May 2022 – Page 8 – Lone Candle

Here Is Why a Federal Judge Says Trump Probably Committed Felonies When He Tried to Overturn Biden’s Election

Posted on May 9, 2022 by Lone Candle

“Donald Trump and one of his legal advisers, former Chapman University law professor John Eastman, probably committed federal felonies when they conspired to reverse the outcome of the 2020 presidential election by pressuring then–Vice President Mike Pence to block or delay congressional ratification of Joe Biden’s victory. U.S. District Judge David O. Carter concluded it was “more likely than not” that the scheme violated 18 USC 1512, which prohibits obstruction of “any official proceeding,” and 18 USC 371, which criminalizes conspiracies to “defraud the United States.”
Carter made that determination while adjudicating a dispute over emails sought by the House select committee investigating the January 6, 2021, riot at the U.S. Capitol by Trump supporters who accepted his stolen-election fantasy and were angry at Pence for refusing to go along with Eastman’s plan. While the practical impact of Carter’s conclusion is limited to just one disputed document, his analysis amounts to an indictment of conduct that was not just dishonest and reckless but arguably criminal.

“The illegality of the plan was obvious,” Carter writes. “Our nation was founded on the peaceful transition of power, epitomized by George Washington laying down his sword to make way for democratic elections. Ignoring this history, President Trump vigorously campaigned for the Vice President to single-handedly determine the results of the 2020 election. As Vice President Pence stated, ‘no Vice President in American history has ever asserted such authority.’ Every American—and certainly the President of the United States—knows that in a democracy, leaders are elected, not installed….President Trump knowingly tried to subvert this fundamental principle.”

Eastman argued that 111 of the documents sought by the January 6 committee’s subpoena were protected either by attorney-client privilege, which applies to confidential legal advice, or by the “work product” doctrine, which applies to material prepared in anticipation of litigation. The select committee argued that the disputed emails were not protected, invoking the “crime-fraud exception,” which applies to legal advice “in furtherance of” a crime.

Carter concluded that 13 documents qualified as work product and that the crime-fraud exception applied to just one: a memo prepared for Trump attorney Rudy Giuliani recommending that Pence “reject electors from contested states on January 6.” Carter says that memo “may have been the first time members of President Trump’s team transformed a legal interpretation of the Electoral Count Act into a day-by-day plan of action.”

As Carter notes, that plan of action was blatantly illegal. In conversations with Greg Jacob, Pence’s counsel, Eastman conceded that the plan violated the Electoral Count Act in several ways. And while Eastman questioned the constitutionality of that law, Carter says, the proper way to resolve those claims would have been to raise them in court rather than unilaterally choosing to ignore the statute.

Eastman likewise acknowledged that it was “100 percent consistent historical practice since the time of the Founding” that the vice president does not have the legal power to do what Eastman and Trump wanted him to do. Eastman also admitted that it was likely the Supreme Court would unanimously agree.

On January 3, 2021, Eastman nevertheless wrote a six-page memo calling for “BOLD” action by Pence to stop Biden from taking office. “The stakes could not be higher,” he wrote. “This Election was Stolen by a strategic Democrat plan to systematically flout existing election laws for partisan advantage; we’re no longer playing by Queensbury Rules.”

The next day, Eastman, at Trump’s behest, pushed his plan in a meeting with Pence, Jacob, and Marc Short, the vice president’s chief of staff. “During that meeting,” Carter notes, “Vice President Pence consistently held that he did not possess the authority to carry out Dr. Eastman’s proposal.” Eastman met again with Jacob and Short on January 5, saying, “I’m here asking you to reject the electors.” Most of that meeting was consumed by an argument in which Jacob disputed the legal merits of Eastman’s memo.

“Despite receiving pushback,” Carter says, “President Trump and Dr. Eastman continued to urge Vice President Pence to carry out the plan.” At 1 a.m. on January 6, Trump tweeted that “if Vice President @Mike_Pence comes through for us, we will win the Presidency,” averring that “Mike can send it back!” Seven hours later, another Trump tweet insisted that “states want to correct their votes,” saying “all Mike Pence has to do is send them back to the States, AND WE WIN.” He urged Pence to “do it,” because “this is a time for extreme courage!”

Trump delivered the same message in a phone call to Pence around 11:20 a.m. that day. According to Pence’s national security adviser, who was present during that conversation, Trump castigated the vice president as “not tough enough to make the call.” Trump and Eastman reprised the same theme during their speeches at the “Stop the Steal” rally that preceded the Capitol riot. Trump closed his speech by urging his followers to march on the Capitol in the hope of inspiring “the kind of pride and boldness” that “weak” Republicans like Pence needed “to take back our country.”

Around noon, Pence publicly rejected Trump and Eastman’s appeals, saying, “It is my considered judgment that my oath to support and defend the Constitution constrains me from claiming unilateral authority to determine which electoral votes should be counted and which should not.” After the riot started, Trump condemned Pence on Twitter: “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!”

In an email to Eastman while Trump’s enraged supporters were storming the Capitol, Jacob noted that the rioters “believed with all their hearts the theory they were sold about the powers that could legitimately be exercised at the Capitol on this day,” and “thanks to your bullshit, we are now under siege.” Eastman, who was still trying to change Pence’s mind, took a different view: “The ‘siege’ is because YOU and your boss did not do what was necessary to allow this to be aired in a public way so the American people can see for themselves what happened.”

A conviction for obstructing or attempting to obstruct an official proceeding requires proving that the defendant acted “corruptly.” According to 9th Circuit precedent, that element does not require “consciousness of wrongdoing.” But in this case, Carter says, Trump “likely knew that the plan to disrupt the electoral count was wrongful.””

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“Carter’s conclusions do not necessarily mean that Trump or Eastman could be successfully prosecuted for either of these crimes. The preponderance-of-the-evidence standard for applying the crime-fraud exception is much less demanding than the proof beyond a reasonable doubt required for a criminal conviction. So even if the January 6 committee ends up recommending criminal charges, the Justice Department might sensibly decline to pursue them. But Carter’s ruling, which calls Eastman’s plan “a coup in search of a legal theory,” reminds us of how outrageous and unprecedented Trump’s reaction to his electoral defeat was.”

Stop calling them “accidents”

Posted on May 9, 2022 by Lone Candle

“In the new book There Are No Accidents, author Jessie Singer argues that basically everything we consider to be an “accident” — be it car accidents or fatal fires or workplace injuries — are in fact not accidents at all. Humans, Singer writes, make mistakes all the time, but it’s the dangerous conditions in our built environments that result in fatal consequences. Larger systemic forces, shaped by corporations and governments, intersect to create vulnerabilities that we don’t all share equally. Anticipating and reducing those opportunities for human error is the key to preventing needless death.”

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“When we talk about accidental death, what we’re talking about is unintended, injury-related death, not violence and not disease. There is a huge swath of ways that people die, from choking, to falls, to drowning, to traffic crashes, to fires, to poisoning, to drug overdoses. It is a massive category that includes much more obscure and unlikely ways to die, like freezing to death or starving to death, which of course still do happen.
These are all considered accidents. But there are racialized and economic differences in some accidental deaths — they’re not universal. Indigenous people are more than twice as likely as white people to be killed by a car crossing the street, and Black people are more than twice as likely to die in an accidental house fire than white people. There’s quite a bit of conditional exposure in whether or not a house fire is deadly, whether or not a traffic crash is deadly. It has to do with different layers of exposure, and that layered causality is really important.

If you’re driving an old car, you’re more likely to die in a traffic crash. If someone is driving a much bigger car than you or if you live in a low-income neighborhood where they’re not repairing the roads, you’re also more likely to die. And if you’re in a scenario where all three of those factors are interacting and maybe there are other factors too, like your local hospital recently closed, which means you’re farther away from emergency medical services — all of these layers contribute to whether or not we survive our mistakes. Certain people have less opportunities to survive their mistakes.”

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“We should also be advocating on the federal level to rebuild the social safety net so people don’t have to make bad decisions. Pay people money to protect themselves, to drive a safer car, to not take the most dangerous job or live in the least-safe place. There’s also so much you can do locally. There are a million ways to prevent accidental death. In your neighborhood, you can advocate for traffic calming and public transit expansions, because if you don’t have to drive a car, you are much safer. If you’re able to take a bus or a train, that makes you more likely to survive your trip from point A to point B.

You can advocate for safe injection sites, and the free distribution of Naloxone and syringes. Simply making them accessible without stigma will not only prevent accidental overdose, but will prevent the accidental transmission of diseases. You can fight for in-your-home and in-your-office ADA accessibility, like ramps and grab bars, so an accidental fall is less likely to end in death.

This even extends to much less-common causes of accidental death, like fighting for fire safety requirements like sprinklers and self-closing doors in apartment buildings in the city you live in. It means that when someone makes the mistake of lighting something on fire, it’s less likely to kill people. As long as we can stop focusing on the last person who made a mistake, as long as we can accept that mistakes are inevitable but premature death is not, we can do so much to protect each other.”

Are sanctions against Russia working?

Posted on May 9, 2022 by Lone Candle

“The United States and its allies imposed unprecedented economic sanctions on Russia in the wake of its full-scale invasion of Ukraine. The swiftness and intensity of the penalties crashed the ruble, forced the Russian stock market to close, and sent Russians to line up at ATMs to withdraw dollars from their bank accounts.

The Russian economy was in free fall. Until it wasn’t, exactly.

The country’s central bank responded by sharply hiking interest rates to 20 percent and imposing strict capital controls. Those interventions, along with Russia’s still-intact ability to sell its oil and gas abroad, helped create a buffer against the economic chaos after the initial sanctions shock. The measures were “straight out of the country’s economic crisis playbook,” said Adam Smith, a partner at Gibson, Dunn & Crutcher, who worked on sanctions during the Obama administration.

The economic crisis playbook did its job, and calmed the immediate crisis. The ruble stabilized. That allowed Russia to declare victory over the sanctions onslaught. “The strategy of the economic blitz has failed,” Russian President Vladimir Putin said in April.

At least, that is what Russia would like to claim. Russia’s efforts to shore up its currency mask the profound economic disruptions and transformations that sanctions are unleashing within Russia right now. The West’s sanctions are isolating Russia, cutting it off from key imports that it needs for commercial goods and its own manufacturing to make its economy work. That means high-tech imports like microchips, to develop advanced weaponry. But it also means buttons for shirts.

Right now, there is “this false sense of stability,” said Maria Shagina, a visiting fellow at the Finnish Institute of International Affairs.

Russia is facing a deep recession, one the Bank of Russia says will be “of a transformational, structural nature.” The Finance Ministry has predicted the Russian GDP will shrink by about 8.8 percent in 2022. Inflation is expected to clock in as high as 23 percent this year. Russia is looking at a looming debt default. All of this will mean hardship for ordinary Russians, who are already seeing their real incomes shrink. Some tens of thousands have tried to flee, especially those in tech, prompting a potential “brain drain.” And these are the things we know; Russia will cease publishing a lot of economic data, a tactic, experts said, Moscow has used before to obscure the effects of sanctions.

These sanctions, said Yakov Feygin, a political economy expert at the Berggruen Institute, are pushing Russia — a modern economy, integrated around the globe — back decades and decades.

“They’ve stabilized it, they’ve taken emergency measures. That was to be expected. But that’s not going to help them in the long run,” Feygin said of Russia. “You’re not going to see people queuing for food for quite a bit. But with the current course of things, it’s still very possible.”

The US and European allies have continued to pile on more penalties, refining and sharpening the sanctions, all in an effort to ratchet up the pressure on Moscow. The EU has proposed a phase-out of Russian oil products, and depending on the final details, that might further erode the Kremlin’s lifeline. And the US could take additional steps, like threatening secondary sanctions that go after countries like China or India, to deter them from buying cheap Russian energy. That comes at a cost, and not just for Russia.

Even without more escalation, the sanctions regime against Russia is one of the most aggressive in history, untested on an economy of Russia’s size and as entangled in the global financial system.

Whether the sanctions are “working,” then, depends on what they are intended to achieve. One thing is clear: Over time, these sanctions will likely make it harder for Russia to rebuild its tanks, manufacture cruise missiles, and finance a war. It will also make it harder to produce food and make cars. And it still may not stop Russia from pursuing its campaign against Ukraine, all with unpredictable consequences for the rest of the world.”

Blame Insane Government Spending for Inflation

Posted on May 8, 2022 by Lone Candle

“Over the course of the pandemic, the Treasury Department issued roughly $6 trillion, $2.7 trillion of which was monetized by the Federal Reserve. Americans were sent $5.1 trillion through various programs, including individual checks and unemployment bonuses. Overall federal debt has since risen by about $6 trillion.

This response assumes the 2020 recession was sparked by a demand shock leading to a fall in aggregate demand, rather than the strangling of aggregate supply caused by the pandemic and lockdowns. Under these circumstances, sending people and companies money was never likely to impact output. Instead, it greatly inflated demand for the durable goods still being produced.

Even by the Keynesian economic standards that prompt this sort of fiscal response, COVID-19 relief was larger than any “output gap”—the difference between what the economy is producing and the most it could produce. In March 2020, the gap was $2.3 trillion, and that year alone, the government spent $3 trillion through several relief bills.

In March 2021, Democrats passed the over-the-top $1.9 trillion American Rescue Plan. At the time, the projected output gap was $700 billion through 2023—the period when most of the spending would take place. As such, the bill was two or three times too big, especially considering the economy was mostly reopened and growing, with unemployment dropping fast from 14.8 percent the year before to 6 percent.”

…

“Today, several new studies confirm that this bout of inflation is rooted in demand, not supply. That’s not to say supply-chain chokepoints, originally resulting from the global shutdown imposed by governments and a sudden shift away from services toward goods, played no role.

However, we wouldn’t have such large-scale supply-chain problems without the shutdowns followed by the aforementioned government-fueled increase in demand for durable goods. According to Robert Koopman at the World Trade Organization, artificially inflated demand accounted for as much as two-thirds of supply shortages.

Second, global supply chains are, obviously, global. If inflation were truly the product of supply-chain issues, we would witness roughly the same rates of inflation throughout the industrialized world. But we don’t. Most industrialized countries have lower levels of inflation than the United States. These other countries also implemented significantly lower amounts of COVID-19 spending.”

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“Today, all prices are rising, including wages (though for now at a lower rate), and the inflation is persistent. This is because of overblown fiscal and monetary policies. Tackling the problem requires strong Fed actions and significant fiscal restraint by Congress. Short of both, inflation will persist for much longer, inflicting disproportionate harm on the most economically vulnerable.

This also means that the recent calls to offset inflation with subsidies for gas, housing, child care, and more will require borrowed money. Since fiscal largesse is the source of the problem, and since these efforts make the affected markets more inefficient, the approach raises the risk of a great stagnation spiral.”

Josh Hawley Absurdly Suggests That Ketanji Brown Jackson Has a Soft Spot for ‘Child Predators’

Posted on May 8, 2022 by Lone Candle

“After President Joe Biden nominated Ketanji Brown Jackson for the Supreme Court, Reason’s Damon Root noted that she “has shown admirable judgment in criminal justice cases.” One especially telling example is Jackson’s handling of people charged with possessing or sharing child pornography, who face absurdly long sentences under federal law even when they have never committed any offenses involving contact with a victim.

Questioning those sentences is politically perilous, since people tend to erroneously assume that anyone who looks at such pictures is a current or future child molester. Yet as a judge on the U.S. District Court for the District of Columbia, Jackson frequently imposed sentences below the range recommended by federal guidelines. Sen. Josh Hawley (R–Mo.), a former Missouri attorney general, thinks those decisions reveal an “alarming pattern” of “sentencing leniency for sex criminals,” whom he equates with “child predators.”

Hawley has no idea what he is talking about. His mindlessly punitive attitude elides crucial distinctions and ignores the fact that many federal judges agree with Jackson that the recommended sentences for possessing child pornography are frequently excessive.

Jackson, who is currently a judge on the U.S. Court of Appeals for the District of Columbia Circuit, was a member of the U.S. Sentencing Commission (USSC) from 2009 to 2014. During that time, Jackson recognized that people caught with child pornography do not necessarily pose a threat to public safety. Hawley cites a hearing at which Jackson said she had mistakenly “assumed that child pornography offenders are pedophiles” and was “trying to understand this category of nonpedophiles who obtain child pornography.”

While Hawley implies that Jackson’s interest in this subject is clearly crazy, it is consistent with research that underlines the importance of a distinction that Hawley ignores in his haste to score cheap political points. As Karl Hanson, a senior research scientist at Public Safety Canada and a leading expert on sex offenders, told me more than a decade ago, “there does exist a distinct group of offenders who are Internet-only and do not present a significant risk for hands-on sex offending.”

Recidivism research supports that observation. A 2021 USSC study, for example, tracked 1,093 nonproduction child pornography offenders who were released from prison in 2005. Three years later, it found, 3.3 percent had been arrested for a “non-contact sex offense” (which would include possession of child pornography). Just 1.3 percent had been arrested for a “contact sex offense.” Even allowing for crimes that were not reported, these finding suggests this category of sex offenders is far less dangerous than people commonly imagine.

Hawley is completely uninterested in such findings. He even faults Jackson for referring to “less-serious child pornography offender[s],” a complaint that bizarrely implies there are no differences among such defendants that might be relevant to the punishment they receive. As far as lawmakers like Hawley are concerned, there is no such thing as an excessively severe sentence for possessing child pornography.”

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“In fiscal year 2019, the USSC found, 59 percent of nonproduction offenders received sentences below the guideline range, compared to less than 16 percent in FY 2005. “There had been a steady increase in the percentage of sentences imposed below the applicable guideline range in non-production child pornography cases,” the USSC notes, “which indicate[s] that courts increasingly believed the sentencing scheme for such offenders was overly severe.”

In other words, the downward departures that Hawley presents as aberrant, marking Jackson as especially soft on “sex criminals,” are actually typical.”

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“Hawley’s case against Jackson is based entirely on the unquestioned assumption that the current sentencing scheme is just and that any downward deviations from it must be inappropriately lenient. He cites one defendant, for example, who “had more than 600 images and videos and posted many on a public blog.” The guidelines recommended a sentence of 151 to 188 months, but “Judge Jackson settled on 60 months, the lowest possible sentence allowed by law.”

While a sentence of 12 to 15 years might be appropriate (or even too lenient) for someone who sexually abuses a child, Hawley thinks it’s obviously just for a defendant whose crimes consisted of nothing more than collecting and sharing images of such abuse. He likewise thinks it’s obvious that a five-year sentence for such conduct is akin to a slap on the wrist. Many people, including many federal judges, disagree.

Hawley’s sense of justice does not even comport with the views of average citizens who serve on federal juries. In a 2014 case involving a defendant who was caught with 1,500 child porn images on his computer, for example, James Gwin, a federal judge in Cleveland, asked the jurors what they thought an appropriate sentence would be. On average, they recommended a prison term of 14 months—far shorter than the mandatory minimum (five years), the sentence recommended by prosecutors (20 years), and the term indicated by federal sentencing guidelines (27 years).

Taking a cue from the jury, Gwin sentenced the defendant to five years, the minimum required by statute, which was one-quarter the term that prosecutors wanted but still four times longer than the jurors deemed fair. No doubt Hawley would consider five years insufficient in that case as well. But he does not bother to defend that position, except by lazily and ignorantly classifying all such defendants as “sex criminals” who are “preying on children.”

As a federal judge in Iowa, Mark W. Bennett likewise found that jurors did not agree with the sentences that Hawley believes are self-evidently appropriate. “Every time I ever went back in the jury room and asked the jurors to write down what they thought would be an appropriate sentence,” Bennett told The Marshall Project’s Eli Hager in 2015, “every time—even here, in one of the most conservative parts of Iowa, where we haven’t had a ‘not guilty’ verdict in seven or eight years—they would recommend a sentence way below the guidelines sentence. That goes to show that the notion that the sentencing guidelines are in line with societal mores about what constitutes reasonable punishment—that’s baloney.””

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“”Protecting the most vulnerable shouldn’t be up for debate,” Hawley says. “Sending child predators to jail shouldn’t be controversial.” But the issue is not whether “child predators” should go to jail. It is whether defendants who are not “child predators” should be imprisoned for, say, 14 months (as the jurors in the Ohio case recommended), five years (the mandatory minimum in that case), or, as Hawley presumably would prefer, the 27 years recommended by federal sentencing guidelines.”

Old-school homophobia is back

Posted on May 8, 2022 by Lone Candle

“Florida’s education law is couched in the language of parental rights and uses vague language to implicitly threaten LGBTQ teachers and allies with lawsuits. Though supporters had said the law bans inappropriate conversations about sexual activity with young students, the text never explicitly references discussions of sex — only explicitly forbidding conversations about “sexual orientation or gender identity.” The ban applies from kindergarten through third grade but leaves an opening for “age-appropriate” restrictions beyond those grades, while also not defining what “age-appropriate” means.

The legislation never uses the words “gay” or “trans,” but advocates argue that queer and trans Americans would be the primary targets of lawsuits by parents and officials behind the restrictions. Echoing the model of Texas’s abortion ban, Florida’s law deputizes parents as watchdogs, providing a path through the courts to punish schools and staff that violate the statute.

Legislatures in Alabama, Ohio, and Louisiana have since advanced similar proposals; Texas’s lieutenant governor is looking at introducing a bill when its next legislative session starts, and lawmakers in six other states, mostly in the South, have supported iterations of restrictions on LGBTQ identity in schools.

Some of these proposals are more explicit than Florida’s — Tennessee’s proposal seeks to ban books or material that support or promote LGBTQ “issues or lifestyle” altogether — but all offer a window into how social conservatives see opportunities to roll back protections for queer and trans people: score victories in the courts and make the cultural fight more extreme.”

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“Radical right-wing activists and commentators in recent weeks have been making literal accusations of pedophilia (in a callback to a trope from the 1970s and earlier) and grooming (which in its true sense means to “gain access to a potential victim, coerce them to agree to the abuse, and reduce the risk of being caught,” according to the Rape, Abuse, and Incest National Network). But they’ve also been increasingly using “grooming” as a casual insult to try to create a vague link between all LGBTQ people and cases of child abuse.
What started on the fringes, with conservative activists riding the coattails of last year’s anti-critical race theory moral panic, crossed over into mainstream media during the Supreme Court confirmation hearings for Judge Ketanji Brown Jackson last month. Sens. Josh Hawley (R-MO), Ted Cruz (R-TX), and Marsha Blackburn (R-TN) questioned the future justice’s thinking on gender, child abuse, and race. As Georgetown professor Don Moynihan wrote about Hawley’s line of attack, the point was “to create an association between Jackson and this broader trope” of child predators running rampant in public institutions. That spawned a universe of outrage in conservative media, further buoying the legislative action underway in Republican states.”

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““It’s very frustrating to see that we are having the same fight over and over again … but I believe that these folks are desperate. They have lost every fight they have picked on LGBT issues. They lost on trying to criminalize sodomy, they lost on marriage equality, they lost on bathroom bills, they lost on wedding services refusal — and we’re at 75 to 80 percent support for nondiscrimination laws,” she said.

Some of the loudest supporters of this effort have admitted this: “The alternative to the culture war is a culture surrender. There is no neutral option,” one reads. “The right needs to go scorched earth with ‘groomer,’” says another. “We are building a new model of conservative activism” with the grooming messaging, argues Christopher Rufo, a leading anti-critical race theory activist.

The rhetoric complements the institutional work that conservative think tanks are doing in pushing these bills. Lawmakers in these states have consulted organizations like the Alliance Defending Freedom, the Heritage Foundation, and American Principles Project in crafting proposals, Vice reported. (The Alliance Defending Freedom confirmed its involvement in a statement to Vox.) The progressive advocates I spoke with told me they see this feedback loop among radical activists, lawmakers, and think tanks as part of a more desperate ploy to use transgender people as a wedge issue to open the door to more mainstream attacks on trans and queer people in public life.”

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“”They pick on trans kids in the first place, because there are lots of well-meaning people who don’t totally understand what it means to be trans.””