Thursday, July 30, 2020

Republican Senate Candidates Alter Images of African-American, Jewish Opponents; Trump Wants Election Delayed

In politics, altering the image of a political opponent in an advertisement is considered to be crossing an ethical line.   This is even more so true when the alteration is being done to exploit racial attitudes.  I remember a number of years ago when the GOP ran attack ads against then Indianapolis congresswoman Julia Carson, an African-American, in which her face was darkened.  The tactic was roundly criticized in the media and, as I recall, prompted an apology from the Republicans.

I guess we shouldn't be surprised in the era of Trump that some Republican candidates have chosen to cross that ethical line and exploit voters' prejudices.  The Hill reports on Trump's No. 1 enabler, South Carolina Senator Lindsey Graham using the tactic against his African-American opponent, Jamie Harrison:
Democrat Jaime Harrison hit Sen. Lindsey Graham (R-S.C.) on Wednesday for running a Facebook ad that features an apparently darkened image of the Senate hopeful in the background, suggesting that the ad carries racist undertones. 
“Lindsey Graham is playing a part in a 400-year history of an Old South that had no
room for people who looked like me,” Harrison, who is Black, said in a statement, later adding that “Lindsey Graham might have darkened my face — but it’s Lindsey who the people of South Carolina can’t recognize.”  
The ad, which began running on July 23 and cost less than $100, according to Facebook’s ad library, features an image of comedian Kathy Griffin superimposed over a darkened background and a photo of Harrison. The effect used on the photo makes Harrison’s skin tone appear darker. 
In Georgia, Republican Senator David Perdue, another huge Trump supporter in the Senate, is squaring off a Jewish candidate, Jon Ossoff.  Since the Ossoff's name is not a tip he is Jewish, how could Perdue get the message across to Georgia voters? Why, of course, make Ossoff's nose bigger!  If the voters still miss that Ossoff is Jewish, just add in a better known Jewish politician to the ad.  CNN reports:
Republican Sen. David Perdue's campaign took down a Facebook ad that appeared to make Democratic candidate Jon Ossoff's nose bigger, following accusations of anti-Semitism.
The Facebook ad, showing Ossoff next to Senate Democratic Leader Chuck Schumer,
said, "Democrats are trying to buy Georgia!"  
The Ossoff campaign noted that both he and Schumer are Jewish.  
"Sitting U.S. Senator David Perdue's digital attack ad distorted my face to enlarge and extend my nose. I'm Jewish. This is the oldest, most obvious, least original anti-Semitic trope in history," said Ossoff.
The Perdue campaign deleted the ad following a report by the Jewish publication The Forward. A Perdue campaign spokeswoman said the size of Ossoff's nose in the ad was an "unintentional error" caused by an "outside vendor" who applied a filter that "distorted the image."
First, I'm not sure what type of "filter" makes a Jewish candidate's nose appear larger.  Second, Trying to blame the tactic on an "outside vendor" is pretty silly since the campaign screens and approves those ads before they are published.   But at least the Perdue campaign apologized and took the ad down, two steps that Graham's campaign has thus far refused to take.  

Returning to the Graham ad, some readers will say the darkening of Harrison's skin is irrelevant because voters already know he is African-American. Vesla Weaver, who teaches political science at Harvard University, has studied the impact of the darkness of one's skin on their electoral chances.  She concluded that it is not just the race of the candidate which matters, but also how dark one's skin is: 
Color in this study had a large, unambiguous effect that was independent of race. The magnitude of the effect of race on candidate evaluation depended primarily on color. With few exceptions, darker skin magnified the effect of race, exacerbated stereotypical beliefs about candidates, and made certain categories of voters more or less likely to support the candidate. Light-skinned black candidates were more immune from race effects in both directions (bias for and against). Like race and gender cues in electoral politics, skin color also operated as a shortcut in candidate evaluation. Sensitivity to skin color was especially likely when subjects were not aware of differences based on racial categories. In the situation of a same-race election between black candidates, the effect of darker color was consistently associated with negative reactions. Candidates who shared the same race were nevertheless treated and evaluated quite differently. Future studies might build on this research by evaluating the impact of color for minority voters.  
Historical norms and legal precedents that evolved to treat blacks as all of a group and ignore internal variation by mixed ancestry and color prescribed the understanding and practice of race in ways that meant that color did not become a salient identity, even while large intraracial disparities and color bias persisted. This study, like others in sociology and psychology and economics, has shown that intraracial variation by color has an unmistakably large impact on voters’ perceptions of candidate quality. However, studies of racial cues, audit studies of discrimination, and racial stereotyping continue to design their studies that treat race as a binary category and racial groups as internally consistent, potentially missing a source of racial bias that operates without awareness of egalitarian norms. Continuing to ignore an important form of racialized perception risks damaging our studies. For example, experimental studies that alter the race of the target and measure policy preferences may find that their results are improved by being attentive to the phenotypical variation among blacks. 
Color has recently emerged in several studies as an important influence on cognitive perception and behavior, such that the extent to which a person appears ‘‘stereotypically Black’’ influences judgments of character, criminality, and whether a victim of a natural disaster exacts sympathy, as well as shaping actual life chances and experience, such that the outcomes of minorities are further stratified by color. However, the possibility that color may play a role in racial bias has been a central deficit in studies in race politics. The point of this exploration confirms that skin color bias is an understudied, albeit significant, aspect of white racial attitudes.
OOPs Short Takes:
  • In April, Joe Biden was ridiculed by the Trump campaign for suggesting the President would try to delay the election.  Yesterday, Trump tweeted his support for . . . you guessed it, delaying the election.  Trump's reasoning is that  the use of mail-in ballots will lead to widespread fraud.  I suspect the tweet was more about undermining the legitimacy of the election rather than obtaining a postponement.   If Trump truly wanted to delay the election, and was smart (which he clearly is not), he would emphasize the danger of having people go to the polls in the middle of a pandemic. Nonetheless, moving the election back would require a vote of Congress and even Trump's biggest sycophants in the House and Senate do not appear interested in doing that.
  • Sadly, former presidential candidate Herman Cain died today of Covid-19.  Cain, a former presidential candidate, was head of "Black Voices for Trump."  Cain, who was 74 years old, attended Trump's Tulsa rally
  • State presidential polls released today include Florida, Arizona, Pennsylvania, North Carolina, Wisconsin, Michigan, Arizona, Virginia and New Hampshire.  Biden leads in all those states by 7 points or more, with the exception of Florida and North Carolina.   The two Florida polls have Biden leading by 4 and 7 points, while two North Carolina polls have Biden trailing by 2 points and ahead by 1.
  • U.S. Senate polls in Arizona and North Carolina released today show Republican incumbents losing by 18 and 11 points respectively.   A poll out of Michigan shows John James, once considered a top GOP challenger, losing by 17 points.  FYI, a second North Carolina poll does show the race between Republican Senator Thom Tillis and his challenger Cal Cunningham to be even.

Wednesday, July 29, 2020

Major League Baseball Struggles to Deal with HIPAA Privacy Obligations as More Players and Coaches Come Down with Virus

Last week, major league baseball finally started its Covid-19 shortened baseball season.  Unlike the NBA and NHL, MLB did not choose to play the games in a "bubble" or "bubbles" to limit travel and exposure in hotels, restaurants, etc.  But extensive precautions were taken nonetheless, including daily testing w/immediate results.  It thus far has not worked as several MLB players, coaches, and other personnel have contracted the virus.  This includes the Miami Marlins which had at least 15 players and other personnel returned positive tests, resulting in the, at least, week suspension of the Marlin's season.

My Cincinnati Reds have not been spared.  One game into the season, backup infielder/DH Matt Davidson was placed on the injured list for testing positive.  Two games into the season, the Reds lost centerfielder Matt Senzel and second baseman Mike Moustakas.  The Reds though were being real cagy about saying why Moustakas was placed on the IL and Senzel disappeared from the lineup.  Moustakas and Senzel are integral to the Reds' success this season.  Unfortunately, members of the
Reds bullpen, which has proven to be horrific this season, have been spared the virus.  Sorry, bad joke.

When Senzel and  Moustakas went down, I looked for an explanation as to what happened to them.  It was several days later that the news leaked that both players had self-reported Covid-19 symptoms.  (It is unclear whether they actually tested positive for Covid-19.)  They are both appealing the league mandate that they sit out games. 

Why did that information about players sitting for Covid-19 concerns have to "leak out" instead of being reported publicly when it happened?  Because MLB, which provides health care services for its players, is considered a provider under HIPAA, which protects patient's privacy.  While players have waived HIPAA confidentiality restrictions as to baseball-related injuries, they have not waived those confidentiality provisions when it comes to an illness, which may, or may not, be related to playing baseball.  While Health and Human Services has indicated it is waiving HIPAA fines as to certain situations when Covid-19 information is released, those situations are very limited and do not include the dilemma MLB faces in reporting.

Obviously, not being able to reveal which players test positive for Covid-19, makes it hard to do contract tracing for others who were exposed to the virus.   Players should have been required to waive the confidentiality rule as to Covid-19 test results as condition to participate in the baseball season.  Nonetheless it remains that, for the general population, HIPAA remains a major obstacle to controlling the virus.  While reporting general numbers about the spread of Covid-19 is helpful, it is much more helpful to know the exact individuals who test positive so people who come into contact with them can be notified.  Many people infected with Covid-19 are not going to waive the confidentiality provisions of HIPAA.

OOP's short takes:

  • Speaking of Covid-19, guess who in Congress has now tested positive?  Louie Gohmert.  The Texas Republican has been adamant about not wearing a mask, claiming he did not need one because he was tested regularly for the virus.  He told CNN in June, that if he gets Covid-19, he will never be seen without a mask.   Gohmert is running neck-to-neck with Florida's Matt Gaetz for dumbest person in Congress. Both are attorneys.  Gohmert is even a former judge.  Does not speak well for my chosen profession.
  • Yesterday, Donald Trump admitted he has never brought up with Russian President Vladimir Putin intelligence he has received that Putin had paid Taliban fighters bounties for every American soldier killed in Afghanistan.  This included eight phone conversations with Putin, including a call last Thursday, long after the bounties was publicly reported.  During the Axios interview, Trump also defended Putin's arming of the Taliban to kill American soldiers using the "we do bad things too" defense.  Can we please stop pretending Donald Trump is some sort of "patriot" and is putting America's interests first.  Donald Trump is a traitor.
  • News this morning is that Trump is sending federal law enforcement officials to quell violent crime in three cities, Milwaukee, Detroit and Cleveland.  What is the common thread with all those three cities?  They are all heavily Democratic cities in swing states - Wisconsin, Michigan, and Ohio - that Trump needs to win the election.
  • Regarding the presence of federal law enforcement, most crimes are governed by state law. My understanding is that federal law enforcement officials sent to these cities have to be protecting federal buildings or federal monuments, or somehow enforcing federal criminal law.  Are they straying from that mission?  Is the Pope Catholic?
  • Attorney General Bill Barr said he will leave his position if the election result is "clear."   Is anyone else bothered by that answer?  As I've said before, there is no more contemptible person in the Trump administration than Attorney General Bill Barr. 

Tuesday, July 28, 2020

Trump Tells a Lie as People Die; State Polls; and Senate Enablers

Okay, I had to make the first part of that headline singular so it would rhyme.  After all, if something rhymes, then it has to be true. (Remember from the O.J. Simpson trial  "If it doesn't fit (the glove), you have to acquit.")  Of course, Trump has not told a solitary lie...he's lied more than 20,000 times since he's been President, and is now up to nearly 24 lies per day.

This lie involves the President retweeting a video in which "doctors" standing on the steps of the United States Supreme Court (not sure why they were there) saying masks were not needed because there already was a cure to Covid-19, hydroxychloroquine, the anti-malaria drug Trump had earlier touted as being effective against the virus.  So, according to the "doctors" there is a conspiracy to withhold the Covid-19 "cure" from Americans so more will die and sink the Trump presidency.  So much for Trump turning over that new leaf and approaching the pandemic like a responsible leader.

Today, Dr. Fauci, the apparent leader of the conspiracy, pushed back on the nonsense peddled by
Dr. Fauci
Trump:  “The overwhelming prevailing clinical trials that have looked at the efficacy of hydroxychloroquine have indicated that it is not effective in [treating the] coronavirus disease.”  

On a somewhat related note, remember how the New York Yankees invited Dr. Fauci to throw out the first pitch.  Dr. Fauci's tossing the first ball received a lot of attention and he even got a top-selling baseball card out of it.  A day or two after Fauci walked off the mound, Trump announced that he had accepted the Yankees' invitation to throw out the first ball at the August 15th game against its mega rival, the Boston Red Sox. 

I was actually surprised, not that Trump was invited (after all, it is a longstanding tradition for Presidents to toss out the first ball), but that Trump had accepted the invitation.  While it is an honor to throw out the first ball, it can also prove to be very embarrassing, a fact Dr. Fauci found out when his "pitch" dribbled wide left into a different zip code.  I could not imagine that Trump, who claims to have been the best baseball player in New York during his youth (at the same time Mickey Mantle was playing for the Yankees), would risk the derision that would come should he throw a Fauci-like pitch off a major league mound.   It was not more than a couple days later though that Trump announced he was too busy dealing with the pandemic to throw out the first pitch.

That excuse, which allowed him to back out, raises the question then as to why Trump accepted the Yankees invitation in the first place.  Well, turns out the Yankees did not invite Trump to throw out the first ball on August 15th.  It was all a lie.  Apparently Trump was so jealous of the attention Fauci was receiving for his first pitch, Trump made up his own invitation.  Trump has the temperament of a five year old.  My apologies to five year old children everywhere.

OOP's short takes:
  • Rich Lowry of the National Review has launched an attack on the anti-Trump Republicans running the Lincoln Project who have targeted for defeat not only President Trump, but also several GOP Senators.  Lowry says those Senators have done nothing wrong except have an "R" by their name.  Lowry, who after Trump's election, sold his conservative soul to go all in on Trumpism, ignores the fact those Republican Senators enabled Trump to undermine the Constitution, conservative values, and the the future of the GOP.  They did NOTHING as Russia placed bounties on the heads of American soldiers, and Trump used his position to engender the worst sort of corruption in government and invited foreign interference into our elections.  Those Republican Senators had the power to stand up for conservative and democratic values, as well as ethics and integrity, but they instead chose to bow down to Trump in an act of incomprehensible fealty.  I'm not saying those Republican Senators are as responsible for Trumpism as Trump.  I'm saying they are more responsible.   The "Republican" enablers in the U.S. Senate need to pay a price.  So too should Trump sycophants like Rich Lowry who sold out their conservative values to make money off Trumpism.  
  • Numerous state polls released today,   Let me address them separately by pollster below:
  • Morning Consult:  Biden +7 in Wisconsin; Biden +11 In Virginia; Biden +2 in Texas; Biden +8 in Pennsylvania; Trump +3 in Ohio; Biden and Trump even in North Carolina; Biden +3 in Minnesota; Biden +10 in Michigan; Biden +1 in Georgia; Biden +3 in Florida; Biden +13 in Colorado; Biden +7 in Arizona
  • Public Policy Polling:  Biden +3 in North Carolina; Trump +5 in North Carolina; Biden +11 in Maine; Trump +1 in Iowa; Biden +1 in Georgia; Biden #13 in Colorado; Trump +6 in Alaska
  • Good news for Trump in the above polls is that he may still have a shot in Minnesota, which would offset his losing a states he won in 2016, such as Michigan which increasingly seems out of reach.   Also, swing states such as Florida and North Carolina, must wins for the Trump camp, are well within reach. Finally, Trump remains competitive in the second tier swing states like Iowa, Texas, Ohio, and Georgia.  Of course, those are all states Trump won in 2016 and and he should not have to worry about in 2020.  So the fact they are close is not good news.
  • The Lincoln Project released an ad mocking the "Try Something New" program started by  Ivanka Trump as a solution for those out of work by her father's bungled handling of the pandemic.  It's pretty funny.  In the contest among Don, Jr. Eric and Ivanka for dumbest Trump kid, Ivanka is definitely in it to win it. 

Monday, July 27, 2020

Weekend Polls Results Continue to Bring Republicans Bad News; Reagan Foundation Does Not Want to be Associated with Trump

Last column was on Friday.  I wanted to update on the weekend state presidential polls as well as those released, thus far, today.

Presidential Race (in parenthesis is Trump's winning margin in the state in 2016):

North Carolina:  +7 Biden (Trump +3.6)
Ohio:  +1 Trump (Trump +8.1)
Michigan:  +6 Biden, +12 Biden (Trump +0.3)
Florida:  Biden +5 (Trump +1.2)
Arizona:  Biden +4, Biden +5 (Trump +3.5)
Pennsylvania: Biden +3 (Trump +0.7)

Meanwhile, the Trump campaign continues to flounder in its effort to find a 2020 message.  First, the "Sleep Joe" nickname proved  counterproductive as voters seem interested in a nap after four years of
Trump chaos.  So then Trump tried "Dementia Joe" only to find the nickname put under the microscope his own cognitive abilities, which polls show voters are more worried about than Biden's.  Then it's "law and order," an attempt to somehow blame urban unrest on Biden even though its occurring under his watch.  That message does not seem to be working either.

There are two poll results for Trump that are devastating.  One is the number of people who say they will absolutely not vote for Trump under any circumstances. That number is running around 50%, a devastating figure for any candidate, much less an incumbent.

The second number is the "double hater" poll result.  That looks at who voters that dislike both candidates say they will vote for.  In 2016, Trump won that category against Hillary Clinton.  But in 2020, double hater voters heavily favor Biden over Trump.  That means Trump running up Biden's negatives, won't move the needle much.   What Trump desperately needs is to not run down Biden, but improve his own favorabilities.   He needs to find a way to be seen as more competent, more empathetic, more likeable.  I just don't see how he can pull that off.

The Trump campaign will also try voter suppression.  No, not the made up "voter suppression" Democrats are screaming about, things such as voter ID laws, purging non-voters, and less early voting.   I mean real voter suppression like trying to force people to risk their lives by going to the polls to cast a ballot in the middle of a pandemic instead of allowing the option, albeit an  imperfect one, of mailing in their ballot.

Trump will also no doubt welcome, again, foreign interference into the presidential election, as long as that interference is on his behalf.  But if the election does not appear like it's going to be close, Russian President Vladimar Putin and Chinese President Xi Jinping might decide to sit this one out instead of getting on the wrong side of the incoming Joe Biden administration.

OOP's short takes:

  • The Reagan Foundation is telling the Trump campaign and the Republican National Committee to stop using Reagan's likeness to raise money.  Good.   As a Republican, I find nothing more offensive than the worst President in American history, Donald J. Trump, being associated with one of the best, Ronald Reagan.  Trumpism is a stain on the Republican Party and I hate to see it used to drag down one of its icons.
  • The Trump campaign responds that the Reagan Foundation earlier accepted the assistance of the Trump family in raising money.  That's a good point.  It also tried to allege that the Reagan Foundation took its position because the CEO of the Washington Post is on the board of the Reagan Foundation and former GOP Speaker Paul Ryan is on the board of Fox, which is issuing "suppression polls."  Okay, that's just stupid.
  • I am afraid the MLB season may not make it to the end.  Several players have already tested positive for Covid-19.  So many on the Miami Marlins tested positive that the team had to cancel its next two games, including tonight's home opener.  If baseball, which has some social distancing built into the sport, can't make it, I can't imagine how the NFL season is going to happen.  You can't social distance and be a good football player. 
  • The initial thinking was the Republican might lose four Senate seats (Arizona, North Carolina, Nevada and Maine) while gaining a seat in Alabama.  While Alabama still looks like it will be flipped in the GOP's favor (even though the primary produced a weaker Republican candidate), it looks like the Democrats might win 6-8 seats.  It could go even higher.

Friday, July 24, 2020

Members of DC Bar Ask for Ethics Investigation of Attorney General William Barr; More Bad Trump State Polls

Politico reports:
Four former presidents of the D.C. Bar Association have signed a letter calling on the group to investigate whether Attorney General William Barr has violated its rules. The District of Columbia Bar authorizes lawyers to practice in the city and has the power to punish them for breaking its rules and to revoke their law licenses. 
The complaint argues that Barr has broken Washington's ethics rules by being dishonest
and violating his oath to uphold the Constitution, along with other charges. And it highlights four episodes in Barr’s time as attorney general to make the case: his characterization of special counsel Robert Mueller’s report on Russia’s 2016 election interference, his criticism of an inspector general report on the Russia probe, his criticism of FBI officials in a TV interview, and his role in the disbursement of peaceful protesters from Lafayette Square, outside the White House. A spokesperson for the Justice Department declined to comment.   
“Mr. Barr’s client is the United States, and not the president,” the letter says. “Yet, Mr. Barr has consistently made decisions and taken action to serve the personal and political self-interests of President Donald Trump, rather than the interest of the United States.”Barr’s early description of the Mueller report and his handling of protesters in Lafayette Square have long drawn pointed criticism. But his comments on the inspector general report on the FBI’s Russia probe hasn’t drawn as much attention. In an NBC News interview after the report’s release, Barr called the FBI’s basis for opening the Russia probe “very flimsy.” The letter argues that the criticism was dishonest. 
The letter also argues that Barr broke the D.C. Bar’s rules when he criticized former FBI officials’ decisions regarding the Russia probe and suggested they could be prosecuted. The letter focused on a comment Barr made in a CBS News interview: “Just because something may even stink to high heaven and ... appear [to] everyone to be bad, we still have to apply the right standard and be convinced that there’s a violation of a criminal statute.” 
The letter argued the statement could unfairly influence potential criminal proceedings against those officials and that Barr should have followed the standard DOJ practice of declining to comment on ongoing investigations....
Unfortunately disciplinary investigations take a long time and Barr is likely to be long gone from the Attorney General position long before such an investigation could be concluded.  Nonetheless, an ethics investigation is certainly warranted.  In his role as Attorney General, Barr has repeatedly lied in legal proceedings and to the American people.  He has politicized the Department of Justice and trashed the rule of law.  Even though the United States and the American people are his clients, not President Trump, Barr has repeatedly used his position to advance Trump's political and personal agendas.

Trump threatened to withhold congressionally-appropriated military aid Ukraine needed to counter Russia's advances, unless Ukraine would help him politically by announcing a fake investigation of Joe Biden.  For that, Trump certainly deserved impeachment.  But as bad as Trump's behavior was, Barr's misconduct is much more extensive and knowing.    In Trump's defense, he is not a bright man and often, I truly believe, has no concept that what he is doing is wrong, or illegal.  Barr on the other hand knows what he is doing is legally and morally wrong and does it anyway.  Of all the Trump enablers out there, Attorney General William Barr is the absolute worst...and the most dangerous.  He is corrupt to the core.

OOP's Short Takes:
  • Still in shock after late yesterday's release of the Quinnipiac poll or registered voters showing Biden leading by 13 points in Florida.  Biden does not even need Florida to win the election.
  • If yesterday's Quinnipiac poll was not bad enough, then came the Fox News poll showing Biden down, among registered voters, 11 points in Pennsylvania, 9 points in Michigan, and 13 points in Minnesota.  Minnesota, for the record, was won by Hillary Clinton by 1.5% of the vote in 2016.  With its mostly white and rural makeup, Minnesota has been at the top of the list of 2016 blue states that the Trump folks thought they could win in 2020.
  • Gravis Marketing, a usually friendly Trump poll, released results today showing Trump down by 9 points in Michigan and 8 points in Wisconsin.
  • As far as the U.S. Senate races, polls released today show Republican incumbents in North Carolina, Maine and Arizona all losing from between 5 and 9 points.  Two polls came in on the Michigan Senate race where the GOP's best hope for a pickup (not including Alabama) John James is desperately fighting the Trump's unpopularity.    They both show incumbent Democrat Gary Peters beating James by 10 points.
  • Cook Political Report now concludes that the Democrats are favored to win control of the U.S. Senate.
  • In terms of the Electoral College, Cook Political Report has 308 electoral votes in the Solid, Likely and Lean Democratic category and 187 electoral votes on the Republican side of the ledger.  Arizona, Georgia, Maine 2nd CD and North Carolina are listed as toss ups.  I would probably still list Georgia and North Carolina as "Lean Republican."  Cook also lists Ohio as "Lean Republican."  I have seen enough polling in that state to believe it deserves at least "toss up" status if not "Lean Democrat."   Interestingly, Cook Political Report at t some point downgraded Indiana from "Solid  Republican" to the "Likely Republican" label.  Larry Sabato's Crystal Ball also moved Indiana to a more competitive category.  What polling are they looking at?  While I suspect Indiana may end up being more competitive than the Trump people expect or want, I just haven't seen any polling yet to support my suspicions.

Thursday, July 23, 2020

Judge Orders Michael Cohen Released, Finds Order Returning Him to Prison "Retaliatory"; Florida and GOP Infighting

MSN reports:
A federal judge on Thursday ordered the release of Michael Cohen to home confinement, agreeing with his lawyers that he was wrongly sent back to prison after making public statements critical of President Donald Trump. 

Cohen began serving a three-year prison sentence last year for financial crimes and lying to Congress. But when the pandemic hit, he was released in May as part of a nationwide program allowing federal inmates to be transferred to other prisons or confined to their homes.... 
A week after tweeting that he was finishing a tell-all book about Trump, Cohen was told by a probation officer that he would have to agree to a complete ban on speaking in public, including by publishing a book, as a condition of continued home confinement, according to court documents. He was asked to sign a form that included this provision: "No engagement of any kind with the media, including print, tv, film, books, or any other form of media/news. Prohibition from all social media platforms." 
"I've never seen such a clause in 21 years of being a judge and sentencing people," said federal District Judge Alvin Hellerstein. "How can I take any other inference but that it was retaliatory?" 
Cohen's lawyers said when they asked if that provision could be modified, they were told that the officers would need to discuss it with their superiors. But a short time later, Cohen was placed in handcuffs and shackles and sent back to Otisville."Michael Cohen refused the conditions of his home confinement and as a result, has been returned to a BOP facility," prison officials said in a public statement. But his lawyers said he never refused to sign anything. 
Sending him back to prison was an effort by the Trump administration to censor criticism of the president, Cohen's lawyers told the judge. They cited previous court rulings which held that prisoners retain the First Amendment right to write and publish articles critical of government officials 
In a declaration filed in court, Cohen said his book will describe his experiences working as a lawyer for Trump before and after the presidential election, including "graphic and unflattering details" about Trump's behavior.
Is there any doubt that the order to re-incarcerate Cohen when he refused to stop speaking out publicly against the President came from the highest levels of the Justice Department?  The obvious explanation for the unique gag order on Cohen's speech is that Attorney General Bill Barr was doing Trump's bidding by trying to stop the publication of a tell-all book by Cohen before the election.  Barr has proven time and time again that he is utterly corrupt.

OOP Short Takes:
  • Poll out of Florida by of show Biden with a 6 point lead in the state.  In late May, StPetePolls only had Biden with a 1 point lead.  That increase might have been even more substantial than 5 points though as the May poll relied on "registered voters" while the July poll focused on "likely voters," a metric that usually improves Trump's numbers by a few points.
  • Interesting to watch Trump-friendly members of Congress attack Wyoming Congresswoman Liz Cheney for not being sufficiently supportive of Donald Trump.  What ultimately set off the backlash, which will no doubt pass to Trump sycophants in the "conservative" media if it hasn't already, is that Liz Cheney dared to publicly support Dr. Fauci.    Basically, 100% Trump supporters, like Matt Gaetz are attacking Cheney who "only" supports Trump 97% of the time.  Now, by tweet, Donald Trump is joining in the the attack on Cheney.  Supposedly this is an initial skirmish in the war for the soul of the GOP that will take place if Trump loses in November.   Trumpers shooting other Trumpers.  Not sure that is a bad thing. 
  • Meanwhile in the anti-Trump GOP camp, you're seeing a quiet battle taking place between Republican Voters Against Trump and the Lincoln Project.  Very simply, RVAT believes that Trump is the problem and once he is gone the GOP can return to its longstanding conservative principles.  As part of that mission, RVAT shuns attacking Trump's GOP enablers in Congress.  To the Lincoln Project though the enablers are the problem, maybe even a bigger problem than the President. .  The organization aggressively targets Trump enablers in Congress who for 3 1/2 years failed to exercise their independent authority to check the president, inaction that exacerbated Trump's assault on conservative values and democratic norms.  For the Lincoln Project, Trumpism and not just Trump, is the problem. For the record, I completely agree with the Lincoln Project. 
  • It appears that today Indiana will be reporting the highest daily total of new Covid-19 cases since the 949 cases it reported on April 27th.  It seems that with this pandemic, every state eventually gets its time in the barrel with a surge of Covid-19 cases.  I think our time is soon coming.
  • On a related note, Governor Holcomb issued a state-wide mask mandate.  Shortly after the mandate, Attorney General Curtis Hill, who recently lost his renomination bid, issued an advisory opinion that Holcomb did not have the authority to issue the executive order.   A quick review of Hill's reasoning seems to be that the legislature cannot delegate to Holcomb the authority to adopt a mask mandate, that that would require a law passed by the Indiana legislature.  The extent to which a legislature can delegate its legislative authority to the executive is a very gray area of law.  I do not know enough about it to have an opinion on whether Hill is right about the law.  
  • UPDATE:  Holy crap.  Quinnipiac, which does top notch polling, just issued a Florida poll of registered voters showing Biden up 13 points in Florida.  During 2016, Hillary Clinton never had a double figure lead in any Florida poll and, in fact, Trump had the lead in several polls including most of the final ones before the election.

Wednesday, July 22, 2020

"Proactive Arrests" in Portland; New Polls Show Biden Leading in Texas, Arizona and Georgia

Charles Wolf, acting Secretary of the Department of Homeland Security ("acting" because he couldn't get confirmed by the Senate), explained why law enforcement officials from his department have to be in Portland:
The Department, because we don’t have that local law enforcement support, we are having to go out and proactively arrest individuals. And we need to do that because we need to hold them accountable. This idea that they can attack federal property and law enforcement officers and go to the other side of the street and say, “you can’t touch me,” is ridiculous.
"Proactive arrests?"  What?  Didn't they make a movie about this?  Minority Report, I believe is its name.

Wolf, who has no law enforcement or legal background, was also asked about whether the federal agents had "probable cause" to arrest the individuals.  It is clear from his response that he has no clue what "probable cause" means:
This is a very difficult environment to work in. You have 500, 600 violent individuals, violent criminals across the streets that try to inflict harm on your property and law enforcement officers. We do our best to identify who they are using probable cause. What we don’t do is we don’t go into the crowd. We don’t try to go into a violent crowd of 400 people to arrest people.
Writing on the blog, Above the Law, Elizabeth Dye, shreds the legality of what DHS law enforcement officials are doing in Portland:
There is no such thing as a “proactive arrest.” There is no such thing as a “noncustodial arrest” where an individual is transported to another location and detained. There is no such thing as probable cause because a person was standing in a group of several hundred people, five or six of whom are suspected of committing a crime.
Maybe more troubling is Wolf characterizing all the Portland protesters as violent because a few of them are engaging in violent conduct.  Here is what Wolf's DHS's stormtroopers agents did to one Navy veteran:

While Wolf justified the crackdown on the Portland protesters because they were going to commit violent crimes, one of Trump's 2020 Advisory Board Member came up with an even kookier justification - the protesters were Communists!  Appearing on the local radio show Hammer & Nigel (who between them have never had an independent thought in their lives and spend their entire show working off Trump talking points), Steve Rogers, who supposedly has a law enforcement background, justified the crackdown because the Portland protesters were not only violent but they were also Communists!  Not kidding.  Rogers called them "Communists" multiple times.  I thought my radio had somehow transported me back to the red scare era of the 1950s, but it was not the case.  

My entire life the Republican Party has been the party that has defended federalism.   While I am certainly not surprised that President Trump does not understand or care about federalism, I find it shocking how many Republicans are throwing away their support of federalism to defend what President Trump is doing in Portland and is threatening to do in other cities.  Anyone who defends such nonsense should turn in their Republican card.


OOPs short takes:

  • Turns out the reporter who supposedly called White House Press Secretary Kayleigh McEnany a "lying bitch" in response to a followup question, actually said "okay, you don’t want to engage."  This is confirmed by the White House's own transcript of the exchange.  I, however, was never bothered by the slur, because technically it was an accurate description of McEnany.
  • Trump's coronavirus press conference yesterday didn't turn out to be the train wreck I expected.  He mostly stuck to the script.  Of course, Trump told a number of lies about how the federal government is handling the virus, but that's come to be expected.  Trump did manage to "wish the best" to Ghislaine Maxwell, Jeffrey Epstein's former "girlfriend" and alleged co-conspirator on the rape and molestation of of scores of underage girls.  Trump, as did many rich and powerful people, socialized with Epstein and Maxwell over the years.
  • Highly rated pollster Quinnipiac released a poll today showing Biden up 1 point in Texas.  Two other polls show Biden up 4 points in Arizona and Georgia.  All three are states Trump won fairly easily in 2016.   Biden probably does not need any of the three states to win the Electoral College.

Tuesday, July 21, 2020

Why Screening for "Likely Voters" in 2020 Polls is Not that Important, and Perhaps Counterproductive

Confronted with national and swing state polls showing President Trump running well behind challenger, former Vice President Joe Biden, Trump supporters point to the fact many of the polls are faulty because they are not screening for "likely voters."

Polls that screen for likely voters show Trump doing better, albeit still substantially behind nationally and in most swing states.    So, does the Trump campaign have a point about the need for pollsters to
screen for "likely voters?"  No, not really.

The reason pollsters screen for likely voters is that elections often only feature voting by a small percent of the registered voters.  Turnout in mid-term elections tend to be much substantially less than presidential elections.  Off-year elections have even lower turnout.  Indianapolis has off-year municipal elections that sometimes only result in a 20% turnout of registered voters.

In these lower turnout elections, more than half the battle of the pollster is trying to figure out which voters will show up on election day.  To make that determination, pollsters ask a series of questions including how much thought they've given to the election, whether they plan to vote, did they vote in this election four years ago, do they know where to vote, etc.  They respondent then is rated according to his/her answers and a determination is made as to whether that person is a likely voter.

To say determining "likely voters" in lower turnout elections is a difficult task for pollsters is an understatement.

Presidential elections though are a different matter entirely.  Turnout is typically much higher when presidential candidates are on the ballot.  This is especially true in the era of Trump when both the Republican and Democratic electorates are energized.  Heavy turnout by both parties is almost a certainty come this fall.

In presidential elections, especially those in which heavy turnout is expected, likely voter screens can be counterproductive, resulting in the weeding out scores of voters who will undoubtedly be voting.  In such situations, registered voters is the better metric to use than the hit or miss method of determining a much smaller subset via the "likely voter" screen.


OOP's short takes:

  • Roy Den Hallender, the men' rights attorney suspected in the shooting federal judge Esther Salinas' son and husband, had penned a memoir "Stupid Frigging Fool" published online in which he discusses at some length his lifelong poor experiences with women, including his mother to whom he dedicated the book with the line "May she burn in Hell."   Hallender had volunteered in the Trump campaign and filed a RICO action against members of the media for reporting unfavorably and dishonestly on candidate Trump.  The case was dismissed. Hallender had a particular gripe against Judge Salinas, who he derided for "being a lazy and incompetent Latina judge appointed by Obama", because she had supposedly delayed ruling on a lawsuit he had filed to have the all-male military draft ruled unconstitutional.  When he was diagnosed with cancer, Hallender turned the litigation over to other counsel, but continued to bear the grudge of what happened in the last case he was to handle as an attorney.  Hallender committed suicide as law enforcement were closing in.  
  • The Covid-19 press conferences are set to resume today, featuring Prresident Trump!   Except nobody from the Covid-19 task force is scheduled to be at the conference.  In fact, Dr. Fauci apparently was not even told they were starting up again.  Trump's approval on his handling of the virus has been plummeting and the renewed press conferences are an attempt to show President Trump aggressively leading the response to the pandemic.  Unfortunately for Trump staffers, they had to agree to let Trump talk about other, non-virus topics during the press conferences.  What could possibly go wrong?  The press conference is scheduled for 5 pm, expect car crash at about 5:05.
  • My Mary Trump book is scheduled to arrive tomorrow.
  • Why are we Republicans defending what's going on in Portland?  Imagine if President Obama had sent unidentified federal law enforcement officials into a city to seize Tea Party protesters and throw them in unmarked vans to be whisked away for questioning.  I'm pretty sure we conservatives would have a problem with that.  What happened to federalism?  This tribal nonsense deserves to die a painful death on November 3rd.

Saturday, July 18, 2020

Unidentified Federal Law Enforcement Officials Descend on Portland, Throw People Into Unmarked Vans for Questioning

Federal law enforcement officials in masks, with no identification and wearing camouflage, throwing them people into unmarked vans to be whisked away for questioning at some unknown location.  When I first heard the story, I assumed t it had to be some third world country.  Uh, no.  That is what is going on in Portland, Oregon.  Time reports:
Federal law enforcement officers, dressed in camouflage and driving in unmarked vehicles, have been detaining protestors in Portland, Ore., according to local reports and videos shared online. Demonstrations have been ongoing in Portland since the police killing of George Floyd in late May.   
Federal agents have detained and forced individuals into unmarked vans in recent days, two demonstrators in Portland told Oregon Public Broadcasting (OPB) on Thursday. Mark Pettibone, a demonstrator detained on Wednesday, told OPB he was taken to a federal courthouse and later released, but that he was not given any official notice of the arrest.

Officers from federal agencies have been present in Portland since at least July 2, according to the Department of Homeland Security, which has sent units to the city. Law enforcement has also been deployed by the U.S. Marshals Service and other agencies. Per OPB, federal officers in unmarked vehicles have detained protestors since July 14.  
Footage posted online by protestors show others being mistreated in the same way. In one video that has circulated widely online, two federal officers walk up to a demonstrator and put them into an unmarked minivan before driving away. They say nothing to indicate why they’re detaining the protestor.  
In another email referring to the individual in the video posted online, DHS said that agents with U.S. Customs and Border Protection “had information indicating the person in the video was suspected of assaults against federal agents or destruction of federal property.” 
According to DHS, the agents identified themselves and were wearing insignias for CBP during the incident, but that their names were not displayed due to risks of doxxing. 
While it is unquestionable that authorities need to get control of what's happening in Portland, unidentified law enforcement officials can't just snatch people from the streets and throw them into unmarked vans to be hauled away for questioning because they "suspect" a person had committed an  crime.  Apparently at least some of the officers were from the Customs and Border Patrol and from an admittedly cursory examination of their powers does not seem to support their being involved in a law enforcement action in Portland, Oregon.

Friday, July 17, 2020

Is the Republican Party Dying?; Political Analysts See More Competition in Indiana

It is inevitable.  After every decisive election, articles will be written claiming the losing party (Democrat or Republican) is dying and will cease to exist.  Then the losing party adjusts and in the next election, or the one after that, bounces back. 

I have seen this pattern many times during my lifetime, but it's been going on much longer than that.  The current Democratic Party was founded in 1828, the Republican Party in 1854.  So, Democrats and Republicans have been squaring off against each other for 166 years.  There have been a lot of up
and downs for both parties, but both have survived.

Because I am a student of history, I am quick to dismiss claims that a political party is dying because of a bad election.  No longer.  I think it quite possible that the Republican Party that exists in 2020 may not last much longer.

You are starting to see skirmishes break out among Republicans over the future of the party, post-Trump.  Should Trump go down in 2020, taking the Republican Senate with him, you're likely to see those skirmishes break out into a full blown civil war over the future of the GOP. 

Younger people and women are loudly rejecting the Republican Party.  Suburban voters are fleeing in droves.  The white majority the Republican Party has increasingly relied on to win elections is declining as the share of minorities voters has increased.  The GOP has no electoral future if it continues on its current path.

But the Republican Party could just adjust to the changing landscape as it has done for a century and a half, right?  Well, maybe not.   While some observers claim Trumpism, which was never about issues, will die with a defeated Donald Trump, I don't agree.  Even if Trump loses in a landslide, there is a good chance he sticks around to exert his cultish influence over the GOP electorate and its nominees.  But those Republican candidates, tarnished with the stain of Trumpism, won't be able to win general elections, except in the most red states and districts.  The Republican Party will become a regional party, with no coherent ideology or principles, that can win national elections.    That's how political parties end up dying.

As I said on the night of November 8, 2016, the election of Donald Trump will prove to be the best thing that every happened to the Democratic Party.  I expected that Trumpism would lead to a period of Democratic ascendancy which is exactly what has been happening since that night.  But what I did not anticipate was how much damage Trump would do to the Republican Party.  Trumpism may well destroy the GOP completely, leaving it to take its place along other parties that have died out, i.e. the Federalist, Democratic-Republican and Whig Parties.

OOP's Short Takes:

  • This morning the Cook Political Report announced it was adjusting its ratings on 20 house races toward the Democrats.  What is most significant for Hoosiers is that Congressional District 5, formerly held by Republican Susan Brooks, was moved from "likely Republican" to "toss up."  I am more and more bullish on the notion that Democrat Christina Hale is going to win that seat.  Republic Victoria Spartz played the Trump card to get the nomination, but Trump is very unpopular in the more urban/suburban areas of CD 5.  The likely 2020 blue wave is starting to look more like a tsunami that may well be enough to carry Democratic candidates like Hale into office.
  • Speaking of tsunamis, Larry Sabato's Crystal Ball is seeing a more competitive electoral map, downgrading seven "Safe Republican" states to "Lean Republican" status.  Those states are Alaska, Indiana, Kansas, Missouri, Montana, South Carolina, and Utah.  I've seen surprisingly close presidential polls in all the aforementioned states except for Indiana.  But Missouri closely mirrors Indiana in that it is a Republican state in which Trump tends to be more popular than the GOP baseline.  (In 2016, Trump actually ran behind almost all GOP statewide candidates, but Indiana and Missouri were an exception).  Beginning in late May, polls in Missouri had Trump's lead at:  +4, +8, -2, +7.   Indiana, meanwhile, has had two polls since late April which showed Trump's lead at +13, +10.  That makes me suspect Sabato has some non-public polling information showing the race in Indiana tightening.
  • The other day conservative radio host Rush Limbaugh argued that the American public needs just to learn to live with the Covid-19 virus.  He pointed to Donner Party's journals which showed they only once complained about the cold weather when they got stuck in the Rocky Mountains during the winter while trying to take a new shortcut.  What Limbaugh left out was that members of the Donner Party split into factions due to infighting over strategy and eventually turned to cannibalism to survive.  
  • The other day I happened to tune into WIBC's late afternoon radio program hosted by Hammer and Nigel.  H&N had invited the "Chicks on the Right"  They were discussing Covid-19.  It was unanimous that the pandemic was just a Democratic political stunt and would be over once the election was over.  You have to admire Joe Biden though.  He managed to get 140,000 plus Americans to sacrifice their lives as part of his political strategy.  Seriously, can we please get those four idiots off the air?  They make real conservatives look bad.

Wednesday, July 15, 2020

More Disastrous Trump Polls Released Today

Just this afternoon, Quinnipiac released a poll showing Donald Trump trailing Joe Biden by 15 points nationally, 52-37.  That is nearly a doubling of the lead Trump enjoyed in a Quinnipiac poll conducted just last month.  An NBC/Wall Street Journal released this afternoon, shows Biden up 11 points nationally.  It was a 7 point lead last month.

Of course, we don't have a national election for President.  We have 50 different (51 if you count DC) elections for President.  Thus, polls in swing states are much more important than national polls.

But an examination of the polling in the swing states shows trouble there as well.  Monmouth University (an A+ rated pollster) published a poll today showing Biden up 13 points in the Keystone State among registered voters, 7 to 10 points if you screen for likely voters.  A Change Research poll, also released today, has Biden up 8 points in Pennsylvania among likely voters, and up by 7 in Florida, and 6 in Arizona, Michigan and Wisconsin.

Trump is so far behind in Michigan and Pennsylvania, the Trump campaign might be inclined to write the states off.  But then there would be virtually no place else to go on the electoral map..  Only Wisconsin would be left among the triumvirate of swing states that put Trump over the top in 2016.  Trump loses Pennsylvania and Michigan, he has to win Wisconsin and every other state he won in 2016.  The problem is he's running behind in Wisconsin, Arizona, Florida, Ohio, North Carolina and is running even in Iowa, Texas and Georgia.  Those are all states Trump won in 2016.  There is no place on the map where the Trump campaign can pick up a state it lost in 2016.

I do thing there is a possibility that come September, faced with a landslide loss, Trump just walks away from the race.  The problem is if Trump is not re-elected in 2020, there is a real chance he is prosecuted in 2021.

Monday, July 13, 2020

Why Biden's Polling Lead is Different From Hillary Clinton's

Trump supporters are always quick to dismiss polls.  They claim the 2016 polls were wrong, that the polls undercount Trump voters, who do not want to admit to pollsters who they are voting for.  These are the so-called "Shy Trump" voters.

The whole argument is a bunch of bunk.

First, the polls in 2016 were not way off as is claimed.  Nationally, the RealClearPolitics polling average on Election Day showed Hillary Clinton would win the popular vote by 3.3%.  She won by 2.1%.  That's not off much and certainly does not reflect much of a "shy Trump voter" effect.

Of course, presidential elections are decided on a state-by-state basis.  Looking at the RCP polling averages, I am only aware of three states where the candidate who won on Election Day did not have a lead in the RCP polling average in that particular state - Michigan, Pennsylvania and Wisconsin.    In Wisconsin, Trump won by .7% even though Hillary Clinton was leading by 6.5% in the RCP polling average in that state.  Pennsylvania 2.1

State                  Final RCP Polling Avg         Election Day Result
Wisconsin           Clinton by 6.5%                      Trump won by .7%
Pennsylvania       Clinton by 2.1%                      Trump won by .7%
Michigan             Clinton by 3.6%                      Trump won by .3%

So, the pollsters picked the winners in 47 of 50 states and on the three states where they identified the wrong winner, the result was within the margin of error for those polls.  That's not a bad record.  Nonetheless, those three states, won by Trump by a total of less than 78,000 voters, triggered a shift in the Electoral College in his favor.  Trump essentially drew to an inside straight in 2016.  He got incredibly lucky.

But even if the 2016 polls could be considered to have picked the "wrong" winner in 2016, there are several reasons to doubt they would be "wrong" in 2020.

ELECTION IS A REFERENDUM ON TRUMP:  when a President seeks re-election, the contest is almost always a referendum on that incumbent President. Trump is never been popular, and is near the bottom in his approval rating.

UNDECIDED VOTERS TEND TO FAVOR INCUMBENT:  undecided voters in 2016 broke significantly or Trump.  But when there is an incumbent, undecided voters usually break for the challenger.  Although there is a lot fewer undecided voters in 2020 than 2016, they're likely to break for Biden. That's why Trump needs to be leading in the key battleground states, not merely running even...which he's not even doing.

DOUBLE HATERS FAVOR BIDEN:  In 2016, there was a number of voters who disliked Trump and Hillary Clinton, i.e Double Haters  Exit polls show they broke by 17 points in favor of Trump.  Now the polling shows the Double Haters favoring Biden by 29 points.  But his only political game plan seems to demonize his opponent.  That will not get the job done because if the voters dislike Trump and dislike Biden, a strong majority is going to vote for Biden.  What Trump really needs to do is to somehow make himself more likeable to the public and appear more competent and up to the job.  

BIDEN'S LEAD IS BIGGER THAN HILLARY'S:  While Hillary Clinton at times had pretty sizeable national poll leads, Clinton trailed in a number of battleground states throughout the campaign.  Biden though leads in all the battleground states, and is running even with Trump in several other states, such as Texas, Iowa, Ohio, and Georgia, which were previously chalked up as easy Trump wins.  Even solidly Republican states, such as Montana and Missouri, are single digit races.

COVID-19:  As much as Trump would like to wish the virus away, it isn't working.  The most recent poll faults him by a 2-1 margin for his poor handling of the pandemic.  When we go to vote in November, there may be as many as 200,000 Americans dead from Covid-19.  That's not going to be a good thing for the incubment.

There are a number of OTHER things I could got into.  Trump is losing his money advantage as Biden has Democrat has outraised him the last two months.   Plus, Trump seems to have no plans for a second term, and his only play is demonizing Biden.  But the "Sleepy Joe," "Dementia Joe" nicknames have not borne fruit, nor has the attempt to link Biden to China.  Nonetheless, as I've said previously, demonizing Biden won't win the Election.  Trump needs to make people like him, make people think he is a competent and fit President.  That could happen, but it's not likely.

Believe the polls.  Trump may not lose the election on November 3rd, but he is certainly losing as of July 13, 2020.


Some short OOP's:

TEXAS:   Yet more polling out of Texas indicating the Lone Star State needs to be elevated to the status of "swing state."   Texas has 38 electoral votes and will have even more after the 2020 census.  It's hard to see how Republicans win the White House without Texas.  Unlike Florida and Ohio, once Texas falls to the Democrats, it may be some time before Republicans win it back.

INDIANA ATTORNEY GENERAL'S RACE:   Former Secretary of State and former congressman Todd Rokita narrowly beat out Indiana Attorney General Curtis Hill for the AG nomination at the GOP's virtual convention..   I have mixed views on the development.  I soured on Hill prior to the 2016 GOP convention, long before the sexual misconduct allegations.  Hill's ridiculous prosecution of a felony murder case involving teenage burglars (one of which was shot by the homeowner,  his view that we need to more aggressively go after marijuana offenses, and his using his position to try to intimidate a reporter who was writing a story Hill did not like, was a bridge too far for me.  Nevertheless, I don't have warm feelings for Rokita either.  His pledge to be a Trump sycophant in his failed attempt to win the 2018 Senate race, was a huge turnoff.   I think the AG's race in Indiana is likely to be close.  I give Rokita maybe a 65% chance of winning, which really isn't that high.  By comparison, I would say Governor Holcomb is at about 90% at this point.

REDISTRICTING:   For the last ten years or more, the Democrats have been vocal supporters of redistricting reform, including taking the process away from the politicians.  The Democrats though captured control of a number of legislative chambers in 2018 and ousted a number of governorships held by Republicans.  Now, in 2020, Democrats are on the verge of taking over several more chambers, including possibly in Arizona, Texas, North Carolina and Michigan.  Look for Democrats to change their minds on redistricting reform as they start gaining more and more control of state governments.

Saturday, July 11, 2020

Need to Amend the Constitution to Limit Presidential Pardon Power, Part 2

In June of 2018, I wrote a column urging that we amend the Constitution to limit the pardon power of the President.  Today, because of President Trump's Friday night commutation of the sentence of political dirty trickster Roger Stone, I return to that subject.

The United States Constitution grants the President the power to "grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment."
Roger Stone

The commutation given to Stone is considered a "reprieve" from punishment via a commutation of his sentence.  Stone had been convicted of seven felonies, including obstruction of justice, making false statements and witness tampering, i.e. threatening a witness to try to keep him from testifying to Congress.  For these crimes he committed to hide his connection to WikiLeaks and protect President Trump, Stone was sentenced to over three years in prison.  Stone was about to start his sentence when he received the presidential commutation.

This news came only two days after Facebook announced that it had closed Roger Stone's Instagram account and had taken down more than 100 fake Facebook pages linked to Stone and Proud Boys, a neo-fascist group that promotes political violence.  The Proud Boys were big supporters of Stone during his criminal prosecution, attending court hearings and supporting his family during the ordeal.  Stone has also expressed support for Qanon, the kooky conspiracy group that believes there is a cabal of Satan-worshipping pedophiles running government, which President Trump was elected to stop.

In my 2018 column, I argued that the Founding Fathers never intended the pardon power to be as sweeping as it has come to be.  Now I provide more details.  As drafted, the Constitution in 1787  only identified three federal crimes - piracy, counterfeiting, and treason. While the architects of the Constitution no doubt expected Congress to add federal laws beyond those three, due to the nature of federalism they certainly thought the enactment of criminal law would remain almost completely the domain of state legislatures.   Indeed the Crimes Act of 1790, delineated only 17 federal crimes.   But by 2001, according to an article written by former Attorney General Edwin Meese, Congress had created more than 4,500 federal crimes while regulations issued by the executive branch added tens of thousands more.

In short, while the President's pardon power remain as constituted in 1787, that power has dramatically increased through the back door by expanding the federal criminal code.

In a piece published by LawFare in February of this year, Bob Bauer and Jack Goldsmith argue that a constitutional amendment is not needed to limit the President's parden power, that Congress can pass laws restricting that power:
Trump is not alone in his sweeping view of the pardon power. Decades ago, the Department of Justice advised Congress that “[i]n the exercise of the pardoning power, the president is amenable only to the dictates of his own conscience, unhampered and uncontrolled by any person or branch of government.” Woodrow Wilson’s attorney general framed the power in similarly grandiose terms, as “not subject to the control or supervision of anyone.” The courts have seemingly endorsed these constitutional judgments, referring to the pardon power as “unlimited” and deeming Congress unable in any way to “limit the effect of [a] pardon, nor exclude from its exercise any class of offenders.” 
So, it appears, lawmakers unhappy with grants of clemency are left to voice dissatisfaction and to press the president to explain....   But, barring a constitutional amendment, many people appear to believe that Congress can do nothing more to regulate the president’s “absolute” pardon power.   
We disagree. As we discuss in detail in a forthcoming book on institutional reforms of the presidency, there are limits Congress may and should impose on at least some exercises of the pardon power. And by prescribing those limits, the legislature can prevent or deter the most egregious abuses, while encouraging future presidents to adhere more closely to norms of process and restraint.   
Begin with the constitutional text, which grants presidents the “Power to grant reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” The power covers only federal offenses and excludes the ability to pardon away an impeachment. But these are not the only limits. 
A pardon or commutation may be “absolute” for the beneficiary. But it would not in any way afford the president, as the grantor, immunity from commission of a crime in connection with granting a pardon, nor would it cover any such separate crime committed by the grantee. Congress could, for example, make it a crime for the president and the grantee to engage in a bribery scheme in which the grantee makes a personal payment or campaign contribution as part of an explicit quid pro quo arrangement. The president’s subsequent pardon or commutation would remain fully in effect for the offense pardoned, in accordance with the Pardon Clause. But the law would apply to the independent criminal acts committed by the president and the grantee in the course of reaching an illegal agreement about the terms on which a pardon would be granted. Congress can similarly criminalize the use of the pardon to undermine a judicial proceeding, which the president might do by offering it as a means of inducing false testimony. 
It is unclear whether the current obstruction of justice and anti-bribery statutes already criminalize these and related presidential acts. To resolve any doubts, Congress should make it an express crime for a president to offer to sell, or to sell, a pardon for personal financial benefit or a campaign contribution, or for the benefit of an immediate family member—or to use a pardon, or offer one, in a corrupt scheme to obstruct a judicial proceeding. 
Congress should also make clear that a self-pardon is not allowed and cannot be the basis for immunity from federal criminal investigation or prosecution....
Bauer is a former White House Counsel for President Obama and a professor at the New York University School of Law.  Goldsmith is a professor at the Harvard Law School.  Given their erudite legal credentials, I hesitate to question their argument.   But I find their argument baffling.  Even if Congress criminalized certain acts engaged in by a recipient in order to obtain a pardon for a crime, or for the President to issue such a pardon, what stops a President from issuing yet another pardon to cover the new criminal act relating to getting the pardon?

As far as that Congress "should...make [it] clear that a self-pardon and cannot be the basis for immunity from federal criminal investigation or prosecution," are Bauer and Goldsmith suggesting that Congress can, by statute, define a constitutional provision and thus tie a court's hands on its interpretation of that provision?  It is the job of courts to define constitutional provisions and determine their scope.  Congress' views on the meaning of constitutional provisions isn't worth a bucket of warm spit.  For an example, review the history of War Powers Act which Congress passed in a failed attempt to more narrowly definite the President's constitutional authority as Commander-in-Chief.

The commutation of Stone's sentence is merely the tip of the iceberg.  More pardons and commutations are coming.  Should he lose re-election, the pace of Trump's pardoning will increase and no doubt extend to his family and friends in the world of business and law.  Expect those pardons to be open ended and often precede those individuals even being charged with a crime.  In 1866, the United States Supreme Court ruled in Ex parte Garland that pardon powers can be exercised at any point after a criminal act has occurred, regardless of whether charges have been filed.

There is one thing that saves us from the pardon power being a vehicle to complete abuse of power by the President - federalism.  Many crimes still fall under state jurisdiction, and the President's power of pardon does not extend to state prosecutions.