average, which looks pretty close to even to me. Several polls either have Biden ahead or see the race as tied. And yet Ezra Klein is examining “Why Biden is Losing“. If you just read headlines and don’t bother with the article “Biden is losing” is the only message you’ll get.

Josh Marshall discusses a related issue in “Is Biden in ‘Denial’ about the polls?” Biden, Marshall says, believes the polls don’t show his true strength for a number of reasons. But is that “denial” really?

The factual questions here aren’t terribly complicated and they’re not really the reason I note this article or write this post. Most polls currently show Biden just behind Trump in a tight race. Others show him either tied or just ahead. And there is a theory of the election that those polls, with a greater emphasis on high propensity voters and the concentrating effect of the final months of the campaign, will put Biden on top in November. I’ve tried to air these different arguments here in the Editors’ Blog. You can believe one or the other.

He attributes this pervasive pessimism to a psychological difference between Republicans and Democrats:

If a race is at all close, Republicans think they’re winning, or at least say they think they’re winning. Democrats are the reverse. And if they’re demonstrably winning, they worry that they’re not winning by enough or should be winning by more.

I have my own reasons to believe the polls will swing towards Biden as the election gets closer: Various voting blocs that have been Democratic in recent elections are down on Biden for one reason or another, like Gaza, and are not really thinking about Trump at all. But will young voters really let Big Oil elect a pro-fossil-fuel president? Do pro-Palestinian voters think Trump will be better for them? Do Hispanics really want to see their cousins rounded up in detention camps? I think a lot of those disaffected Democrats will eventually come home.

It doesn’t have to be all of them. I mean, we’re talking about covering a 1% gap.

Trump teased a third-term possibility in a speech to the NRA. In the same speech, a teleprompter malfunction had him completely stymied.

and that kicker’s commencement speech

See one of the featured posts.

and you also might be interested in …

The president of Iran has died in a helicopter crash. Maybe it was bad weather. Maybe it was that Iran’s helicopter fleet has a hard time getting parts, given American sanctions. Maybe it was foul play by either foreign interests or domestic rivals. Too soon to tell.

Governor Abbott pardoned a guy in prison for murdering a Black Lives Matter protester. One of the featured posts discusses how crimes by Israeli settlers against Palestinians have been routinely ignored by the authorities. Well, we have the same pattern here: If you agree with Abbott and kill somebody who disagrees with Abbott, that’s not really murder in Texas.

There’s a strong Nazi parallel here. In the early days of Hitler’s rule, the police were not nearly as scary as they eventually became. But the Brownshirts — non-government Nazi thugs — could do whatever they wanted and the police would look the other way.

A fascinating article in yesterday’s NYT about conservative Christian parents trying to create space in their lives for their transgender children.

The problem with basing a political movement on fiction is that once people get elected they get confronted with reality. Courtney Gore won a school board seat in Texas, pledging to stop the national campaign to indoctrinate children with progressive messages on sex, gender, and race. Once in office, she looked hard for such indoctrination, and didn’t find it. So she changed her mind.

The UAW’s effort to unionize Southern auto plants hit a pothole: The Mercedes plant in Alabama said no. This follows a UAW victory at a Volkswagen plant in Tennessee.

and let’s close with something peaceful

It turns out there’s a whole genre of videos showing natural beauty accompanied by relaxing music. This one focuses on Norway. I haven’t watched the whole thing — who has the time to get THAT relaxed? — but it looks fabulous.

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Two significant articles about Israel

May 20, 2024 – 9:26 am

This week saw the publication of two major articles about Israel, one concerning its recent policies in Gaza and the other a long-term look at the official tolerance of settler terrorism in the West Bank. “The Israeli Defense Establishment Revolts Against Netanyahu” by Yair Rosenberg in The Atlantic, describes the conflict within Israel about Netanyahu’s strategy in Gaza. “The Unpunished: How Extremists Took Over Israel” by Ronen Bergman and Mark Mazzetti in the New York Times goes back decades to tell the story of right-wing extremists in Israel who established illegal settlements in the West Bank, terrorized Palestinians, and eventually became a threat to Israeli democracy itself.

Let’s take them in that order.

The central issue of the defense establishment’s “revolt” (which has been entirely verbal so far) is the same issue that divides Israeli Prime Minister Netanyahu from President Biden: What’s the plan for Gaza’s future? Netanyahu has committed himself to nothing beyond Hamas’ total defeat, which itself is only defined vaguely. (As I explained last week, I see Hamas primarily as the idea among Palestinians that peace with Israel is impossible. If that idea is not defeated — which no purely military operation can do — a new insurgent force can reconstitute around it no matter how many fighters Israel kills or captures.)

The lack of a long-term plan for Gaza becomes a military issue because there is no post-Hamas successor government to keep Hamas from reappearing in areas that the Israeli Defense Force (IDF) has cleared. Consequently, soldiers have had to return to “cleared” areas two and even three times since October.

Wednesday, Defense Minister Yoav Gallant went on TV to protest his own government’s policy (or lack of policy):

Already in October, on the night of [the start of] our military maneuver [into Gaza], the defense establishment presented its war plan to the Cabinet, stating that it will be necessary to destroy Hamas battalions, while simultaneously working to establish a local, non-hostile Palestinian governing alternative.

Since October, I have been raising this issue consistently in the Cabinet, and have received no response.

The end of the military campaign must come together with political action. The “day after Hamas” will only be achieved with Palestinian entities taking control of Gaza, accompanied by international actors, establishing a governing alternative to Hamas’s rule. This, above all, is an interest of the State of Israel.

Unfortunately, this issue was not raised for debate. And worse, no alternative was brought up in its place.

Gallant alluded to the multiple long-term defense challenges Israel faces, including confrontation with Iran and its allies in Lebanon. Being bogged down endlessly in Gaza, he claimed, would sap the country’s ability to deal with those challenges. But absent a political solution for governing Gaza, he sees no alternative.

Then he threw down his gauntlet:

I will not agree to the establishment of Israeli military rule in Gaza. Israel must not establish civilian rule in Gaza.

The responsibility to dismantle Hamas and to retain full freedom of operation in the Gaza Strip rests on the defense establishment and the IDF, yet it depends on the creation of a governing alternative in Gaza, which rests on the shoulders of the Israeli government and all its various bodies.

Its implementation will shape Israel’s security for decades ahead.

I call on Prime Minister Benjamin Netanyahu to make a decision and declare that Israel will not establish civilian control over the Gaza Strip, that Israel will not establish military governance in the Gaza Strip, and that a governing alternative to Hamas in the Gaza Strip will be raised immediately.

Rosenberg explains why Netanyahu won’t do that:

Netanyahu cannot publicly commit to a postwar plan for Gaza that includes Palestinians, because the day-after plan of his far-right partners is to get rid of those Palestinians.

Yesterday, standing at a lectern emblazoned with the words settlement in Gaza will bring security, the far-right minister Itamar Ben-Gvir told a rally of thousands that the only way to defeat Hamas is to “return home” to Gaza and encourage “voluntary emigration” of its Palestinian population—a euphemism for ethnic cleansing. “Tell them,” Ben-Gvir declared, “‘Go to your homes, go to your countries. This is ours now and forever.’” Shlomo Karhi, a hard-right member of Netanyahu’s faction, offered similar sentiments. “In order to preserve the security achievements for which so many of our troops gave up their lives,” he said, “we must settle Gaza, with security forces and with settlers.”

Rosenberg quotes polls saying that most Israelis reject this solution, and that Gallant is far more popular than either Netanyahu or his right-wing allies. Another popular figure, war cabinet minister Benny Gantz, joined the rebellion this weekend, threatening to resign if Netanyahu has not brought the war to some kind of conclusion by June 8, which according to the BBC would include “the establishment of a multinational civilian administration”

Back in the 80s — in my memory it’s earlier than that, but the book wasn’t written until 1980 — I remember spinning a paperback rack in a department store and finding They Must Go by Meir Kahane. I didn’t buy it, but I read enough to realize what it was: a plea for Israel to ethnically cleanse Palestinians from the lands it controlled. At the time, I had no idea anyone in Israel was seriously imagining such a thing. But Kahane was the founder of a movement that has continued and grown, and is now a significant force in Israeli politics.

“The Unpunished: How Extremists Took Over Israel” by Ronen Bergman and Mark Mazzetti tells the story of that movement and related right-wing politics, going back to 1975 when the Israeli government decided not to remove the first illegal settlement in the West Bank.

The long arc of harassment, assault and murder of Palestinians by Jewish settlers is twinned with a shadow history, one of silence, avoidance and abetment by Israeli officials. For many of those officials, it is Palestinian terrorism that most threatens Israel. But in interviews with more than 100 people — current and former officers of the Israeli military, the National Israeli Police and the Shin Bet domestic security service; high-ranking Israeli political officials, including four former prime ministers; Palestinian leaders and activists; Israeli human rights lawyers; American officials charged with supporting the Israeli-Palestinian partnership — we found a different and perhaps even more destabilizing threat. A long history of crime without punishment, many of those officials now say, threatens not only Palestinians living in the occupied territories but also the State of Israel itself.

Events usually presented in American media as one-off lone-wolf incidents — terrorist bombings targeting West Bank mayors, two armed attacks on the Dome of the Rock mosque (in 1982 and 1994), the assassination of Prime Minister Yitzhak Rabin, and several others — are lined up and connected. Again and again, the Israeli government seems to be at war with itself: It convicts perpetrators and then pardons them, it declares settlements illegal and then funds them, it produces reports of pro-settler corruption and then buries them.

By now, individuals with deep ties to this terrorist movement are inside the government, including Itamar Ben-Gvir and Bezalel Smotrich, who sit in Netanyahu’s cabinet.

To me as an American, the situation in the West Bank is reminiscent of the South during Reconstruction, when the KKK was not an official part of government, but had many allies that would wink and nod at its crimes. The article begins and ends with Palestinians from the village of Khirbet Zanuta whose homes have been destroyed, and who go to the Israeli Supreme Court hoping to get the law to protect them.

A tiny Palestinian community, some 150 people perched on a windswept hill in the West Bank near Hebron, it had long faced threats from the Jewish settlers who had steadily encircled it. But occasional harassment and vandalism, in the days after the Oct. 7 Hamas attack, escalated into beatings and murder threats. The villagers made appeal after appeal to the Israeli police and to the ever-present Israeli military, but their calls for protection went largely unheeded, and the attacks continued with no consequences. So one day the villagers packed what they could, loaded their families into trucks and disappeared.

Who bulldozed the village after that is a matter of dispute. The Israeli Army says it was the settlers; a senior Israeli police officer says it was the army. Either way, soon after the villagers left, little remained of Khirbet Zanuta besides the ruins of a clinic and an elementary school.

Perhaps this kind of treatment will lead to another intifada, but maybe that’s the point.

Ehud Olmert, the former Israeli prime minister, said he believes that many members of the ultraright in Israel “want war.” They “want intifada,” he says, “because it is the ultimate proof that there is no way of making peace with the Palestinians and there is only one way forward — to destroy them.”

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Wide Right: that kicker’s commencement speech

May 20, 2024 – 8:58 am

Let’s not do to Harrison Butker what Trump did to Colin Kaepernick.

As you’ve no doubt already heard, last Saturday a football player (Kansas City Chief kicker Harrison Butker) gave the commencement address at Benedictine College in Atchison, Kansas. Much has been said and written about this speech, and there’s a petition asking the Chiefs to “dismiss Harrison Butker immediately for his inappropriate conduct”. Last I heard, more than 200K people had signed.

I try to know what I’m talking about before I write, so I watched the full speech on YouTube. (You can also read a transcript.) It’s a very traditional Catholic talk, including a lengthy endorsement of the Latin mass, so if you feel wounded by a Catholic upbringing (as many people I know do), you shouldn’t torture yourself with it.

That said, I would not sign the petition, because taking away someone’s livelihood is a big deal and should be reserved for more serious offenses.

Here’s what I think should happen: People who disagree with Butker and find themselves at a game where he takes the field should feel free to boo loudly. If you have access to any public platform, from your own TV show to a window-facing whiteboard, it would also be appropriate to make fun of him mercilessly. (Here’s an example to get you started.) I don’t know if he endorses any products, but if he does you can boycott them. All those actions just exercise the same freedoms he claims for himself.

So far, the Chiefs have said nothing and the NFL has distanced itself from his message without threatening any sanctions. That, again, is their right.

Of course, this response is nothing like what happened to Colin Kaepernick, whose NFL career ended prematurely after he knelt during the national anthem to protest racism. (Kaepernick’s unofficial shunning by teams who needed quarterbacks accorded with then-President Trump’s demand to “get that son of a bitch off the field.“) That gross injustice should not be forgotten — and in fact this is a good time to remember it — but dealing out a similar injustice to Butker will not right that wrong.

Anyway, here’s why I think Butker should not be punished beyond verbal humiliation: Benedictine College is a Catholic college that in recent years has moved to embrace traditional Catholic teachings and values. Students presumably choose to go there at least partially for that reason (though not all the graduates approved of Butker’s speech, and neither did the Benedictine Sisters associated with the College who said: “We reject a narrow definition of what it means to be Catholic”). Butker told the graduates, in essence, that they should feel good about what their school stands for. Places like Benedictine, he said, “are showing the world how an ordered, Christ-centered existence is the recipe for success.”

I have a lot of tolerance for religious groups making their case positively, as in “This is what we’re doing and it works for us. You should try it.” For the most part, that’s what the Benedictine College leadership seemed to be looking for and what Butker provided. At the end, he got a standing ovation.

Of course, Butker’s speech also included a lot annoyed me, beginning with his fairly snide remarks about “bad policies and poor leadership” during “the Covid fiasco”, which he seemed (without naming names) to attribute to Anthony Fauci but not Donald Trump (whose negligence is implicated in the deaths of hundreds of thousands of Americans). He talked about the importance of Catholics “staying in their lane”, but did not seem to do so when he criticized unnamed bishops. He denounced the “tyranny of diversity, equity, and inclusion”, and referred to “the deadly sin sort of pride that has an entire month dedicated to it”, i.e. gay pride.

He also spoke for his wife, telling “the ladies” what she “would” say about her choice to embrace her vocation as a homemaker rather than pursue her dream of having a career. For all I know he may be totally right about her lack of regret, but couldn’t he have asked her directly and then quoted her exact words, rather than ask himself and imagine her response? I was left to wonder (perhaps unfairly) how many opinions Mrs. Butker is allowed to have.

Mainly, though, he did what defenders of tradition so often do: justify a system in which he himself is privileged. Billionaires extol the virtues of low taxes, white Supreme Court justices tell us why laws protecting non-Whites are no longer needed, and Butker explains that

As men, we set the tone of the culture, and when that is absent, disorder, dysfunction, and chaos set in.

Yes, we men are being totally selfless when we demand to set the tone of the culture. We only do it so that society will be spared the chaos that would inevitably ensue if our God-given authority were ever questioned.

You’re welcome, ladies.

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The Monday Morning Teaser

May 20, 2024 – 8:14 am

Two very hard-hitting articles about Israel appeared this week. One in The Atlantic described the conflict within the government about Netanyahu’s strategy in Gaza, in particular the lack of any day-after plan and how that makes the military’s job nearly impossible. Another in the NYT lays out the decades-long history of the Israeli government turning a blind eye to crimes against Palestinians by West Bank settlers, and how the one-time radicals of that movement have become the establishment. I’ll describe the two in a featured post with an uncreative title: “Two Significant Articles about Israel”.

That should be out shortly.

A second featured post is considerably less heavy. Like everybody else, I decided to weigh in on Harrison Butker’s commencement address to Benedictine College in Kansas. I am not calling for his cancellation, because I don’t want the Colin Kaepernick fiasco to become the standard for judging outspoken athletes. That post will be called “Wide Right: That kicker’s commencement speech”. It’s also mostly done and shouldn’t take that long to get out.

In the weekly summary, I’m going to avoid a lengthy discussion of the Trump trial, because there’s not that much to say: A lot hangs on what the jury is making of Michael Cohen, and there’s just no way to know. There’s also the Alito flag incident and a few other things to cover. That should be out by noon.

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Unconstrained and Revolutionary

May 13, 2024 – 10:59 am

Every election is billed as a national turning point. This time that rings true. To supporters, the prospect of Trump 2.0, unconstrained and backed by a disciplined movement of true believers, offers revolutionary promise. To much of the rest of the nation and the world, it represents an alarming risk.

– Eric Cortellessa, “How Far Trump Would Go“

This week’s featured post is “What Trump Would Do“.

On my week off I led a Sunday service at the Unitarian Church of Quincy, Illinois. The topic may be of some interest to Sift readers: “Hope, Denial, and Healthy Relationship with the News“.

This week everybody was talking about Trump’s legal problems

As I reported two weeks ago, the prosecution continues to build a very strong case. The fireworks this week were over the testimony of Stormy Daniels, but it’s important to remember where she fits into the overall case: Trump is accused of falsifying business documents to cover up reimbursing Michael Cohen, who paid $130K for Daniels’ agreeing not to tell her story before the 2016 election.

So the actual truth of Daniels account isn’t relevant. The point is that her story would have damaged Trump politically, motivating him to pay her off and cover up doing so. I’ve heard a commentator describe her as an “exhibit” rather than a “witness”, i.e., the important fact is that her story exists. If it’s true, that’s just a bonus.

A great deal of Trump’s lawyer Susan Necheles’ cross-examination of Daniels attempted to make the jury doubt that her story is true. (Personally, I think Daniels sounds credible, and did a good job fending off the attempted slut-shaming.) But the fact that this story would have been damaging (especially in the weeks between the Access Hollywood tape and the election) seems indisputable. Even if you believe Trump’s claim that Daniels made her story up to extort money from him, you can still find him guilty.

After her testimony, Trump’s lawyers asked for a mistrial, on the grounds that the details of her alleged encounter with Trump were unnecessary and prejudiced the jury against him. Judge Merchan denied the motion, essentially saying that the defense had created the problem itself: It invited a detailed account by claiming in its opening statement that Daniels was lying, and failed to object to the questions that elicited the prejudicial information.

As I observed two weeks ago, the defense still tells no plausible story. The only part of the prosecution’s case that isn’t totally nailed down is that Trump knew about the payment and the reimbursement scheme. (This is the one undocumented part of the prosecution’s account. Like a Mafia boss, Trump is famously reluctant to use email or put anything in writing. Cohen will start testifying today about his instructions from Trump, but there are no corroborating documents or other witnesses.) But Trump is the only one with a motive to set the scheme in motion. Otherwise, you have to believe that Cohen completely on his own borrowed $130K to pay Daniels, that Trump CFO Allen Weisselberg came up with the reimbursement plan without telling his boss, and that the notoriously stingy Trump signed over $400K worth of checks to Cohen with no explanation beyond “legal fees”.

That’s a story, I suppose. But I don’t find it plausible enough to create reasonable doubt.

I wish this trial could be televised, because the transcript makes it look like Daniels won the battle of wits with Necheles. When Necheles characterized Daniels’ porn-directing career as “a lot of experience making phony stories about sex”, Daniels shot back: “If that story was untrue, I would’ve written it to be a lot better.”

After Daniels’ testimony, Trump asked for his gag order to be amended to allow him to respond. That motion was denied for an obvious reason: If Trump wants to respond to Daniels sworn testimony, he can take an oath and testify himself, facing the threat of perjury just like she did.

But that’s not what Trump wants. He wants to smear her in forums where he can lie without consequences.

He’s bound to make a similar request after Michael Cohen testifies, and he’ll get the same result. Trump claims it’s unfair that Daniels and Cohen aren’t gagged, so they can criticize him and he can’t respond. But they aren’t under indictment, and they have no record of inciting violence against people they attack online.

Meanwhile, the most open-and-shut case against Trump, the Mar-a-Lago documents case is indefinitely delayed. Judge Cannon plans a public hearing where Trump will get to air his baseless “malicious prosecution” theory.

ProPublica and the New York Times report on a tax problem that might cost Trump $100 million.

If you’ve ever wandered around downtown Chicago, you’ve undoubtedly seen the 92-story Trump International Hotel and Tower, which sits on the Chicago River proclaiming Trump’s name in giant letters. It looks like a monument to wealth and success.

Actually it’s anything but. The Tower opened into the worst of the Great Recession, and has been a money-loser from Day 1. Losing money, though, isn’t entirely bad, because it produces a tax write-off. The problem is that Trump appears to have written off the loss twice.

and Biden’s increasing rift with Netanyahu

Israel has begun attacking Rafah and is showing intentions to launch a full-scale invasion of the one piece of Gaza where civilians have been taking refuge. Wednesday, Defense Secretary Lloyd Austin told Congress that the administration was “pausing” shipments of certain weapons to Israel.

Austin said that the US is pausing the shipment of “high-payload munitions” due to Israel’s possible operations in Rafah without a plan for the civilians there.

Friday, a State Department report to Congress gave mixed reviews to Israel’s usage of American weapons so far.

The US says it is “reasonable to assess” that the weapons it has provided to Israel have been used in ways that are “inconsistent” with international human rights law, but that there is not enough concrete evidence to link specific US-supplied weapons to violations or warrant cutting the supply of arms.

Netanyahu continues to have no plan for governing Gaza after the killing stops. This is not just a political problem, it has turned into a military problem as Hamas reinfiltrates areas that had already been cleared.

Criticism of Prime Minister Benjamin Netanyahu has increased within the IDF and includes Defense Minister Yoav Gallant who want to know who will replace Hamas. procrastination, they say, has given the terror group space to regroup and force the IDF back into Gaza in larger numbers.

Netanyahu has argued that deciding on a new political manager for Gaza must wait until the war is over, but the IDF and Gallant have countered that during the last few months in which the military have had operational control of nearly all of Gaza avoiding a decision was a missed opportunity.

In my opinion, it is Biden and not Netanyahu who is truly looking out for Israel’s best interests. Netanyahu appears to me to think of Hamas as a leadership structure commanding some number of fighters; capture or kill all those people, and the problem is solved. But I think it’s more accurate to think of Hamas as an idea: Peace with Israel is impossible.

If at the end of this campaign Palestinians are convinced more than ever that peace with Israel is impossible, Hamas will reform — no matter how many of its current members Israel kills.

Meanwhile, the current war erodes the possibility of finding Arab partners to administer Gaza after the war ends. Yesterday, Egypt announced that it would support South Africa’s genocide charges against Israel at the International Court of Justice.

Pro-Palestine voters who are thinking of not supporting Democrats in the fall need to consider what Republicans will do if they get into power. Here, Lindsey Graham defends how Israel is prosecuting the war in Gaza by invoking the US nuclear attacks on Hiroshima and Nagasaki.

That was the right decision. Give Israel the bombs they need to end the war they can’t afford to lose.

When violent counter-protesters broke up the pro-Palestinian encampment at UCLA, the obvious people to suspect were pro-Israel students. But that appears not to be true.

researchers studying hate and anti-government groups have confirmed the presence at the counter-demonstrations of several far-right activists who have been involved in anti-LGBTQ+ and anti-vaccine protests across southern California over the past three years.

This is in line with previous reporting that anti-Muslim and antisemitic online trolls are often the same people. Spreading hate is the point. Any target of opportunity will do.

and the New York Times

I’ve seen a certain amount of debate in opinion columns about whether the NYT slants left or right. The answer, from my view, is complicated, because I think different things are happening at different levels.

You can’t really understand left/right journalistic bias without this observation: Most MAGA positions rely on believing (or at least arguing) things that simply aren’t true: an immigrant crime wave is sweeping through America’s cities, crime in general is up, climate change isn’t real, the Covid vaccine did more harm than good, the economy is terrible, Trump really won the 2020 election (which entails its own full basket of untruths: undocumented immigrants voted, dead people voted, voting machines were rigged …), healthy fetuses get aborted up to (and even past) the moment of birth, Putin’s invasion of Ukraine is justified, the Southern border is “open“, January 6 was a peaceful protest led by patriots, the Black Lives Matter protests burned American cities to the ground, and so on. (I’m sure I missed a few.)

At the reporter level, the NYT remains committed to accuracy, so to that extent it has a liberal bias. On any given day, a MAGA true believer who scans the front page of the Times will almost certainly find something to offend his beliefs about the world.

Similarly, NYT columnists are more likely to lean left than right, and conservative NYT columnists are likely to by anti-Trump. (Of course, yesterday they published a guest essay headlined “Biden is Doing it All Wrong.”) I have little doubt that as the November election approaches, the Times will officially endorse Biden.

But at the level where decisions about what to cover get made, the Times has been showing a decidedly conservative bias. Here’s some data gathered by the CSS Lab at the Annenberg School for Communication.

During the week that [Special Counsel Hur’s] report [on Biden’s retention of classified documents] came out, we examined the top 20 articles on the Times’ landing page every four hours. In that time, they published 26 unique articles about Biden’s age, of which 1 of them explored the possibility that Trump’s age was of equal or more concern. This seems like a lot of articles in a short amount of time, but it’s hard to say whether or not it is excessive without some other equally relevant issue to compare it with. Helpfully, an obvious comparison arose when, on February 10, 2024, Trump announced that if he regained power he would pull the US out of NATO and even encourage Russian invasions of democratic allies if their financial commitments were not to his liking. This announcement that Trump would upend the world’s core military alignment of the last 75+ years, garnered 10 unique articles in the timeframe.

Less quantitatively, I’ve been noticing slanted coverage of Trump/Biden polls. Polls that show Trump leading are highlighted, and sometimes garner multiple articles. Polls that show Biden leading get much less coverage. (Again, the polls themselves are reported accurately; reporters seem to be honest and objective.) Among the polls included in 538’s polling average so far in May, Biden leads in four, Trump in two, and they are tied in one. Would you have guessed that from reading the Times?

In general, if the Right wants the public to pay attention to some issue, that issue will get extensive coverage in the Times. It won’t always be covered in the (false) way the Right wants it covered, but the Times will draw its readers’ attention in that direction.

I have no inside knowledge about the NYT. But from the outside it looks like pro-Trump bias at higher levels competes with commitment to accuracy at lower levels.

and you also might be interested in …

Wednesday, the House voted 359-43 to table Marjorie Taylor Greene’s motion to oust Speaker Mike Johnson. Democrats joined Republicans to avoid yet another protracted leadership battle. It’s not clear what Greene thought she would gain by presenting this motion, which protests all the times in recent months Johnson has allowed bipartisan majorities to pass legislation.

“This is the ‘uni-party’ for the American people watching,” Greene said, as if the two parties working together for common goals constituted some kind of betrayal.

A couple of what-Trump-would-do things that have come in recently: He says he’d deport pro-Palestinian protesters and eliminate protections for transgender students.

Not so long ago, “Will you accept the election results even if your side loses?” wasn’t considered a gotcha question. But today’s MAGA Republicans seem to think it is. Watch Tim Scott squirm around answering it. When the interviewer tries to insist, Scott accuses her of bias: “This is why so many Americans believe that NBC is an extension of the Democrat Party.”

What Scott is indirectly pointing to is the main difference between the parties: Democrats remain committed to democracy even when they lose, but Republicans don’t.

Steve Bannon’s conviction for contempt of Congress was upheld by a federal appeals court. Former US attorney Joyce Vance comments:

Bannon is effectively out of appeals. He can delay a little bit longer, asking for the full court to review the decision en banc & asking SCOTUS to hear his case on cert, but neither one of those things will happen. Bannon is going to prison.

Remember how horrible it was when Biden said “Mexico” instead of “Egypt”? Well, Saturday Trump said “Beijing” when he seems to have meant “Taiwan”. And I have no idea what his tribute to “the late, great Hannibal Lecter” was about.

More serious than replacing one word with another, Trump increasingly utters noises that aren’t words at all, like “carrydoubtitebyrite” and “bordeninriviv“. We all call something by the wrong name occasionally, but I know I’ve never heard my verbal centers glitch like that. Something is wrong.

I was glad to see Brian Broome answer Jerry Seinfeld’s old-man complaint that America has lost its sense of humor due to “the extreme left and PC crap”.

I remember my Mom telling me that nobody was funny any more, not like Bob Hope or Red Skelton or the comedians she remembered. This was during the prime of people like Richard Pryor, Eddie Murphy, and Robin Williams, who I found hilarious.

I remember many of Mom’s favorite comedians. They made fun of drunks and mothers-in-law and so forth. At some point that stopped being funny, because comedy is always changing. If Seinfeld’s routines have stopped being funny, that’s on him, not “the extreme left”.

and let’s close with something colorful

A cloudy evening caused me to miss this weekend’s spectacular display of the northern lights across much of the world. This photo comes from Brunswick, Maine.

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