Isaac Laquedem

The House Democrats should pick a republican for speaker, but not just any republican

About a year ago, a republican political strategist named Sarah Longwell wrote in The Bulwark that the republican party was facing an ‘extinction event’ that resulted from Donald Trump having converted it into the MAGA party. The flailing efforts of the republican House majority to elect a speaker yesterday and so far today also are another sign that the extinction event has descended on the party.

Its schism into the group of the shamed and silent and the smaller and louder Trump-MAGA group brings back memories of the 1854 fracturing of the Whig Party, with some important differences, the largest of which is that the Whig Party fell apart over an irresolvable policy dispute: should slavery expand, continue, or be eliminated?  No common ground among the factions was available, as the policy difference was over a stark yes-or-no question.

By contrast the modern republican party gave up any pretense of policy ambitions years ago under Newt Gingrich’s leadership.  It has no policy; its modest platform for the 2020 election could be described as “policy” only in the way that a fig leaf can be described as “clothing.”  But where can the remaining rational republicans find a home?  On philosophical grounds they can’t join the Democratic Party, and without a billionaire or two as a funding source and a media presence (their henhouse won’t stand without a Fox to advertise it) they can’t start a new national party.  The two-party system needs two strong and responsible parties, and the republican leadership is too frightened of its cohort of crazies to make the effort to return it to reason.  Maybe what saves the system is not right-wing repentance but a variant of the solution played out in the Utah senate race, where the Democrats tried to elect a rational conservative to replace Mike Lee, something like the plain-bellied Sneetches temporarily donning stars.  The Democrats could contribute to bringing the opposition toward reason by picking a few moderate republican representatives and then voting as a bloc for those representatives, one after another, until one of their candidates from across the aisle attracts the votes of 10 sane republicans.  Odd as it would be for the Democrats to vote for a republican for speaker, doing so is their one way to get a speaker of the House who won't have had to make promises to the Boeberts and Gosars of the republican caucus.

A PSU professor calls out the University of Oregon for turning Trumpist on the First Amendment

Maxine Bernstein reports in today's Oregonian that the University of Oregon banned Bruce Gilley, a Portland State University professor, from replying to a UO Twitter account for 60 days because of a comment that Professor Gilley made in reply to that account, which belongs to UO's Division of Equity and Inclusion.  He was one of three Twitter users that the Division's communications manager (now retired) blocked.

Professor Gilley sued.  He argues that UP violated his right to free speech and is asking for nominal damages of $17.91 (because the states ratified the First Amendment in 1791) and an acknowledgment that UO violated his First Amendment right of free speech.  (The university unblocked his account the day after he filed suit.)  A federal court heard argument on Professor Gilley's suit on Friday.

As the saying goes, politics makes strange bedfellows.  UO turned to rising liberal icon Misha Isaak for its defense.  As reported by Ms. Bernstein, Mr. Isaak's defense of UO is mainly that the court should dismiss the suit because persons higher up in the university administration unblocked Professor Gilley when they learned that the Division had shut him out from commenting,  The administration has also reminded the Division of Equity and Inclusion that it cannot block speech based on the user's viewpoint.  I interpret Mr. Isaak's defense of UO as being mainly that because UO blocked his speech for only a short period, and because the UO official who blocked Professor Gilley didn't know about the First Amendment, the University didn't violate his constitutional rights in a big enough way to be worth the court's time.  Mr. Isaak also suggested that Professor Gilley "relished being canceled because it gives him a platform," a strange way to defend an apparent First Amendment violation.  But let's go back a few years to a similar story, still fresh in the minds of constitutional lawyers.

In 2017 President Trump blocked Twitter users with whom he disagreed from replying to tweets on his personal account.  Several of the blocked users sued, backed by the Knight First Amendment Institute at Columbia University.  They argued that the president conducted official business on his Twitter account and that it was effectively a government-sponsored platform from which he could not bar users based on the content of their comments.  Those plaintiffs attracted support from an institute at Georgetown University which filed a brief on behalf of an all-star cast of professors of constitutional law, including Erwin Chemerinsky, Geoffrey Stone, and Laurence Tribe. 

In 2019 the federal court for the Second Circuit ruled unanimously in favor of the Twitter users and against President Trump, and minced no words:  "Accordingly, we hold that the President violated the First Amendment when he used [Twitter's] blocking function to exclude the Individual Plaintiffs because of their protected free speech." Knight First Amendment Institute v. Trump, 928 F3d 226 (2019).  You can read the entire opinion here.

It's embarrassing for a public university with a law school to be caught out taking a page from Donald Trump's playbook and suppressing protected free speech because it doesn't like the speaker's message.  It's more embarrassing, or should be, when the part of the university doing the suppressing is the division that's devoted to providing room for all voices to be heard.  At the very least, the president of the university should take a few minutes to write a note of apology and acknowledge to Professor Gilley and the court that its Division of Equity and Inclusion messed up bigly.

An ode to Alex Jones's recent court losses

It was a solemn rite as e’er
Was seen by mortal man.
The celebrants, the people there,
Were all Republican.

Ed Rollins bent his grizzled head,
And Ari Fleischer too,
And one⁠—’twas Tucker, someone said,
Though no one clearly knew.

I saw the priest, white-robed and tall
Of strictly right-wing views
He was the pious man men call
To cast blessings on Fox News.

Ah, ’twas a high and holy rite
As anyone could swear.
“What does it mean?” I asked a wight
Who knelt apart in prayer.

“A mass for the repose,” he said,
“Of Alex Jones's ⁠—“What,
Is Alex Jones now dead?
’Tis sad, ’tis sad, God wot!”

“A mass”⁠—repeated he, and rose
To go and kneel among
The worshipers⁠—“for the repose
Of Alex Jones's tongue.”

-- Ambrose Bierce, brought up to date

Endorsements V - that famous ballot measure to rejigger the Portland City Council

Back in a bygone era of tech, someone had the bright idea to combine a television with a video cassette recorder, figuring that viewers would want to both record shows directly from their television, and play back videotapes through their television.  The idea was sound; the execution was not.  The manufacturers combined not-very-good screens with not-very-good VCRs.  They ended up with not-very-good appliances. 

Portland's measure 26-228, proposed by the Portland Charter Commission that was appointed for this purpose, would increase the city council from 5 to 12 and divide the city into districts, with three councilors elected from each district.  Under the proposal the mayor would have the right to introduce ordinances and break tie votes, but would not be a member of the city council.  The mayor's primary function would be to supervise the City Administrator, a new position.

Measure 26-228 would also change how the city counts votes.  The mayor and city auditor would be elected by ranked-choice voting, a system used in some other American cities that allows a candidate in a crowded race who is no one's first choice but everyone's second or third choice a shot at being elected.  The city councilors, however, would be chosen by a sort of hybrid method (think TV plus VCR here) in which voters would rank their candidates by preference, as with ranked-choice voting.  The difference comes in how the ballots are counted.  Let us suppose that 90,000 ballots are marked in a particular council district, with three persons to be elected.  The three persons would each need 30,000 votes to be elected.  Now imagine that the race has attracted seven candidates (call them A through G, like notes on a scale).  If 42,000 people mark A as their first choice, then A will keep 30,000 of those votes and be elected.  The other 12,000 votes of A will be reallocated to the second choices of those voters.  After the excess A ballots are allocated, the lowest of the remaining 6 candidates, let's say it's candidate G, will be eliminated, and G's votes will be reallocated to the voter's second choice, if the second choice is not A, who has already been elected, or  G because it's a transferred vote of someone who ranked A first and G second.  I think those ballots get reallocated to the voters' third choices.

Then the process starts anew with the candidates B, C, D, E, and F.  If one of them now (let's say it's B) has more than 30,000 votes then B is elected and the excess votes of B are now allocated among C, D, E, and F, who may have been ranked second, third, or fourth on those ballots.  The lowest finisher, let's say it's now F, is eliminated, and F's votes are allocated among C, D, and E.  The process may continue for one or two more rounds, depending on how the votes are cast. 

One problem with devising a vote-counting method for a race with more than two candidates is that in 1951 Kenneth Arrow proved that it is impossible to design a vote-counting system that is assured to yield a winner and that satisfies five basic requirements of fairness: first, that it not produce a cyclical result in which the voters prefer A to B, B to C, C to D, and D to A; second, that the result does not always match the preferences of any particular individual (i.e., no dictatorship); third, that it can handle any possible combination of voting alternatives (e.g., people who vote for fewer than the maximum number of candidates, or who have odd orders of preference); fourth, that it respect head-to-head alternatives (e.g., if more than half of the voters rank A above B, then A will finish the count ahead of B); and fifth, that the system respects unanimous individual preferences (e.g., if everyone ranks A above B, then under no circumstances can B win and A lose).   One person of the many who submitted public comments, James Kahan, mentioned Arrow's Impossibility Theorem.  I don't know if the Charter Commission discussed it, and ranked-choice voting survived for the mayor's and auditor's seats but not for the city council.

What did survive for the city council is a kludge - a collection of ill-fit parts without a coherent design.  The Charter Commission had a good idea when it proposed to remove the "commissioner" part of the city council's duties and to make them simply councilors to establish policy that the mayor, through the city administrator, would then implement.  I'll agree that we are ready to elect councilors from districts to ensure that each part of the city is known to someone on the council, which is rarely the case.  (The Laquedem memory goes back to a time when four of the five councilors lived in Irvington or Alameda.)  I'm not persuaded that the council has any systemic problem that we can solve by tripling its size and converting the governing body from a council to a jury-sized debating forum.  I recommend a NO vote on Measure 26-228.  I look forward to the proposal that Commissioner Mapps intends to bring forth in the spring.

 

Endorsements IV - A Clackamas County race and the Portland City Council

Isaac briefly diverts from the Rose City to look southward to Clackamas County and its most important race on the 2022 ballot, which is neither of the races for the county commission, but the campaign for county clerk, in which Catherine McMullen, a Multnomah County elections administrator, is challenging longtime incumbent Sherry Hall.  The most visible function of the county clerk is to supervise the county's elections.  Ms. Hall has racked up an impressive number of unforced election errors since she was first elected in 2002, amassing enough mistakes and bad conduct to fill a Willamette Week article in 2012.  In the ten years since then she's continued to fumble county elections, which WW helpfully compiled into another article this summer.  Voters in Clackamas County should give the office an upgrade that's long overdue, and replace Ms. Hall with Catherine McMullen.

One position on the Portland City Council is on next week's ballot.  Incumbent Jo Ann Hardesty and businessman Rene Gonzalez are in a runoff for a council seat.  Mr. Gonzalez has made street crime and homelessness centers of his campaign.  Commissioner Hardesty responds that she led the push to improve Portland Street Response, a non-police response to persons having crises of mental health, and has supported funding increases for permanent housing.  Underlying their debate is the City's interpretation of a Ninth Circuit case from 2018, Martin v, City of Boise, which some believe bars Portland from prohibiting the homeless from camping outdoors.

Before I turn to the Martin case, let's start with some data.  Since at least 2009 Multnomah County has conducted biennial censuses of homeless persons, though the census scheduled for 2021 was postponed to January 2022.  Homeless persons are counted in three categories: the unsheltered (people living outdoors, in tents, and in cars), people in shelters, and people in transitional housing.  From 2009 to 2019 the number of homeless persons counted in Multnomah County was fairly constant, ranging from 3801 in 2015 to 4655 in 2011.  The unsheltered population was also fairly constant, ranging between 1,591 in 2009 and 2,037 in 2019, with a typical number being about 1,800.

Something changed between 2019 and 2022, because the 2022 census found 5,228 homeless people in Multnomah County (up 30% from 2019), of whom 3,057 were unsheltered, living in tents or cars - up an astonishing 50% from 2019 and unique in the tri-county area.  (Over the same three-year period Clackamas County's count of the unsheltered fell from 371 to 327, a 9% drop, and Washington County's count of the unsheltered went from 232 to 227, essentially flat.) 

What has changed since 2019?  Isaac suggests these four factors, one of which is unique to Portland and another to Multnomah County.  The first is that in 2020 Oregon voters approved Measure 110, which decriminalized possession of many ordinary street drugs for personal use.  Measure 110 was billed as replacing drug policing with drug treatment.  The drug policing has stopped; the drug treatment has not started.  (Read what OPB said about Measure 110 last year.)  Consequently demand for street drugs has increased, and with it the customers' search for funds with which to buy drugs.  Glass repair shops and street-level retailers have become the involuntary funders.

Second is that even as Portland worked to get people off the street and into shelter, Multnomah County happily handed out tents and tarps to enable homeless persons to continue to live outside.  Last year Multnomah County distributed 6,550 tents to the homeless in the county, meaning mainly to people living on Portland streets and in Portland parks, which is somewhere between two and three tents for each unsheltered person in the county.

Third is that Portland took Martin v. City of Boise as barring the city from removing tents and prohibiting public camping unless the city could provide shelter to every unsheltered person in the city.  On this point I believe the city erred.  This short piece in the Harvard Law Review explains the ins and outs of the Martin decision in detail.  My take is that the decision prohibits cities from prosecuting the homeless for sleeping in public at night if shelter beds are available.  If not enough shelter beds are available on a particular night to accommodate all unsheltered persons in the city, then the city may not criminalize those who sleep without shelter.  It may, however, restrict sleeping and camping to designated areas; it may prohibit camping in other areas; it may continue to prosecute the unsheltered who take and dismantle cars.

That brings me to the fourth factor, and back to the city's election.  The fourth factor is that the city council and the Multnomah County district attorney have sent a clear message to the Police Bureau to stop enforcing minor laws, in particular property crimes.  Commissioner Hardesty led that message, both by securing a $15 million cut in the police budget and in pushing to cut another $18 million and 42 vacant police positions, a move that failed in 2020 and is one of the causes of downtown Portland's pandemic of broken windows.

The happy day when county prosecutors will revise their priorities must await the election of 2024.  Portland voters can take one small step toward refreshing the city by giving Rene Gonzalez the chance to argue his policies as a city councilor.

 

Endorsements III: The race for Governor

Christine Drazan and Tina Kotek, the two major-party candidates for Oregon's governorship, conflict over the role that unaffiliated candidate Betsy Johnson, a former Democrat, will play in next week's election.  Ms. Drazan asserts that Ms. Johnson is a spoiler who will siphon republican votes away and give Ms. Kotek the win.  Ms. Kotek's campaign equally vociferously claims that Ms. Johnson will siphon Democratic votes away and give Ms. Drazan the victory. 

They can't both be right.  Some recent polls suggest that Ms. Drazan is more successful at holding on to republicans than Ms. Kotek has been in drawing support from Democrats, which strongly implies that Ms. Johnson's views are closer to the Democratic center than to the republican center, and less strongly implies that Ms. Kotek is farther from the Democratic center than Ms. Drazan is from the republican center. 

All three candidates agree, however, that the administration of Governor Kate Brown has been a failure.  It's not surprising that Mss. Drazan and Johnson would campaign against Governor Brown; what's changed in the last three weeks is that Tina Kotek is also campaigning against Governor Brown.  The Brown administration's failures and missteps may be the only subjects on which the three candidates agree, and polls show her to be the nation's most disliked governor.

The voters that really matter in Oregon's statewide races, however, are the non-affiliated voters.  (They used to be called "independents" before an enterprising would-be politician grabbed the name "Independent" for a minor political party.)  About a third of Oregon's voters are non-affiliated and another third are Democrats.  About a quarter are republicans.    The non-affiliated voters slightly outnumber the Democrats. 

All three candidates are qualified by legislative experience to serve as governor.  Except for their shared dislike of Governor Brown and their professed willingness to allocate state resources to ameliorate the crisis of the homeless camps and their attendant crime and filth, Mss. Drazan and Kotek share no ideological ground.  Ms. Johnson is somewhere in between them.  She does state, however, that she is willing to try to solve Oregon's problems without resorting to party lines, and as an independent governor she would have to try.

Despite Christine Drazan being in the reasonable wing of her party - unlike some of her legislative caucus she is not an election denier - I can't persuade myself to vote for a republican for governor until the party as a whole regains its moral bearings.  Neither can I bring myself to vote for Tina Kotek, who is running against an administration that she spent the last several years supporting.  This year I am voting for Betsy Johnson, whom I believe to be the best of the candidates to lead Oregon through its current mess. 

By voting for Betsy Johnson do I increase the chance that Christine Drazan is elected?  Perhaps.  I'm willing to take that risk both because I believe that the Oregon Democratic party should return to the days when it earned support instead of demanding it, and because I believe that Ms. Kotek would take my vote for her, tiny though it be in the overall total, as an enthusiastic endorsement instead of a reluctant concession.

2022 Endorsements II: NO on Measure 113 (truant legislators), YES on Measure 114 (gun regulation)

Like Measure 111 (unfunded guaranteed health care), Measure 113 sounds like a good idea.  We pay legislators to be in Salem and legislate; shouldn't we eject legislators who play hooky from the Capitol? Measure 113 would amend the constitution to disqualify from reelection any legislator who, in a single legislative session, misses 10 or more days when the legislature is meeting without having received permission or an excuse.  The measure does not identify who grants permission or accepts the excuse.

The quirk behind Measure 113 is that the constitutional requirement for a quorum for the Oregon house and senate is not a simple majority (31 representatives, 16 senators) but two-thirds (40 representatives, 20 senators).  A party in the minority that holds at least 21 house seats or 11 senate seats may bring the chamber to a halt by not showing up.

In recent years the republicans have been the ones who haven't shown up; the Democrats last staged a walkout in 2001 to protect redistricting.  No one filed an argument in opposition.  The measure is nevertheless bad policy, both because it does not say who gets to grant permission - the presiding officer? The house or senate by majority vote? The majority or minority leader? - and because it takes from the voters the right to boot their representatives.  I don't favor walkouts, but I have seen legislators walk out not to avoid representing their constituents, but to carry out the wishes of their constituents.  The voters, not the legislature, should decide whether an absent legislator is ill, lazy, or zealous.

Measure 114 is a common-sense gun regulation measure that requires gun buyers to take a gun safety course before acquiring a weapon, prohibits most off-the-books transfers of firearms, and prohibits magazines that can hold more than 10 rounds of ammunition.  Until I see a plausible argument that (1) gun owners need less training than alcohol servers and boat owners, and (2) there is a genuine self-protection reason for Oregonians to be able to kill more than 10 people at a time, I'm willing to add regulations that may reduce exsanguination.  I vote YES on Measure 114.

2022 Endorsements I: NO on Measure 111, YES on Measure 112

Oregon's voters face an odd array of statewide ballot measures.  Here's Isaac's take on two of them.

Measure 111 would add this sentence to the state constitution: "(1) It is the obligation of the state to ensure that every resident of Oregon has access to cost-effective, clinically appropriate and affordable health care as a fundamental right."  The measure would also add a weakish qualifier: "(2) The obligation of the state described in [section 1] must be balanced against the public interest in funding public schools and other essential public services, and any remedy arising from an action brought against the state to enforce the provisions of this section may not interfere with the balance described in this section."   The statement of financial impact states "The financial impact to state and local expenditure and revenue is indeterminate. The measure does not require additional state government revenues or expenditures. The impact of the measure will depend on future legislative action to establish additional health benefits and determine how they will be paid for."  The legislative argument in support of Measure 111 states that the measure "protects state spending in other critical areas by requiring that health care spending be balanced with funding all other services the state provides, like schools and public safety.  This measure also does not increase any taxes, and that is because it does not make any changes to current health programs or policies."  Most of the published arguments in support likewise claim that the measure is a lofty aspirational statement, not a budgetary mandate.

The legislature got this one wrong, both in the drafting and in the argument.  First, the drafting.  Section 1 obligates the state to ensure that Oregonians have access to "cost-effective" and "affordable" health care, which implies that if an Oregonian cannot afford health care, the state is required to pay for the care.  I don't object to national health care as a general policy (Western Europe has got on quite well with national health care) but the wording creates an unfunded mandate with no cap.  The legislative statement in support misreads the measure because the measure does not allow the state to balance health care spending against "funding all other services the state provides," but only against "public schools and other essential public services." 

I read the measure to prohibit Oregon from spending any money on anything other than public schools and "essential public services" until the state has provided affordable and accessible health care to every Oregonian.  But what is an "essential public service"?  Nowhere in Oregon law does the term appear.  The state performs many desirable and frequently laudable functions, such as subsidizing public television and radio (ORS chapter 354), providing loans to veterans (chapter 407), administering wildlife laws and operating wildlife refuges (chapters 496 to 500), and regulating wages and hours (chapters 651 to 653).  None of those functions can fairly be called an "essential public service" similar to education, highway maintenance, and law enforcement, however. 

I see Measure 111 as inviting litigation over what the legislature can and cannot fund, and pitting the beneficiaries of some government programs against the beneficiaries of other government programs.  I recommend voting NO on Measure 111.

Measure 112 is much more straightforward.  In 1857 the framers of the Oregon constitution prohibited slavery in the state "otherwise than as a punishment for crime, whereof the party shall have been duly convicted."  The 13th Amendment to the United States constitution, adopted in 1865, used almost the same language: it prohibited slavery nationwide "except as a punishment for crime whereof the party shall have been duly convicted." 

The only argument filed against Measure 112 is from a group of county sheriffs who oppose slavery and involuntary servitude, but believe that the measure, as worded, would force them to end in-prison work programs.  I understand their concern; I believe that they are misreading the measure.

Oregon has not seriously tried to impose slavery as a punishment for crime, and the words that legislators chose in 1857 and 1865 are now outdated.  It's time to remove "slavery" from the constitution.  Isaac has voted YES on Measure 112.

Why forgiving student loans makes the republican party's indentures fall out

The 13th amendment abolished slavery and "indentured servitude" except as punishment for a crime.  The United States succeeded in abolishing slavery.  An economist might look at the vast realignment in the past 40 years not just of wealth but of debt and conclude that indentured servitude has made a comeback.

 

In 1999, near the end of the Clinton administration, the residents of only three states (Hawaii, Maryland, and California) had average household debt that exceeded 1.5 times household income. By 2008, the last full year of the Bush (43) administration, the household debt-to-income ratio was above 1.5 to 1 in 40 states, and above 2 to 1 in 20 states.  The fortunes of American households improved under Bill Clinton Barack Obama [thank you, Diana H.]; in 2016 only two states (Hawaii and Maryland) were above 2 to 1, and 30 states were above 1.5 to 1.  Household debt to income improved under Trump; in 2020 only Hawaii was above 2 to 1 and 21 were above 1.5 to 1.

 

What is astonishing about the statistics is not that household debt-to-income ratios improved somewhat under the Trump administration and through the pandemic, but how much the burden of household debt has increased since the Clinton administration.  It's from that fact that I derive my theory about indentured servitude: the debt burden of the average American household is what compels many adults to work two jobs, to be unable to save, and to accept low wages. The heads of households are effectively in indentured servitude: compelled to work in order to pay interest on debts without making progress on the principal. The genius of private student loan programs is that they have extended indentured servitude upward into the college-educated classes. Not just the plumber but the psychologist must work to service debt and feed the creditor class.

 

It's perhaps for this reason that the republican party so stridently opposes President Biden's forgiveness of student loans, and the concomitant lessening, however slightly, of the financial ties that bind the graduates to their corporate overlords.  Heaven forbid that the masses should be able to pay their bills on time.

"Exit, pursued by an alligator"? Donald Trump's legal team learns that a sad tale's best for summer

The Trump legal team's response to the Justice Department over Mr. Trump's request that the court appoint a special master to review the documents that the government recovered from Mar-A-Lago, filed today in federal court in Florida, is not up to the usual low standard of the team's legal work.  The hilarity begins on page 1, when Mr. Trump's lawyers call it "extraordinary" that the Justice Department believes that the Justice Department should be "entrusted with the responsibility of evaluating its unjustified pursuit of criminalizing a former President's possession of personal and Presidential records in a secure setting."

On the next page the lawyers do acknowledge that something called the Presidential Records Act exists, one sentence before they step off of the bridge into the moat of alligators:  "Thus, there is no question and, indeed there is broad agreement, that the matters before this Court center around the possession, by a President, of his own Presidential records."  Not content to swim with the alligators, the lawyers then offer themselves as nutriment for the carnivorous:  "Indeed, the warrant intentionally blurs important distinctions in referring to the ability of FBI agents to seize 'Presidential Records' (the PRA never concerns itself with traditional classification labels) while wrongfully suggesting the applicability of the Espionage Act and referring to expectations of recovering classified or highly classified documents."

Where do the alligators come in?  Let's take their missteps one at a time. 

First, it is traditional, and in fact statutory, for the Justice Department to investigate possible federal crimes.

Second, while Mar-A-Lago may be a "secure setting" in the sense that the doors lock and the security cameras work, it is not a secure setting in the way that the SCIF in Congress is a secure setting.  ("SCIF" stands for "Sensitive Compartmented Information Facility."  There's one in the White House and another in Congress.  They tend not to be found at country clubs.)  And Mar-A-Lago has become known for lapses in security: in March 2019, a Chinese "business consultant" managed to enter Mar-A-Lago with a bagful of electronics and get past five Secret Service agents and into the reception area, all while Mr. Trump was still the president and had a robust cadre of Secret Service agents on the property.

Third, the lawyers inexpertly said that the case is about the possession, by an [ex-]President, "of his own Presidential records."  Are they "his own Presidential records"?  In one syntactical sense, they are; that is, they are records about Mr. Trump's four years as president.  In the legal sense, however, they are not "his own Presidential records," for the Presidential Records Act, 44 USC §2201 ff, states that "The United States shall reserve and retain complete ownership, possession, and control of Presidential records."  The Presidential Records Act also states that when a president leaves office, "the Archivist of the United States shall assume responsibility for the custody, control, and preservation of, and access to, the Presidential records of that President."  The law is quite clear that the Presidential records of Mr. Trump's term don't belong to him; they belong to the nation, and the Archivist is entitled to hold and preserve those records.

Fourth, they erred badly in suggesting that the affidavit supporting the search warrant improperly referred to the possibility that the FBI might recover classified documents from Mr. Trump's office at Mar-A-Lago - because the FBI did recover classified documents.  

Why do Mr. Trump's lawyers sign their names to such shoddy legal work?  One possibility is that they know their client has no real defense, and they're serving not as his lawyers so much as his public relations agents.  Another possibility is that they themselves don't know how bad their arguments are, but they're the best of the lawyers that are still willing to tie their reputations to Donald Trump.  (Rope, meet millstone.) 

The third possibility is that they themselves are among the alligators, hoping to dine well on Mr. Trump's legal troubles and then to get out before the final crash, rather like the guests at the legendary ogre's feast who ate and drank well, realizing only too late that the ogre would dine on the last remaining guests.

Gutta cavat lapidem, non vi sed saepe cadendo

"Dripping water erodes rock, not by force but by persistence."

January 2021:  The Department of Justice subpoenas cell phone location data from Google to identify who was in the Capitol on January 6.

May 12, 2022:  The January 6 committee issues subpoenas to Rep. Kevin McCarthy and four other House Republicans.

June 22, 2022:   The Department of Justice executes a search warrant at the home of former Acting Assistant Attorney General Jeffrey Clark, taking his computer and cell phone.

June 22, 2022:   The Department of Justice simultaneously seizes the cell phone of Trump lawyer and Big Lie advocate John Eastman.

July 2022:  Trump associate Roger Stone and his wife agree to pay $2.1 million to the IRS to settle their liability for back income taxes.

August 3, 2022:  It transpires that the grand jury investigating the January 6 insurrection issued subpoenas to former White House counsel Patrick Cipollone and Patrick Philbin.

August 8, 2022:  The FBI executes a search warrant on Donald Trump's quarters at Mar-A-Lago.

 

Dinner with Robespierre, and others

You may have heard these two observations of America:

I do not know if the people of the United States would vote for superior men if they ran for office, but there can be no doubt that such men do not run.

            And

The American Republic will endure until the day Congress discovers that it can bribe the public with the public’s money.

Those are not quotations of today.  They come from the Frenchman Alexis de Tocqueville (1805-1859), who traveled around the United States in the 1830s and compiled his observations into the famous book, “Democracy in America,” published in 1835, which we all were supposed to have read in high school. 

To understand de Tocqueville, consider where he came from.  He was born only 12 years after the Reign of Terror.  The French revolution was not the stuff of history but an event that still echoed.

The French revolutionaries of 1789 liked to think that they were inspired by the American revolution of 1776.  There’s an important difference in what happened after each Revolution.  After a short-lived weak confederation, the 13 states organized a new federal government, and our basic government structure has stayed the same since.

Not so the French.  They went from the revolution of 1789 to the republic and the reign of terror of 1792, had a civil war and a counterrevolution, were displaced by Napoleon in 1799, restored the monarchy in 1814, pushed out Napoleon, got him back, pushed him out again, and got the king back – all in less than 50 years.

One of the classic "what if" questions is "If you could invite anyone in history to a dinner party, who would you ask?"

For one of my historical dinner parties I would invite the people who set de Tocqueville on his way.  The first is the person who brought about the end of the French monarchy, Maximilien Robespierre (1758-1794).

Robespierre was a young lawyer, barely 30 when he led the French Convention to abolish the monarchy and not yet 35 when he persuaded the Convention to execute Louis XVI in January 1793.  He had a vision of the ideal Republic.  He prepared the very liberal constitution of 1793, but never implemented it.  He led the French toward his goal – until they saw that he was ordering the deaths of anyone who stood in his way.  Seeing their own danger, the Convention organized against him.  In July 1794 he left France the same way that King Louis had departed, head first.

Imagine that you could hear de Tocqueville interview Robespierre.  If Robespierre could rewrite history, would he have pushed Louis XVI to the guillotine?  Would he have executed hundreds of his political enemies?   Or would he listen to de Tocqueville’s recounting of American success and understand that he could have brought about the same result for France?

Every case has two sides.  If we dine with Robespierre, we will invite Louis XVI.  You may know him for marrying Marie Antoinette and how they met their end.  There’s much more to his story.

Louis XVI succeeded his father in 1775.  Louis began his reign as a reformer.  He tried to abolish serfdom.  He tried to get rid of the land tax and the labor tax.  He tried to foster religious tolerance.  On the spectrum of French kings he was a liberal and a reformer.  He supported the American revolution, but the resulting national debt combined with bad grain harvests led to the lower and middle classes becoming as unhappy with him as the aristocracy had been.  He made all sides angry.

He could not stave off the French revolution in 1789, he was arrested and deposed in 1792, and he went to the guillotine in January 1793.

We can imagine De Tocqueville, after a glass or two of a fine Bordeaux, encouraging Louis and Robespierre to argue about whether Louis could have avoided the revolution and execution.  Would Louis have gone into exile to save the lives of himself and his family?  Or would he, like a sea captain, “go down with the ship”?

I’d invite a fourth person to join us, one you’ve likely never heard of other than as the namesake of a station on the Paris Metro.  His name is Chretien Guillaume de Lamoignon de Malesherbes (1721-1794).  Why him?

The French Convention included many lawyers.  Malesherbes was one of them.  Malesherbes offered to defend Louis XVI at his trial, knowing that by defending the unpopular king he was risking his own life as a very visible royalist.  He was right - fifteen months after Louis XVI went to the guillotine, Malesherbes died the same way, together with his daughter, his granddaughter, and their husbands.  Did Malesherbes regret dying for his belief in the principle that every accused person is entitled to a defense?

I wouldn't pose the question myself, but I'd encourage Alexis de Tocqueville to ask Malesherbes, as I expect he would; de Tocqueville was his great-grandson.