Seven Felonies

Trump has been indicted by a grand jury on 7 felonies, including obstruction of justice. I’m told by a prosecutor that I know that proving obstruction can be harder than proving other crimes, and the media is saying that Jack Smith, the special prosecutor, is aggressive in his investigations but conservative in his prosecution decisions: he doesn’t bring cases he can’t win. He doesn’t even bring cases he things are strong maybes. Smith brings cases that he knows he has the evidence to prove.

Other charges, for mishandling classified records and even the Espionage Act violations should be easier to prove, or so my prosecutor friend says, so if Smith has the goods on obstruction, then he surely has the goods on these other crimes. Watch for the obstruction charge to be the swing count. If Smith doesn’t nail Trump on everything, it will be because the obstruction case faced unexpected new exculpatory evidence. If that happens, expect the Espionage Act case to also become shaky. But expect the records charges to stick — at least at the trial court.

That, however, brings up another issue: even if Smith can win convictions, can he preserve them on appeal. I don’t yet see any reasons why he shouldn’t be able to do so, but our SCOTUS has been particularly corrupt lately, and we can never forget Bush v. Gore when the majority openly admitted in their decision that their rationale did not hold up, and that though they were deciding the case, they did not want any lower court to use it as precedent. Things have only gotten worse at SCOTUS since, so time will tell whether they have the integrity to rule appropriately.

In the meantime, get ready for 6 to 20 months of pretrial motions and general waiting around. This is the end only of one phase, though for me it seems an auspicious beginning to the next.

Reproductive “choice” and abortion

So we have a new commenter by the name of A Woman of No Importance who contributed to the thread (still going!) about Asshole Patriarchs. I’ll let most of that stand where it is, but one piece is something that I think should be talked about, and that’s this:

One thing that bothers a lot of moderates on both sides of the issue, which I almost never hear addressed, is this: Why do we need a million abortions a year when birth control is cheap, readily available, easy to use, and mostly works? We should be living in a world in which there are no new AIDS transmissions since it is widely known how to have sex without transmitting the virus, and the same thing applies here. People know how to have sex without making a baby. It’s entirely predictable what may happen if you have sex without precautions. So, if you don’t want a child, maybe the time to decide that is before you decide to have unprotected sex.

Now, AWoNI is in favor of abortion on demand until “sometime in the second trimester” when personhood attaches to the fetus. This isn’t someone who is reflexively opposed to abortion, and AWoNI can of course clarify, but it appears from context that she places herself among the moderates.

That’s important because assuming all that is true, it says quite a bit that a moderate is repeating right-wing extremist assumptions that sex is an entirely predictable thing and people are irresponsibly “choosing not to choose” until after they become pregnant and that, to use AWoNI’s language:

birth control is cheap, readily available, easy to use, and mostly works

Except birth control is not necessarily cheap, it is not always readily available, and “mostly works” is not the same as “it works”.

Further, this is something that is addressed literally all the time. Local schools try to make condoms available to prevent AIDS transmission and pregnancy, then local anti-contraception, anti-sex extremists scream about how a cereal-bowl full of condoms on some school nurse’s desk is killing god and inviting the Chinese Communist Party to rule over the good white folk until the end of time.

Seriously, there’s a huge panic with lots of news stories every time a school tries to increase access to contraception or even simply to good information. And when those news stories are not happening, epidemiologists from the CDC and NIH are producing regular reports about access and information, all of which are available to anyone, including AWoNI. It’s truly bizarre to me when people say that “no one is X” when we have entire industries of people whose job is to study X and put out good, peer reviewed information about it.

Is AWoNI reading that stuff? Evidently not. Could AWoNI read it? Sure could. Accessed through libraries it’s “cheap, readily available, easy to use, and mostly works”. Laws and policies are written all the time using such information and research and professional opinion.

The problem is not that there is no good, non-hyperbolic information. It’s certainly not that no one is discussing these things. The problem is that one side is actively trying to suppress that information through abstinence only education which we know from those same researchers results in more disease and more pregnancy.

And thus the irony: AWoNI is pleading for reasonable discussion, while repeating the assumptions of the people who have, as a significant goal, the squashing of reasonable discussion. Worse, the conclusion that AWoNI comes to is that

if you don’t want a child, maybe the time to decide that is before you decide to have unprotected sex.

And, again, that’s the extremist position of one side: you don’t need the “choice” of whether or not to remain pregnant, because you already had the “choice” of whether or not to become pregnant.

This dovetails with something Alito (or his ghostwriters) said in their draft Dobbs opinion: which is that there’s no such thing as involuntary pregnancy, since anyone who doesn’t wish to be a parent can simply give the child up for adoption.

There can be other posts about ways in which we don’t necessarily have the choices asserted because of x or y. Also too, VASECTOMY, MOTHERFUCKERS. But mostly what i want to say here is that it’s disingenuous to claim that we have so many other choices we don’t need this one, when the person making that claim is simultaneously working to also remove those other choices.

AWoNI has entirely typical views on abortion for a woman in the US — there should be some period where it is an option, then another period where it isn’t, and we should just have a good, productive discussion about when the dividing lines between those periods should be and get this abortion thing solved. It would be silly to blame her or look down on her or think less of her for being an entirely typical woman.

But just because AWoNI is entirely typical doesn’t mean that we can’t notice how the disingenuous communication and even outright lies of extremists end up determining the expectations of the reasonable middle. “Teach the controversy” is another example more familiar to the readers of Pharyngula, but “Sex is predictable, we already have choices at other stages of reproduction, therefore abortion isn’t necessary” is a particularly pernicious one.

 

Originalism, Dobbs v. JWH, and Oblivious, Asshole Patriarchs

So, in keeping with a line of cases most recently exemplified by Washington v. Glucksberg (a right-to-die case), Alito demanded of the respondents (Jackson Women’s Health) that they establish not merely that bans on abortion were an imposition on liberty, but that there existed constitutional and statutory resistance to such bans at the time of the drafting of the US Constitution, or, failing that, at the time of the passage of the 14th Amendment upon which pregnant persons rely to defend against state and local limitations on the right to choose for oneself whether to carry a pregnancy to term or to seek an abortion.

Alito found that there was no constitutional or statutory resistance to abortion bans established by 1789 or even by 1868. And he has some examples to back that up. Let’s not fool ourselves that there’s no such thing as a coherent argument against a federal constitutional right to abortion in the USA. I think it’s a bad argument, but it’s at least coherent. Alito isn’t Marjorie Taylor Greene or Paul Gosar or Rand Paul.

But the historically-based reasoning of Glucksberg as employed in Alito’s decision leaves out crucial context, and that is that while abortion rights were not protected before the civil war, and while the law journals of prominent law schools didn’t have published articles asserting or even requesting a defense of abortion rights until after World War II, the people tasked with protecting rights – the appellate judges and ultimately the supreme court justices of the United States – included 0 women until 1934, when one woman was appointed to 1 circuit court of appeal. It wasn’t until after World War II that there was a single federal trial judge in the district courts.

To put it bluntly: the right to abortion has been protected for longer than women have been permitted to sit on the Supreme Court of the United States. To this day we have never had a woman Chief Justice of the Supreme Court of the United States.

The reasoning of Roe has frequently been criticized as muddy, but when I read Roe, one thing that I believe those 8 men were trying to examine is, “Would abortion rights have been considered fundamental if women were considered people, considered valid authorities able to determine as well as men what was necessary for the ‘ordered liberty’ the court categorizes as essential to the democratic functioning of the United States?”

Alito would have us skip that question. Alito ignores that women were not considered persons, capable of contract and of holding property. Women were not considered capable of democratic self-determination throughout the period Alito examines. To expect the record of a country’s history during which women were not allowed the right to choose anything for themselves to reflect deep respect for a woman’s right to choose pregnancy or abortion is the grossest perversion of honest investigation.

Alito attempts (in at least one place that I remember from my first reading of this draft Dobbs decision) to distinguish the question of abortion as a question of so-called “substantive due process” and thus as a question of whether or not abortion is “intrinsic to ordered liberty”, meaning that it was a liberty with a “deeply rooted” history of legal protection within the early history of the United States and its forerunner colonies. He goes as far as to say that being pregnant is not a “sex based classification” for the purposes of the court. The import here is that he is trying – most desperately – to avoid any equal protection argument.

But the truth is that the very concept of “ordered liberty” fraught with equal protection problems for an originalist such as Alito. How can one say that the worship practices of Santeria are protected under such an analysis. For if you examine the record of protections (or lack thereof) for traditional African spiritual practices, you will find that Santeria is no more a religious classification than being pregnant is a sex-based one. Why, then, should a First Amendment analysis apply? And why should Santeria practitioners expect their practices to be protected equally with those of Catholicism’s practitioners? The history tells us that Santeria was not a “religion” in the meaning of the framers, and further that protection of Santeria cannot now be granted on the basis of the 14th amendment since there is no history of protecting its practices before the US civil war. One might attempt an equal protection argument, but Alito’s reasoning is clear: equal protection only applies when discussing two classifications within the same larger category. With Santeria determined not to be a religion to the minds of the elite landed men during the early history of White North America, there is no religion to which Santeria can be fairly compared.

In short: equal protection and “ordered liberty” cannot be fully divorced, and the plain language of the 14th Amendment prohibits much that was quite normal (and normalized) at the time. Different levels of analysis (rational basis tests, strict scrutiny, intermediate scrutiny, and even “rational basis with teeth”) seem to arise in US Jurisprudence more to excuse the court from the responsibility of applying the obvious meaning of this most modern-relevant Reconstruction amendment than they do in order to justify applying the power of the courts.

Glucksberg and its predecessors were never cases with which I was happy, but Alito’s decision in Dobbs makes clear exactly where they lead: to an artificial parsing of liberty, of due process, of privileges and immunities, as separate from the context of equal protection -a guarantee contained within the very same sentence. Dobbs is an immediate threat only to rights supported by precedent drawing upon the Due Process clause, but the longer term threat comes from this notion that due process can be fully explored, explained, and protected without reference to the entirely separate concept of equal protection. And in this Originalist separation we find that liberty is exactly what the drafters of the constitution thought it was: a privilege of white men.

I leave the final thoughts to the incomparable Pamela Means:

The Immigrant, The Idiot, and The Judgement

Look, Donald Trump is an idiot. We all know that. It’s not so much that he’s ignorant, he is arrogantly ignorant. He personifies the worst-case Dunning-Kruger effect. Previously the most perfect example of this was uttered a mere 40 days or so into his presidency as he announced (again) his intention to repeal Obamacare:

Now, I have to tell you, it’s an unbelievably complex subject. Nobody knew health care could be so complicated.

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I Couldn’t Be More Disappointed In SCOTUS

This morning a decision was released in Gill v Whitford (and a parallel case out of Maryland, Benisek v. Lamone). It is, to my mind, among the worst possible decisions. Rather than taking up the case and deciding it wrongly, they have remanded the case back to a lower court with orders to consider the question of whether or not the plaintiffs have suffered an individual injury to their voting rights.

Gill v Whitford is a case arising out of Wisconsin, where egregious gerrymandering occurred after the 2010 census. The census, for those who don’t know, is primarily done – or at least was primarily intended by the framers – to determine the number of representatives in the House and the number of presidential electors awarded to each state. Since these numbers can change, and because even when they don’t the distribution of population within a state can change, every decade after the census each state redraws their electoral districts to keep the total population in each district similar.

In Wisconsin redistricting is a legislative function (in some states it is performed by an independent, non-partisan commission), and in 2010 Republicans held a majority in the state’s Assembly and Senate. They used this majority to redraw electoral maps not merely to keep populations similar, but to put as many democrats as possible in as few districts as possible so that the remaining democrats spread throughout the majority of districts would be unable to successfully contest most republican nominees.

Now, if the Republicans had done this based explicitly on race, it would have been profoundly illegal and SCOTUS would never have gotten involved. Precedent here is sufficient that lower courts would have slapped down the Wisconsin republicans and there would be no sufficient legal question to interest SCOTUS. However, the Republicans went out of their way to say that they were disadvantaging Democrats as a party, not any voter on the basis of race.

Of course, Democrats as a party are much more non-white than Wisconsin voters as a whole. So there is a racial asymmetry here, and Republicans were acutely aware of that asymmetry, but the cover story of ratfucking Democrats while really, deeply not giving a shit about hurting people of color is every bit as believable as actively wanting to hurt people with darker skin for the sin of being born non-caucasian. So the courts have generally accepted that this is political discrimination and not racial discrimination (along the way throwing out a hard-won understanding of disparate impact developed in areas of law other than voting rights and in voting rights law itself).

So what did the court do here? Well, it ignored past precedent that held that an injury to an individual occurs when districts are racially gerrymandered to the detriment of the value of that individual’s vote. On the presumption that no injury to individual voters had occurred, the court vacated the previous judgement that a new electoral map was needed and instead remanded the case to the lower court to ask the plaintiffs how they’ve actually been injured. Only if the plaintiffs have been actually injured should the lower court then take up the legal questions about whether the actions causing the injury were illegal and if so whether any remedy is justified.

It’s difficult to see how to resolve this infirmity of standing, at least to me, since in deciding that the plaintiffs had given no evidence of individual injury SCOTUS necessarily decided that statewide gerrymandering does not injure individual voters.

To be clear, SCOTUS distinguished statewide gerrymandering from living in a gerrymandered district. The idea, from SCOTUS’ point of view, is that a state could gerrymander some districts without gerrymandering others. However, the mathematical analysis of the Wisconsin gerrymander actually provided evidence that the packing of large numbers of democrats into a few districts and the cracking of the rest into isolated remnants insufficient to contest (most of) the remaining districts was actually a systemic strategy. Though I haven’t looked at each of the plaintiff’s district of residence, a good many districts were called out as specific examples in the analysis. The idea that none of the plaintiffs lived in one of the districts seems a bit of a stretch to me, though I suppose it’s possible.

The danger here is that if any democrat lived in any district that was specifically discussed, then a careful reader of the trial court record will find that and be able to argue quite reasonably that SCOTUS believes that evidence of political gerrymanders is not evidence of an individual voter’s injury. In a decision ordering remand for lack of standing without ensuring that they examined every voter’s district of residence and the trial court record for indications that none of the voters lived in a district specifically discussed, SCOTUS has come dangerously close to asserting that no voter is injured when legislators gerrymander electoral districts on the basis of anything other than race.

If SCOTUS had accepted the standing of the plaintiffs and ruled against them, it would hardly approach the danger of SCOTUS asserting that there is no injury to voting rights at all.

This is an unmitigated disaster, and quite likely caused by sheer cowardice.

Loving Day

Well, I missed it by two days, but let’s do this anyway: Fifty-one years ago on Tuesday, a mere 99 years, 11 months and 3 days after we passed a constitutional amendment requiring states to stop with the racial discrimination already, the Supreme Court of the United States ruled that yes, Virginia, there are limits to constitutional violations and stop Freuding persecuting the Lovings already, okay?

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I Dare You To Read The Comments They Don’t Allow!

Wonkette is in fine form today. In addition to Five Dollar Feminist summarizing the news from a court case in which a professional calligraphy corporation in Phoenix decided that they did not want to produce

Happy buttfuckin!

place cards for a super-gay wedding, the commenters have gone gloriously nutso with pet pictures I can’t even begin to describe for fear my tears of laughter will entirely short circuit my laptop.

Enjoy!

 

Kid Gets 5 Years For Friend’s Gun, Being Black

A teenager who was 15 years old when he ran off with some sneakers being sold on Facebook after trying them on, Dayonn Davis (who is 18 now) was tried as an adult and sentenced to 5 years in prison and 10 more on probation because the friend who accompanied him on this try-and-run shoe theft pulled a gun to cover Davis’ retreat. From CBS News:

Defense attorney Susan Henderson told Muscogee County Superior Court Judge Bobby Peters her client just wants to put the whole thing behind him and move on, the Ledger-Enquirer reported.

“He’s been extremely remorseful,” she said. “He’s got his life on track now.”

She insisted Davis didn’t know the other person would pull a gun. But the judge says that makes little difference in the eyes of the law.

If he wanted to commit non-violent violent crime as a “youth” and get away with less than 5 years, he should have joined the Stanford swim team. Not that there’s, y’know, anything significant about a Black kid getting 5 years in prison for running off with shoes while a juvenile when a white adult serves 90 days for rape. Just another day in the post-racial USA.

The Real Victim in the Brock Turner Rape Case: Aaron Persky

Aaron Persky, the judge who gave Stanford athlete Brock Turner 6 months after Turner was convicted of rape in a trial before Persky’s court, is facing a recall election today. As someone who cares deeply about the rule of law, I hope to fuck California voters throw him the hell off the bench. And while he deserved to be removed for his behavior from the bench, behavior dating back years, I couldn’t wait to comment until after the election because of the new interview in which he paints himself as the victim of uninformed masses who advocate mob rule in place of justice, starting with his own recall.

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Lycée Arago Arrests Reminiscent of Rampant Illegality in Trump Inauguration Arrests & Prosecutions

Nearing a year and a half ago now protestors in DC demonstrating against Trump’s inauguration were subjected to mass arrest, in many cases without probable cause. The treatment they received was shameful and illegal (though it is unlikely that any court will ever punish the officers involved), and the prosecutions that followed have been worse. The occupation of a high school in Paris, France on the 22nd of May (coincident with a larger protest march nearby) is now granting the French legal establishment to fuck things up just as badly as we have in the US.

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