Month: November 2020

Bad Faith

Just prior to Election Day a friend observed that we’re going to need new laws and new structures to prevent the corruption, self-dealing, and looting of the public treasury that have been the hallmarks of the Trump administration. “We can’t have ‘acting this’ and ‘acting that,’” my friend said. “We need to ensure accountability.” I told him that the laws already exist, and have for some time: but that enforcement is up to the Congress and the courts. With the Senate operating as a wholly-owned subsidiary of Trump, Inc.; and with a significant fraction of the Federal bench occupied by Trump appointees, the likelihood of anything actually being done is vanishingly small.

The problem isn’t that laws and structures don’t exist. The guardrails haven’t done much guarding these last four years, proving to be not such solid railings or firm barriers; rather, it turns out they are just suggestions, only as strong as public outrage and the other branches’ willingness and ability to enforce standards of behavior that have served the Republic well for two-hundred and forty-four years. I mention both “willingness” and “ability” because — as it turns out — the current administration has decided that the rules that have applied to every predecessor do not apply here. They have defied both congressional demands and court orders with alacrity, zealously undermining the institutions of democratic self-government while loudly claiming to speak “for the people.”

Well, the people have spoken and Donald Trump has been fired. He claims — falsely, as always — to have won with a “record” number of votes; and yes, his tally was indeed record-setting: more than ever for a second-place candidate. And let’s be absolutely clear: Biden’s victory was decisive, a margin of six million votes — nearly four percent. In an age when many elections are won and lost on razor-thin fractions, four percent is a landslide.

But the presidential falsehoods and GOP bad faith continue unabated: Dozens of failed lawsuits in multiple jurisdictions and attempts to strong-arm state elections boards and legislatures in Republican-led states will not change the outcome but they will undermine public confidence in elections, to the point where — as comedian Sarah Cooper tweeted recently — voters are asking courts to ignore the will of the voters. Reduced to its starkest terms: elections are legitimate if “we” win, but fraudulent if “they” win.

Of course it’s a bad faith argument. The essence of democracy — of voting — is that the outcome isn’t going to please everyone, all the time. Sometimes you win; sometimes you lose. That’s how the system works (when it works). Or as Christopher Krebs — fired last week for bucking Trump’s message that the election was fraught with fraud — noted last year, the purpose of elections is to convince the loser that he lost. This isn’t how we normally think about voting, but it’s dead on. Trump knows he lost; the people around him know he lost; Republican officials at all levels know that he lost. That they continue to sow doubt and stir up mistrust; that they say either nothing at all, or demur quaintly about “rights” to pursue false claims in court, says far more about them than it does about the actual results. They would cling to power by any means possible, the people be damned.

In 1982 the Republican candidate for New York’s 20th Congressional District (Upper West Side) lost overwhelmingly, 85%-15%. Of his defeat he remarked: “The people have spoken. The bastards.” If only today’s GOP could accept electoral outcomes with as much grace and dignity.

Cognitive Dissonance (GOP Edition)

Donald Trump refuses to concede defeat and continues to contest the election results. Apparently the same ballots that kept his Republican enablers in control of the Senate — for now — and gained them (so far) six seats in the House — these same ballots were somehow fraudulent, but only on the top line, for the Presidential race. As Scooby Doo would say: Huh? If you are alleging ballot irregularities, fine. But a few things you should keep in mind:

  1. The burden of proof (and the bill for any recount) is on you.
  2. “Upon information and belief” in your complaint won’t cut it: you need actual evidence.
  3. Invalidating any individual vote means invalidating the entire ballot, including down-ballot races (yours).
  4. Hundreds of thousands of spoiled ballots, across multiple states, just aren’t there.  Ever.

The idea of “stealing” or “rigging” an election in this way is beyond risible. It defies both common sense and the entirety of human experience. Trump and his allies are pinning their hopes on proving a conspiracy — a concerted, coordinated effort — among many thousands of people. As this On the Media segment demonstrates, it’s an impossibility.

It all would be the basis for a good laugh if it weren’t so serious. Ballot fraud is extremely rare, impossible to carry off successfully (see above), and almost always detected. Nearly every such failed attempt has been the work of Republicans, most notoriously in North Carolina’s 9th Congressional District. (One wonders if they allege fraud because that’s what they’d do?) The accusations in this cycle are particularly galling when senior Republicans at every level speak piously of Trump’s precious rights to contest an election and demand a recount without a peep about the malign intent to undermine faith in the very system that sent them to office. If the integrity of our elections is in question, doesn’t that also undermine the legitimacy of every elected GOP official? In the latest twist, a postal worker in Pennsylvania has recanted his claim that ballots were backdated, a claim that has been relied upon by Lindsay Graham and the Trump campaign as evidence of fraud. Republican donors have raised over $130,000 on behalf of the USPS employee — $130,000 being, apparently, the going rate (see: Daniels, Stormy). According to the Erie postmaster this is not this postman’s first job-related offense.

Small-d democrats ignore this doublespeak at their peril. Sure, any candidate has a legal right to challenge election results; but that right — like all rights — also carries certain obligations: challenges are to be made in good faith and must be supported by actual facts. The claims here have been dismissed by every court that has heard them, because no actual facts are even alleged. Per The Washington Post:

By now, it’s well-established that most of the arguments put forward by President Trump’s reelection campaign in its challenge of the results of the 2020 election are baseless and highly speculative. Even Trump allies, as The Washington Post reported late Tuesday, acknowledge the apparent futility of the effort. Others have reasoned that there’s no harm in going through the motions, with one anonymous GOP official asking, “What’s the downside for humoring him” for a little while?

But as scenes in courtrooms nationwide in recent days have shown, there is indeed a downside for those tasked with pursuing these claims. Repeatedly now, they have been rebuked by judges for how thin their arguments have been.

The most famous scene came in Pennsylvania, where a Trump lawyer strained to avoid acknowledging that their people were, in fact, allowed to observe the vote-counting process in Philadelphia:

At the city’s federal courthouse on Thursday evening, attorneys for Trump asked a judge to issue an emergency order to stop the count, alleging that all Republican observers had been barred.

Under sharp questioning from Judge Paul S. Diamond, however, they conceded that Trump in fact had “a nonzero number of people in the room,” leaving Diamond audibly exasperated.

“I’m sorry, then what’s your problem?” asked Diamond, who was appointed to the federal bench by President George W. Bush.

The downside of humoring him should be self-evident: further public humiliation of the United States, if the last four years were not enough. It even more nakedly exposes Trump for what he is, a spoiled and unpredictable man-baby with his hands on the nuclear codes. Moreover it exposes the gaping flaws in our vaunted system of checks and balances, which are more fragile than anyone supposed. It turns out they are utterly dependent on all actors behaving in good faith.

Attorneys have an obligation to serve the law and the court, not just their clients. Federal Rule of Civil Procedure 11(b) states:

By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;

(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;

(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and

(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

Trump and GOP attorneys find safe harbor in subsection (4) — “information and belief” — and ignore the more pertinent subsections (1) and (2). These cases are warrantless and frivolous, in violation of (2); and they are being brought — or so it appears — merely to delay the timely certification of votes and undermine public confidence in the electoral process. By any fair reading such motivation violates (1).

Under Rule 11(c) a court may sanction the attorney. law firm, or party that violates Rule 11(b). Perhaps it’s time more attorneys defending these frivolous and capricious suits filed more Rule 11(c) motions. It wouldn’t be pretty; but it might put a stop to the wasteful abuse of process. Republicans are forever running on platforms to reel in what they see as abuses of the courts; but when elections don’t go their way they are the snowflakes at the courthouse door. Another term for cognitive dissonance might be rank hypocrisy.

Hysteria

A friend writes that in her deep-red part of the country yet another conspiracy theory is taking root: The Biden-as-Trojan-horse gambit, the Far Left’s way of sneaking Kamala Harris into the Oval Office. In this fervid fever fantasy, a frail Biden will not fill out much of his term and Harris is a progressive darling who will enact Medicare for All, raise the minimum wage, and destroy the American Way Of Life by implementing the Green New Deal.

Hearing these fears I was at first dismissive: Harris is neither Bernie Sanders nor Elizabeth Warren, nor is she Alexandra Ocasio-Cortez, Ayanna Pressley, or Ilhan Omar. And while I personally favor a more progressive agenda, I also recognize that politics is the art of the possible (see here and here): it does no good, and in the end considerable harm (in lost time, lost energy, and lost opportunity for compromise), to advocate — for example — universal government health insurance if the proposal will be met by unreasoned and unrestrained emotional resistance. “Medicare for all” isn’t socialism any more than automobile insurance or monthly condominium maintenance fees. It isn’t a terrible prospect and would likely save considerable lives and dollars. Opponents have been unable to articulate any real and substantive objection, ranting instead about keeping Government away from the doctor-patient relationship. (They seem to have no problem with insurance companies coming between you and your doctor, but that’s a discussion for another day.)

None of this analysis will help my friend convince her friends and neighbors that their fears are irrational and overwrought. Paraphrasing Jonathan Swift, you can’t reason a man out of a position he didn’t reason himself into. Or, as the Federalist congressman Fisher Ames, of Massachusetts, characterized such strongly held opinions:

They will not yield to argument; for, as they were not reasoned up, they cannot be reasoned down. They are higher than a Chinese wall in truth’s way, and built of materials that are indestructible.

With all Trump’s palaver and frothing at the mouth about impenetrable walls, Fisher’s turn of phrase seems particularly apt today. Since 1980 the GOP has excelled at convincing people to vote against their own self-interest, often by screaming, “Socialism!” Democrats would do well to better understand the emotional buttons the GOP has mastered.

And Republicans: If your best path to electoral victory is through voter suppression, what does that say about your policies? This segment from NPR’s On the Media is as chilling as it is eye opening. Of course every “legal” ballot should be counted.  We should all — all — be worried about a political party that defines “legal” as “for us” and “illegal” as “for them.”  If you doubt that characterization — which I admit sounds outlandish — take a look at the situation in Georgia, whose two sitting United States senators are calling for the resignation of the Secretary of State (whose job includes election oversight). Why? Because this fellow Republican didn’t deliver the election to them. Instead, he did his job and counted the votes.

Fatigue (III)

It was a few months ago that Keegan-Michael Key, appearing on “A Late Show with Stephen Colbert,” said he was exhausted. It was early June, immediately after the death of George Floyd at the hands of Minneapolis police officers, and he was expressing frustration with the racial imbalances — what we have come to understand, since then, as systemic racism — and seemingly never-ending inequality in this, the Land of the Free, where it is self-evident that all men are created equal. Aren’t they?

We are all exhausted: By the unrest and inequality; by the ineptitude and incompetence; by the needlessly high death count; by the lies; by the scandals; by the grift and self-dealing. We are exhausted, simply exhausted, to the point where we are too fatigued to lift a finger let alone raise our voices in anger and cry out together, as one, “Enough!” But the truth is that fatigue is not simply a by-product of the never-ending insults to our national integrity; nor are we exhausted only because we lack the energy, at the end of each long day, to push back against a government and executive appointees who will help themselves but not the people they work for and serve. Corrupt officialdom gives “self service” a whole new meaning.)

As we have seen with the child-separation policy, where the cruelty is the point: The exhaustion and fatigue are the point. Benumb us with your outrages, your corruption, your inhumanity, your incompetence, your sheer stupidity, and we will lack the energy to rise up and strike back. We simply don’t know where to begin: With emoluments? Children deliberately orphaned? Corrupt cabinet secretaries? Incompetent senior advisers? The executive branch of our government has become a criminal enterprise, eagerly aided and abetted by a senate majority that clings to power for its own sake and not for what it can do to improve constituents’ lives. The entire theory and purpose of our representative government has been turned upside down and inside out.

Despite best efforts to convince us otherwise, we are not powerless. We are not voiceless. We are not insignificant. E pluribus unum isn’t just a fancy phrase on our coins. Out of many, one; in unity there is strength. A single vote is an inaudible  whisper, but 250 million together is a category 5 hurricane that cannot be ignored. We don’t have to agree on everything — and we shouldn’t. We won’t always agree on the meaning of the First Amendment, nor of the Second, nor of the Fifth; we won’t always agree about gun policy, welfare policy, education policy, or foreign policy, but we must be able and willing to discuss them, honestly and openly, without resort to name-calling and demonization. We all want a stronger, better, more equal United States. Our ideas about how to achieve those goals differ. We have to re-learn how to talk to each other, and how to compromise.

But despite our differences we should, at a minimum, be able to agree that deliberate cruelty is wrong; that foreign interference in an election is an affront to voters of every political persuasion; that bribery is a crime no matter what the circumstances or who the actors. We should be able to agree that health care and education are rights, not privileges, and that they should be guaranteed by a government for the people. And we should be able to agree that if government of the people ceases to be both by the people and, most of all, for the people, then it is no longer legitimate and must be replaced.

This Tuesday, vote. Vote like your life and your liberty depend on it — because they do. Vote to restore government by and for the people. Vote for humanity and basic decency. Vote to end the madness.