The Volokh Conspiracy

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Thursday Open Thread

What's on your mind?


UPDATE: Sorry, tech glitch precluded comments from being posted; just fixed it.

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    1. Still doesn't work.

      1. It's unemployment benefits don't run out for another 6 weeks.

    2. "Testing."

      I know, right? How come they only approved Abbot Labs to make the rapid tests?

      1. Probably money. And if someone tells you it wasn't about the money then it was definitely about the money.

  1. Does the prevalence of breakthrough COVID cases (of any variant) support or reduce the persuasiveness of arguments for lockdowns and mandates (both mask and vaccine)?

    1. Bruce,
      The experience in the UAE and Denmark indicate (not prove) that large percentage of population both fully vaccinated and boosted is not preventing a massive surge in infection. Some countries (Taiwan and Singapore are seeing no surge at all. Mostly due to other prophylactics, but the reason is far from clear. At this point every precaution should be taken.

      1. I'd come to the opposite conclusion. I think the fact that vaccines or masks don't stop the spread of covid, coupled with the fact that being vaccinated seems very effective in protecting from severe cases means people should just go about their business. If they want that is, if they're more comfortable at home well then stay there.

        And I can say because I'm pretty sure I got the covid right now, and then gave it to my wife. But we both have mild cases, and we are going to follow CDC guidelines and isolate for 5 days before going out, but we don't see any need to get tested or go to the dr.

        1. Kazinski,
          I don't see how you conclude that.
          Hospitalizations have tripled in Italy and are more than 5x higher in Denmark. The UAE does not publish those data.
          It is true that the mortality rate has not increased in some countries it is slightly lower. Italy's rate has bee cut in half. Denmark's is slightly higher as it is in the UAE.

          As for the CDC guideline, they are another case of strange political behavior. Think about it, this strain is so contagious so you should isolate a factor of two less.

          1. We've lost the war against covid, but the terms aren't so bad. We just have to let the virus go when and where it wills just like every other endemic virus.

            We need to be like Germany and Japan after WWII and get on with our lives, not holdout on an island for.decades or flee to South America using a false passport.

            1. In the US, the terms are not so great.
              Our case fatality rate is 1%. Were it 0.2% as in Denmark, I'd be inclined to agree with you. But there are still far too many uncertainties and the virus is eveloving far too rapidly.
              You mention Germany and Japan, but both received massive US aid to recover. There are no knights on white horses comng to rescue us.

              1. You aren't seriously saying we need help digging out the rubble here are you?

                As.a funny story about that, my former mother in law was 14 at the end of WW2 in Gunma Japan, and when US troops arrived there was a lot of border line starvation level hunger, so they were grateful for the food. But in the food rations there was included canned spinach, which they considered rotten and inedible. It wasn't until she moved here in the 60's and saw it in the supermarkets that she realized its 'normal' food here, and no one was trying to poison her.

                I don't really think we need any canned spinach rations to put covid behind us.

              2. Our case fatality rate is 1%.

                Nearly two full years into this mess, anyone who still looks at the utterly contextless CFR as a meaningful metric needs to hang it up and move on. Good grief.

                1. You really are a fool.
                  Back on mute for you.

                  1. Uh huh, Donny. I knew you really didn't mute me last time based on your ongoing sophomoric note-passing comments to others about my posts, and I'm very comfortable you won't actually do so this time either. One of the first times I busted you last year was when you conflated CFR and IFR, and apparently nothing has changed on that front. At least you've moved on from your initial wish that I "catch COVID and die" to (however grudgingly) acknowledging the effectiveness and durability of natural immunity. Happy new year, my blustering buddy.

    2. The fact that all those measures only serve to delay you (meaning everyone) getting Covid as your vaccine immunity wanes argues against all measures any time hospitals aren’t 100% full. Everyone gets Covid eventually.

      Once you have vaccine immunity, a week spent taking any action with any cost to delay getting Covid is a week that could be spent without wasting that effort and incurring that cost after you recover from Covid.

    3. It re-emphasizes this is about stopping hospitals from being overwhelmed, and not for saving you per se.

  2. Apparently a new threat stalks the land: State legislatures are attempting to usurp the executive branch's right to craft election laws. Imagine the lawlessness of elections being conducted according the the rules established in advance, rather than by ad hoc local innovations!

    1. Blurb from the link
      "Never in the country’s modern history has a a major party sought to turn the administration of elections into an explicitly partisan act."

      Not the only silly statement in the link but the most obvious false one. While not the only one Tammany Hall may be the most famous example.

    2. Unless you care to notice that lower-level nonpartisan technocrats are being replaced with explicitly partisan legislatures. Many of whom have committed to the lie that 2020 was stolen.

      This is indeed bad.

      1. "Nonpartisan"; Yeah, right.

        But it's irrelevant. The legislature is entitled to write the election laws, and did you really think they'd just laugh off the other two branches deciding they didn't have to follow them?

        1. Have they ever denied a slate? No.

          Now there is real danger that'll happen.

          I didn't say it was illegal, I said it was bad. And you must have an inkling, because hiding behind 'well, it's legal' is a refuge.

          1. Yeah, there's a real danger of that: Democrats are proposing to keep Trump and other Republicans off the ballot under the pretext of enforcing Section 3 of the 14th amendment.

            1. No, Brett. You've posted about that before, and it's nonsense.

            2. Which Democrats are proposing that? Please be specific.

              1. Cori Bush. Steve Cohen. Lawerance Tribe had a NYT op-ed about it recently. There may be others.

                1. This is not 'Democrats are proposing.'

                  It is also about consequences for those who are lying about 2020, which is not the same thing as purposefully setting it up to deny the electoral slate the people vote for.

                  1. "It is also about consequences for those who are lying about 2020, which is not the same thing as purposefully setting it up to deny the electoral slate the people vote for."

                    If the "consequences" are disqualification from office, it's EXACTLY the same thing.

                    It would be one thing if they were proposing to do this after conviction in a criminal trial, with full adversarial process. Though I have misgivings about the ability of any Republican to get a fair jury trial in DC, it is at least a legitimate way to go about it.

                    But, no, uniformly they're proposing to do by legislative votes (Not even subject to the presentiment clause!) or executive branch dictates.

                    The New Pro-Majoritarian Powers

                    "... To urge the passage of new legislation, in this political moment, thus has an air of unreality, a sense of wishing for the impossible.

                    Instead, I focus here on a pair of non-legislative powers with the potential to bring about a more majoritarian democracy. Because these powers aren’t legislative, they aren’t subject to the hurdles a bill must vault to become law: bicameralism, presentment, and (for now) the filibuster. Accordingly, federal authorities can exercise these powers immediately, even in the absence of bipartisan, supermajority support for their use. Under current law, moreover, actions taken under these powers can’t be reviewed by the courts. So such measures would circumvent not just the usual impediments to legislation but also the anti-majoritarian tendencies of the Roberts Court.

                    The first power I have in mind is the right of each chamber of Congress, under Article I, Section 5 of the Constitution, to be “the Judge of the Elections . . . of its own Members.”[15][15]
                    U.S. Const. art. I, § 5.
                    Pursuant to this power—and without the involvement of either the other chamber or the President—each chamber could set rules for free and fair elections, such as the absence of voter suppression and gerrymandering. Each chamber could then refuse to seat candidates—again by simple majority vote—who benefited from these anti-majoritarian practices. This may seem like a radical proposition to modern ears: denying apparently victorious candidates their seats due to defects in their elections. But it was an utterly familiar idea in the decades after the Civil War, another era in which systematic efforts were made to thwart popular majorities. Between the late 1860s and the early 1900s, the House unseated dozens of its members (mostly southern Democrats) who owed their supposed wins to disenfranchisement, fraud, and violence.[16][16]
                    See Jeffery A. Jenkins, Partisanship and Contested Election Cases in the House of Representatives, 1789–2002, 18 Stud. Am. Pol. Dev. 112, 131 (2004).

                    The other power I’d like to rescue from obscurity is the President’s authority to guarantee a republican form of government. Alone among the Constitution’s power-conferring provisions, the Guarantee Clause applies to “[t]he United States” as a whole.[17][17]
                    U.S. Const. art. IV, § 4.
                    The President, of course, is the head of the executive branch of the United States. Thanks to this position, the President could take whatever steps are necessary, in the chief executive’s judgment, to prevent states from lapsing into non-republicanism or to remedy anti-republican abuses. The only limits on the President’s discretion are that exigent circumstances must exist, and that Congress must be unwilling or unable to act. This prospect of unilateral presidential intervention, too, may startle certain readers. Again, though, it’s firmly rooted in historical precedent. During the presidential phase of Reconstruction, President Johnson relied on the Guarantee Clause to appoint governors for the ex-Confederate states, whom he instructed to manage the states’ democratic transitions."

                  2. So in order to contradict what I said Democrats support, you're quoting some conference that is nothing politicians are proposing.

                    This is nutpicking to satisfy your thesis.

                    1. Exactly.

                      I have a complaint when someone finds a stupid bill proposed by some rando state legislator that has no chance of passing and acts as if it's about to become the law of the land in all 50 states.

                      But acting as if something some law professor said somewhere had significance is even dumber than that. (Other than Josh Blackman, of course, because he can intimidate Chief Justice Roberts with a blog post.)

        2. The legislature is entitled to write the election laws, and did you really think they'd just laugh off the other two branches deciding they didn't have to follow them?

          Sigh. Please stop Dunning Krugering this. The executive branch is the branch charged with administering laws. Not the legislative. And the judicial branch is the branch charged with interpreting laws. Not the legislative. In every single election since humanity evolved from monkeys, election officials and courts have to deal with situations that arise, whether it's as trivial as a precinct that runs out of ballots or an equipment malfunction that prevents people from voting, thus requiring that this precinct's hours be extended; or as significant as a natural disaster that prevents voting. In none of these instances, until 2020, did Republicans make claims that there was something sinister, nefarious, or unlawful about the courts or elections officials addressing these situations.

          And worse, in 2020 itself, Republicans made these claims only in the swing states Trump lost. They did not argue that the Texas election results should be thrown out because that state's GOP governor decided that the election laws didn't have to be followed. These were not legal arguments you and your ilk were making. They were Trump special pleading.

          But the fact showing the partisan hackiness of these complaints in its purest form was when these very same Trumpkins argued that the courts and election officials should not have followed Pennsylvania election laws — passed by the GOP legislature in 2019 — that expressly permitted full no-fault absentee balloting.

          1. I would argue that there's a difference between a voting machine malfunction or natural disaster that happens on election night, and a virus that the legislature has had more than enough time to account for.

            1. You can argue what you want, but it's not relevant to Brett's complaint. He's not arguing that these changes were bad policy or that they should have let the legislature respond; he's arguing that it was illegal for anyone other than the legislature to do so.

              1. Yes, I am arguing that.

                The sole author of election laws is the legislature, and if the executive and judiciary get together to jointly give the legislature an upraised finger and violate them, you can't very well expect the legislature to take it lying down.

                "Emergency" is the cry of those who'd usurp power, everywhere.

                1. The sole author of election laws is the legislature.
                  Nonsense. An outlier legal rationalization. Nothing else operates like that, including the investigatory power. There is no history that indicates it. No one has thought this was the case for centuries.

                  And it has serious practical import - power in a single branch without checks and balances is inherently unstable. The Founders talked about that all the time. And here you have a power that goes to the heart of our system, and you're advocating lets do the unstable thing because of some dodgy and clearly outcome-oriented analysis.

                  Separation of powers means the legislature does need to take judicial opinions they don't like lying down.

                  It says a lot you don't care about this system the moment there may be some partisan advantage for you.

                  This is why I can't trust Trump supporters with an overt threat on our democracy.

                2. This is such a silly argument. You, Brett, are describing how every area of law works. The executive *always* has to implement whatever the legislature decides, 100%. The courts always have to defer 100% to the legislature's laws. There's no subject area where the legislature's laws are mere suggestions for the other branches.

                  Are you arguing that election law is somehow special? How exactly? Is it illegal for the executive to implement election law? That would be surprising. Are election-related disputes outside the jurisdiction of the courts? That also seems unlikely.

                  So what the f are you talking about?

                  Well, let's not pretend it's not obvious. You don't have anything principled or logical to say. You're just repeating some vague legalistic hand-waving you picked up on Fox News and / or Parler.

              2. Those decisions were bad policy. They were also illegal. If a change in procedure violates laws as to how that procedure must operate, the proper body to make that change is the legislature -- it must change the laws.

                Courts belatedly recognized that such illegal changes happened in multiple states last year. We should make sure that executive entities do not repeat that abuse.

                1. Courts recognized no such thing.

                  1. Reed v. Virginia Dept. of Elections.
                    Jefferson v. Dane County, 951 NW 2d 556 in Wisconsin.
                    Genetski v. Benson in Michigan.

              3. It would be illegal if the legislature explicitely pondered, and rejected that change, then the executive and judicial branches teamed up to throw a coup and force it to happen anyway.

                1. Unless the courts were citing their constitution.

    3. Always interesting when I those most vocal for local control find exceptions. What people really want is control at the level of government they dominate. If Republicans controlled the Federal Government, then control should be at that level. If all they control is the state, then at that level.

      Don't the local clerks that administer the elections know best about the needs. Maybe state legislatures and the Federal Government would do better to listen to the clerks. Here an idea,

      - Feds provide the money for elections and days for Federal Elections
      - State legislature set requirements for registration, IDs and dates for State Elections
      - Locals set polling sites, drop boxes, dates for early voting and mail in voting.

      1. Here's an idea: Try getting that enacted into law before going ahead and doing it that way.

        1. Another idea: Ditch the racist voter suppression before the mainstream decides to stop being so nice about vestigial bigotry and worthless bigots.

          When bigotry is criminalized . . . bigots will improve or go to jail.

          I will be content either way.

          1. "When bigotry is criminalized . . ."


            1. Why should an act of racist voter suppression not be criminalized?

              How is it a less suitable candidate for a criminal statute than business fraud, writing a check a bank won't cash, being pantsless in one's front yard (or at a coupon redemption counter), or failing to repay an employer-imposed 'training fee?'

              1. "Why should an act of racist voter suppression not be criminalized?"

                Why is the left so bad a logic?

          2. You'll be content to have a clinger as a cellmate?

      2. Locals should not set the dates hours for early voting and mail in voting, they should be uniform across the states. They should however determine polling place locations.

        The benefits of having uniform hours and days makes it easier for voters to determine when they need to vote, it also provides greater transparency to prevent local shenanigans.

        1. They should however determine polling place locations.

          You should never give them a free hand in this. There is way too much scope for manipulation and suppression. Here is one example. I'm sure Brett and crew will be along to explain how innocent it all is.

          You definitely need standards, and setting them is not hard. How about, "98% of voters who show up at each polling place should be able to vote in 15 minutes or less," or something like that.

          That's much like the standards used in call centers and lots of other places. There are mathematical methods that are widely used to figure out what is needed. Of course that idea would give John Roberts the vapors.

          Then let the local officials decide where to put the polling places.

          1. ""98% of voters who show up at each polling place should be able to vote in 15 minutes or less"
            That does not happen in many "real" democracies.

            1. But it is an implementable standard. It doesn't even cost that much.

              1. I don't doubt it would be implementable, if money were no object. It would be insanely expensive, though.

                1. I don't think that's true. If it is, change the standard to 30 minutes.

                  But considering for how many people the wait is 0, seems a lot of lifting would be done with proper distribution of limited resources.

                  1. I've voted in anywhere between 4 hours, (My rural precinct back in Michigan back in '94. And it was raining, too!) and 2 minutes. (Here in SC, arriving during a lull.)

                    The basic problem is that in order to guarantee a short wait at ALL times, you need enough capacity to handle the surges, which is hugely over-capacity for the average load.

                    1. Surge capacity is not the same as steady capacity.

                      You got vaccinated, you see how that can work.

                    2. you need enough capacity to handle the surges,

                      Sure. But you can spread out the surges, and the load generally.

                      You don't want to do that because it would make it easier for those you don't want voting (legally) to vote.

                      You're not fooling anyone.

            2. Anyone who writes that has never seen a polling place right before work hours in the morning and right after work hours in the evening.

              1. Exactly. Not everyone can saunter in at 11:15, then go have a turkey reuben at the local greasy spoon.

            3. True, Don. But shouldn't we besetting an example?

              Anyway change the numbers a bit, but that should be the form of the standard - plus there should be consideration of travel time.

              I'm sure you're familiar with standards of that type.

              There might be an issue of cost. One solution is to expand mail-in ballots and dropboxes. Another is to expand early voting. That spreads it out and makes voting quicker, and it spreads the workload and need for poll workers also, so the cost doesn't have to increase that much.

              But of course it's clear from their actions that the Republicans hate that idea. So I guess they just want voters - well, likely Democratic voters - to stand in long lines. No fair giving them water or snacks either.

              1. Bernard,
                the more we expand days to vote the more we expand the means of election manipulation. Please notice that I did not say fraud. We allow many practices that other democracies don't precisely because they open the way to election manipulation. Vote harvesting is my pet peeve but it is only one example.

                1. I wonder if you have any objective evidence that expanding the days to vote allows more election manipulation. Vote harvesting, for instance, is just as easy to do with a single Election Day.

                  Interestingly, here in North Carolina, where an actual case of vote harvesting was admitted, the state actually has election laws on the books to prevent it. They just weren't followed in that case.

          2. I didn't say that the state shouldn't set standards for polling place locations, but you really need local knowledge to pick the actual locations. I mean you could probably do that at the state level in Nevada, but not California or Texas.

            I used to be GOP precinct captain, and I think local officials do a great job. My brother is a part time elections supervisor for a county in California, while he is far left I certainly trust him to do his utmost to make the election free and fair

            I think its a huge strength to have decentralized election authority in this country, it makes centralized election fraud very difficult, especially since its hard for any one state or county to swing an election.

            1. you really need local knowledge to pick the actual locations

              Yes. I agree with this.

            2. Eh, it makes centralized election fraud harder, it makes localized election fraud easier.

              My own proposal is that we create a national "election corps" that people can volunteer with, be trained in best practices, and then be randomly assigned to work the polls, someplace reasonably far from home.

              The problem with the current system is that, anywhere one party dominates, it usually ends up in complete control of election administration. And that's a nasty temptation.

              1. I'm not sure how much you know about state election laws and procedures. In Maryland, for instance, where Democrats are in complete control of the state legislature, every precinct in the state is run by two local election judges, a Democrat and a Republican. All positions within each precinct (for instance the judges handing out the ballots or assisting the voter in feeding the ballot into the optical scanner) has to have a balance of Democratic and Republican judges. The same rules apply in the three other states where I have worked as an election judge, Pennsylvania, Virginia, and North Carolina. I am extremely skeptical that there is rampant local election fraud.

                1. Alph, that might be reassuring to those of you who are Democrats or Republicans. Those of us who are neither have good reason to be suspicious of anything "bi"-partisan, including the discrimination inherent in the word itself. If we're doing quotas and watching each other, about a third of election officials should be neither Democrat nor Republican.

                  1. Well, I certainly agree that the two main parties have way too much control over the process. But that seems to be a separate problem from local election fraud. And by the way, I am also neither a Democrat nor a Republican. In the states where I have worked, an unaffiliated judge can be substituted for either a Democrat or a Republican. I was a head judge in my precinct in Maryland, and the other head judge was a Republican.

              2. As always, you approach things without understanding. It's hard enough to get people to volunteer to work the polls. That's why it's mostly old people doing it. People are not going to drive two hours to spend all day doing a boring, thankless, unpaid job.

                1. This is right, although I would add that most election judges are paid, just not very well. I think in 2020 my pay came to about $5 an hour, when the mandatory training time is factored in.

        2. I have no problem with having uniform times across the state if those times are based on local needs. What I don't like is when legislatures choose times that work well for small or medium communities but poorly for large communities that have large numbers of voters to accommodate.

          So, let me suggest that local clerks meet and suggest periods they feel work for all and then the legislature approves that for state-wide use.

          1. Large communities with large numbers of voters to accommodate have proportionately larger resources, and so it's utterly innumerate to expect them to have greater trouble. Just fix a reasonable maximum size for precincts, as is already generally the case, and the large community has more precincts, which it has a larger tax base to support.

    4. State legislatures are attempting to usurp the executive branch's right to craft election laws.

      No, Brett. They're trying to seize election results from voters.

      Imagine the lawlessness of elections being conducted according the the rules established in advance, rather than by ad hoc local innovations!

      Imagine not understanding the difference between the roles of the executive and legislative branches.

      1. Well since you don't understand the difference between the roles of legislative and executive branches let me explain it too you:

        The legislature writes the law, every jot and title. The executive follows the law and implements it, every jot and title. And in our system most county clerks are elected locally and don't directly answer to the Secretary of State, who if elected doesn't answer to the governor either.

        I also fully support the Arizona legislation that makes it a crime for elections officials to willfully disregard the law they have sworn to uphold.

        In our Republican system the legislative branch is supreme, and write the law both courts and executive are sworn to follow.

        1. He says 'They're trying to seize election results from voters'

          You're like 'well, it's legal.'


          makes it a crime for elections officials to willfully disregard the law they have sworn to uphold..


            1. Yeah, why didn't I deeply engage with the guy who wants to jail election officials and thinks seizing election results is fine so long as it's legal?

              1. Prosecuting people who willfully and intentionally break laws is wayyyyyyy out there.

                1. Making an illegal administrative act criminal is not something we do often.

                  If it's truly intentional subversion of the system, we can already prosecute that (denial of civil rights, etc).

                  So all this does is open an avenue to put people in jail for lesser acts you don't like.

                  It's obvious that's dangerous to anyone who doesn't want to use the judicial system to jail their opponents.

                  1. "Making an illegal administrative act criminal is not something we do often."

                    Only because the legislature don't normally find it necessary to go to such lengths to get the administrators to refrain from acting illegally.

                    1. There is no need now either. Nothing new has occurred other than the right yelling louder than usual about things that haven't happened.

                  2. Hahaha, as if official immunity doesn't exist.

                    Oh, right, you merely want the executive branch to prosecute itself. No conflict of interest there!

                    1. Yeah, no one in the executive branch ever gets in trouble..

                  3. That’s a nice opinion. Others disagree and think that election integrity matters enough to clarify the law and the penalties for intentionally breaking it.

                    1. Election integrity is very important. Virtually none of these policies have anything to do with election integrity.

        2. Kazinski, there are almost no states to my knowledge where elected county clerks run elections. Most states have county election boards, whose members are appointed in various ways, usually by the respective county party committees. The election boards usually hire a cadre of paid full-time employees who run the elections in conformity with state laws, and they hire and train election judges who just work during the actual elections. There will be a state board of elections, which oversees the work of the county boards. It's exceedingly rare that any local elected official would have much input in the minutiae of running elections. Which makes sense, since they are often candidates in those elections.

          I would also be very surprised if it wasn't already illegal in all 50 states for election officials to "...willfully disregard the law they have sworn to uphold." Incidentally, I have known and worked with many many election officials in a few states, and without exception they were fanatically devoted to following their state election laws to the letter.

          1. I have been looking, so far in vain, for a comparison of voting rules in different stats. I hear a lot of assertion based on speculation but no hard evidence.

            1. rsteinmetz, the US Vote Foundation has good online resources. Also the Aspen Institute maintains a lot of data online about voting laws across the 50 states. And of course you can just look up any state's election laws on their state website. I've done that a few times. Since your comment is in response to mine, I'm not sure what speculation you are referring to. Unless you think there might be a state where election judges are allowed to deliberately disregard state election laws.

            1. Do you know what allegedly means?

              Anyone can file a lawsuit, that's proof of nothing.

              1. Yeah, but video of the people involved saying they can't talk any more about what they're doing because it's a felony? That clearly shows state of mind.

                1. Instead of getting your information third-hand from sites with ideological axes to grind, you should just introduce yourself to the local election judges where you live. Maybe even sign up to be an election judge. Your opinion might change if you actually knew something about them and how they work.

              2. And just as a warning, Sarcastro: there are a series of astroturfed websites pretending to be local news outlets. The Tennessee Star, the Georgia Star, and a few others. These are run by a couple of conservative activists with unknown funding. (The issue isn't that they're running such websites; in essence, that's what Breitbart is. The issue is that they're pretending to be actual local newspapers, and they aren't. (They're neither newspapers nor local.))

        3. Jot and tittle, King James translation, 1526.

  3. Curious if anyone thinks the Supreme Court (or any other court) will read into the latest Fauci-Faux-Pas in that he basically said there is no public health reason for the vaccine mandates other than turning the screws on people to get more compliance.

      1. I always love it when the left gets its judicial scrutiny blinders on because it involves political to which they agree. Imagine the courts back in the day not looking into the motivations behind racial classification laws and policies in the Deep South. If Southern politicians could have just said "oh that is for general safety and welfare" and got the rubber stamp the Civil Rights movement would have never happened.

        Don't see how trying to force medical treatments on people using the specter of "public health" when it is becoming increasingly clear based upon science and public statements that this is not the case whatsoever when it comes to mandates. The goal there is simply finding ways to flex government power to force compliance. If you are cool with that then you better be cool with a lot of other authoritarian stuff coming...

    1. They should certainly take into account the fact that the vaccinated can spread covid eviscerates OSHA's argument that an emergency vaccine mandate is needed to protect workers from Covid in the workplace. It provides no protection. The only protection vaccines provide is from getting a severe case of covid, not from getting it or spreading it.

      If fact there is a plausible rationale that being vaccinated can increase the spread if it results in more of the vaccinated being asymptomatic yet still contagious.

      1. Kazinski, your argument seems to be that if something isn't a 100% solution it's a policy failure, and that's not true. Laws against drunk driving don't result in 100% highway safety (or even 0% drunk driving), but that's not a reason to repeal them. The question is whether the policy leaves us better off than we were before, and the answer to that is clearly yes. Whatever the current numbers are, they would be far worse if not for vaccines and masks.

        1. K_2,
          Looking at Denmark, I see it hard to imagine your rationale. Vaccines are very high, boosters are very high, covid is 100x higher (from 20 per 1 M to 2000 per 1 M) faster than in South Africa with only 26% vaxed. Also hospitalizations are much higher (factor of 12).
          Your yes is not so clear.
          BUT do get a vaccine and a booster out of abundance of caution.

        2. I certainly agree with Don Nico, do get vaccinated. I as we speak am dealing with the covid crud, but due at least in part to being vaccinated its very mild. I've had a lot worse colds.

          But you can't have agencies that don't have clear statutory authority mandating broad emergency mandates on employees as a backdoor to require something the government does not have authority to mandate.

          Especially when the rationale that a vaccine mandate on workers protects their co-workers is demonstrably false.

          I understand that you think that the Executive branch has the authority to do anything they deem necessary for the public good regardless of congressional authorization, but that is not the current state of the law. And the facts would have to be far more compelling for even a temporary aberration to be allowed. But I think in any case, this court learned its lesson about allowing temporary aberrations with the eviction moratorium.

      2. The only protection vaccines provide is from getting a severe case of covid, not from getting it or spreading it.

        Which ought to be enough to convince people to get it. The ICU's are filling with unvaccinated assholes again.

        1. It's also not true, but that's neither here nor there.

          1. Thank you for making that comment for me, S_0

          2. Well speaking from personal experience, I'm vaccinated, I got it, and I gave it to my vaccinated wife.

            And take this headline from Yahoo news:

            Most reported U.S. Omicron cases have hit the fully vaccinated - CDC

            I realize most people are vaccinated, so there maybe marginal protection from contracting omicron, but its certainly not overwhelming. There is however overwhelming evidence of protection from hospitalization.

            So Sarcastro I'd like to see a link that shows any evidence that shows that being vaccinated provides any protection from contracting or spreading the current varient, because I have only seen evidence to the contrary.

            1. 1. Your personal experience does not give you a unique insight into the general population.

              2. If there are lots more fully vaccinated than unvaccinated, then you might expect more cases to hit them.

              3. We don't know much about Omicron yet, but there is also no evidence vaccines are ineffective. Plus there are other strains still out there.

              1. The US has something like 74% at least partially vaccinated, and 64% fully vaccinated. If the supposed numbers before about "X times less likely to be infected than an unvaccinated person" (where X varies by claim but is at least 4) are true, we should be seeing a majority of cases among the unvaccinated instead. Or there are some rather huge inhomogeneities among those populations, such that spread of infection is much lower in places where vaccination is rarer, which also undercuts the narrative.

                1. Or there are some rather huge inhomogeneities among those populations

                  This is the answer.
                  Check out the crosstabs of who is vaccinated. Look at age and location, specifically.

                2. Kosinski and Michael P,

                  Here are links that show vaccines do reduce likelihood of infection:



                  For the first link, the default shows effectiveness with regard to hospitalization. There is a menu option to switch to infections (Select Outcome: Infections).

                  Your amateur sleuthing about numbers (which you don't link) notwithstanding, the actual data analysis by the CDC shows the vaccines do help prevent infection as well as serious symptoms if infected.

        2. The ICU are not filling up with unvaccinated people. Look at the numbers. Appears to be almost 50-50 at this point.

          Vaccinated people shed as much virus as an unvaccinated person. That translates to about the same ability to transmit. Some studies seem to show it take a higher viral load to infect if you are vaccinated, but that is going to translate to marginal transmission difference with real world application.

          You really should stop drinking the kool aid and follow the science. Get the vaccine if you want to do so. The science does show it will keep you from getting a severe infection about 98% of the time (which is as close to 100% as you get with these things). But stop buying the now disproven political line that it does anything else.

          1. Show me the numbers, Jimmy, and I'll look at them.

            A Dec. 29 report from the State of WA health dept says:

            Unvaccinated 12-34 year-olds in Washington are
            • 3 times more likely to get COVID-19 compared with fully vaccinated 12-34 year-olds.
            • 12 times more likely to be hospitalized with COVID-19 compared with fully vaccinated 12-34 year-olds.
            Unvaccinated 35-64 year-olds are
            • 4 times more likely to get COVID-19 compared with fully vaccinated 35-64 year-olds.
            • 18 times more likely to be hospitalized with COVID-19 compared with fully vaccinated 35-64 year-olds.
            Unvaccinated 65+ year-olds are
            • 7 times more likely to get COVID-19 compared with fully vaccinated 65+ year-olds.
            • 13 times more likely to be hospitalized with COVID-19 compared with fully vaccinated 65+ year-olds.
            • 15 times more likely to die of COVID-19 compared with fully vaccinated 65+ year-olds.

            Here is some more data.

            What have you got? A quote from Breitbart?

            1. Does any of this show that ICU's are filling up?

              Anyway, these CDC numbers actually seriously understate things, due to the CDC's relentless determination to ignore natural immunity. You could further divide the unvaccinated into the people who have and haven't had covid, and find that the people who've had it are comparable to the vaccinated on all these metrics, and the people who've neither had covid nor been vaccinated for it are actually ENORMOUSLY more at risk than the CDC is suggesting.

              The CDC is actually understating the risk to the immunologically naïve by conflating them with people who've already gotten immunity the hard way.

              The CDC estimates "seroprevailance", the fraction of the population with anti-Covid antibodies, at about 92%. That elevated risk for the "unvaccinated"? It's all due to that remaining 8%.

              1. Does any of this show that ICU's are filling up?

                Yes, unless you think there's no correlation between hospitalizations and ICU load, or that ICU capacity is unlimited.

                Anyway, I'm still waiting for the "numbers" Jimmy wants us to look at. Maybe you have some.

            2. Not really data bernard.
              It is a public health "broadcast."a cohort study is data. I hate to be pedantic but when solid data are so fragmentary, one should be.

            3. You simply cannot trust any numbers from the government about Covid, period. I would take a source from Breitbart or a random conspiracy blog right now over the "official" government line.

              1. That's what we know and expect from you Jimmy. But don't think that's a good thing.

              2. No doubt you would. Because you're an idiot.

                You obviously are going to reject anything at all that doesn't support your ignorant opinion.

          2. Well, maybe the ICU's are filling up, after all.

            "RUTLAND, Vt. (WCAX) - Some Vermonters who are able to find antigen tests and then test positive are clogging up emergency rooms.

            The emergency department at the Rutland Regional Medical Center has been overwhelmed with asymptomatic folks.

            Dr. Rick Hildebrant is RRMC’s medical director. He says some people who test positive with a rapid test go to the emergency room looking for a PCR test.

            The Vermont Hospital Association says it’s hearing similar stories from other parts of the state.

            Hildebrant says those who are asymptomatic and receive a positive antigen test should stay home and reach out to their primary care provider.

            He says the only time to go to the ER is if you have a positive test and are very sick.

            Hildebrant says the flood of asymptomatic people is preventing others in need of immediate care from getting it.

            “It’s not so much the beds that are the precious resource, it’s the staff at this time. So we have to have some of our clinical staff providing care to those people and they can’t provide care to the folks in the ER,” Hildebrant explained.

            Hildebrant says health department PCR testing is the best option for asymptomatic people, even though the results take a little longer.

            He says by going to the emergency department, you are also potentially exposing yourself to someone with COVID who is very sick."

        3. Bernard I certainly agree get vaccinated, but that is not the issue we are discussing, the issue is whether OSHA has statutory authority to issue an emergency vaccine mandate that is not only not authorized by Congress, but will not protect co-workers from the virus which is the stated purpose of the mandate. The only protection available to the co-worker is to get themselves vaccinated, but that doesn't justify the mandate.

          1. You are begging the question.

            Seems like you're bringing some pretty strong priors into this conversation, and it's bonkered your critical thinking for a bit.

            1. You are nuts Sarcastro, that's exactly the the issue before the court, whether the law authorizes the OSHA mandate, and whether the regulation is arbitrary and capricious.

              It has almost nothing to do with whether vaccines are good or bad.

              1. Your personal evaluation of the effectiveness of the vaccine (which is incorrect) is not relevant to that analysis.

                You know how high the A&C bar is - the very fact that there are good faith people who disagree with you is enough to clear it.

                1. Looks like the CDC has now decided that antibody cocktails treatments like Regeneron that were effective against earlier strains are not effective against Omicron.


                  I think that probably indicates antibodies from vaccinations are much less effective against Omicron too.

                  It's just whistling past the graveyard to keep insisting the vaccines are as effective as previously hoped against at least Omnicron. It is obviously not very effective preventing contracting and spreading it, but the good news is it's effective in reducing it's virulence when you do get it.

                  1. Kazinski,

                    Do you even realize how you move the bar when you are losing. This thread has gone from "It provides no protection" (Kazinski, first post in thread) to "whistling past the graveyard to keep insisting the vaccines are as effective as previously hoped against at least Omnicron".

                    All the data and studies show the vaccine does reduce the likelihood of getting infected. They also show that, if affected, the vaccinated are less likely to be hospitalized and less likely to die. But, yeah, Fauci admitting that the point of the policy is to get more people vaccinated is an admission that vaccinations have no public health purpose. *eye roll*

                    Do you guys even understand the words you write? I never understood the "OMG, Fauci said the point of the policy was to get more people vaccinated." Like, duh? Of course that was the purpose. And it pretty much, by definition, is a public health and safety purpose.

                    I guess you wanted to twist that into some admission that encouraging people to get vaccinated via OSHA rules is illegitimate because not spreading the coronavirus at work does not somehow involve workplace safety even if it does relate to public health and safety? Which I guess is why you keep pushing so hard on the "vaccine doesn't reduce transmission" when all the available scientific data (as opposed to anecdotes) indicates the vaccines actual do reduce transmission.

                    It's just weird when the arguments don't even make internal sense.

                    1. And just to be clear:

                      ""whistling past the graveyard to keep insisting the vaccines are as effective as previously hoped against at least Omnicron"."

                      "as effectively as previously hoped" = sure, they have some effectiveness, but because we would all hope for 100% effectiveness, they, by definition, are less effective than hoped!

                      "against at least Omicron [spelling corrected" = the vaccines are less effective, though still effective, against the new variant and so that means it's all bogus, by which I mean, not bogus at all, but not a panacea. Ha!

                      You guys are parodies of something. Not sure what. But something.

      3. Sheesh, even computers can comprehend that there are numbers between 0 and 1.

      4. It provides no protection.


        The only protection vaccines provide is from getting a severe case of covid, not from getting it or spreading it.

        False. But even if it were true, that would not in fact "eviscerate" OSHA's argument; it would bolster it.

        "This safety measure doesn't prevent accidents; it only prevents injuries!"

        1. "False"

          Well your quarrel isn't with me then, its with the facts.

          The NY Times NY City covid tracker says the 7 avg daily case rate for NY City is at over 25,000 a day. The previous peak almost a year ago was 6,200, that's more than 300% higher than the previous peak rate. The vaccination rate now is > 83%, at the previous peak it was zero, I'm not good at doing the math on that percentage increase so I'll skip that.

          The majority of cases now has to be coming from the vaccinated, at least in NY City, there isn't anywhere else the cases could be coming from, or anywhere else it could be spreading from.

          1. That is certainly true in the UAE and Denmark where the booster campaign has not even slowed the sprea.

          2. Kazinski, did you notice that the NYT publishes probabilities of new cases, comparing the vaccinated to the unvaccinated. A day or two ago it showed the unvaccinated were 5 times as likely to contract COVID as the vaccinated. That seems strongly at odds with what you have been claiming about vaccination and contagion.

            1. First off - NYT....nuff said about that being a reputable source...

              Those numbers aren't good at determining the probability of a vaccinated person getting a full blown Covid infection vs. unvaccinated. What it shows is that reports might be higher, but that is to be expected as the vaccine does seem to greatly limit the symptoms someone will experience. That means it is highly unlikely that a vaccinated person will ride out the infection at home without seeking any medical treatment or official testing. That doesn't translate into vaccinated people don't transmit the virus and !!SCIENCE!! has shown us that it happens with just as much regularity regardless of vaccination status. So you can either follow the actual science or continue being a puppet for the political punditry.

          3. None of these trends are particularly surprising, if you understand and have been following the science.

            Vaccinations proved effective against infection and severe disease by OG Covid, for at least an initial period of several months.

            Delta upended that understanding, because it appeared to replicate more rapidly, to higher numbers viral counts, in people's nasopharyngeal cavity. This made it more infectious. But the vaccines were still effective in stopping those infections from spreading deep into the lungs, which is where Covid causes the real respiratory issues.

            Omicron has brought a new set of facts to the table. With Omicron, we're talking about a virus that more effectively evades the available vaccines, due to its many mutations. But fortunately, with these mutations has come a lack of severity, as Omicron tends to result in upper respiratory issues that are easier to treat and faster to resolve, and the vaccines seem to provide some protection against severe disease. So the vaccines don't effectively prevent against Omicron, perhaps just due to its mutations, perhaps also because it replicates more rapidly like Delta.

            The only vaccine strategy that currently seems effective against infection by Omicron is to trigger a new burst of antibodies, which getting a booster does. That's why that's been the recommendation. This isn't a long-term fix - it seems that, after the initial burst fades, people will become once again vulnerable to Omicron, because the T-cell memory that the vaccines build isn't effective against Omicron.

            Ideally we'd pick and choose one or two of these variants and design a vaccine around them. We would then be able to design something that would prevent against infection, just like the vaccines initially did against OG Covid. But from a strategy standpoint, manufacturers need to focus their efforts on their existing technologies and manufacturing supply chains. Fragmenting the effort to chase strains appears to be (in the view of the policymakers, at any rate) less effective than simply getting more people vaccinated or boosted.

            With that being properly understood, we can see better why NYC is having a big surge. We're highly vaccinated, but booster rates are still relatively low. There are a lot of people who are "fully vaccinated" against Covid, but with vaccines that were not designed to provide protection against infection by Omicron, which is itself a very infectious version of the disease. So it's spread very rapidly here - with all the tourist traffic and travel and whatnot - and will spread just as rapidly in the rest of the country in time.

            It's not proof that vaccines don't work against infection. It's proof that vaccines don't provide long-term protection against infection by variants like Omicron or, to a lesser extent, Delta. But boosting provides some short-term protection and should continue to protect against infection from less-mutated versions of Covid, to the extent they're still circulating.

            1. Well said.

              Now applying those facts against the OSHA vaccine mandate, disregarding the fact there is no statutory authority for the mandate, certainly seems to cut the legs out from under the argument that emergency authorization is needed for an extra-legal regulation.

              1. Wrong again!

                Let's take Simon's version of events as true, and even go a little bit further and use a new word for Omicron infections, say, omivid.

                The non-Omicron strains -- "covid" -- are bad to get but the vaccines are known to be effective against spreading infection.

                Omivid is maybe not as bad, and we know less about the effectiveness of the vaccines. Let's even assume they aren't effective.

                All that does is completely nullify any of your cited numbers. If you aren't distinguishing between covid and omivid, then who cares. That's like saying... vaccinated people are still getting cancer at the same rates! So the vaccines don't work!

                If the vaccines are helping prevent actual covid cases, i.e. helping to make covid go away and get completely replaced by omivid, that's still a good reason to have a mandate.

          4. You don't understand how numbers work, Kazinski. Stay away from statistical arguments. Very far away.

            "The majority of cases now has to be coming from the vaccinated, at least in NY City, there isn't anywhere else the cases could be coming from" - Kazinski, in all seriousness.

            1. While I can concede the sheer number of unvaccinated NYer's could provide the numbers we are seeing for the infected, it really isn't possible practically. If the 17% unvaccinated are all clustered together sure, but the spike in infections just couldn't be mostly be due to just the unvaccinated, because it wouldn't be able to spread that rapidly in a sea of the vaccinated.

              What did Fauci say was the herd immunity level? 70-80%?

              1. Kazinski,

                Thank you for your response. The issue isn't whether any of the vaccines or all of them are 100% effective, or whether the spike in NY primarily consists of people who have had at least one does of a vaccine.

                For your point and criticism of Fauci to have any validity, you have to show that vaccinated people are just as likely to be infected as the unvaccinated. But the stats show that the vaccinated are 6 times less likely to be infected that the unvaccinated. (With a calculated vaccine effectiveness of 75% for the most recent two weeks of December.)

                You seem hung up on the idea that vaccination isn't 100% effective and even high rates of infection don't stop spikes in cases. But that's not the question. The issue is a world with high vaccination rates versus one with low vaccination rates. And the stats so far say that the situation would be even worse if NY had fewer vaccinated residents. So long as the vaccinated are less likely to be infected (not absolute numbers, but, e.g., per 100k) and less likely to be hospitalized, there is a legitimate public health interest in vaccinations. There's very little distance between the public health interest and the interest in making workplaces safer.

                1. I don't remember criticizing Fauci, what I said is that it cuts the legs out from under the argument for an emergency workplace vaccine mandate if the vaccinated can contract and spread the covid.

                  And that ignores that there is no statutory basis for OSHA to issue a vaccine mandate.

  4. This article comports with my experience:

    "Every movement contains a range of viewpoints, from moderate to extreme. Unfortunately, Americans on each side of the political spectrum believe—incorrectly—that hard-liners dominate the opposite camp."

    1. Actually, I think in some cases that tends to happen. For instance, both the pro-life and pro-abortion movements are dominated by hardliners, even if the rank and file are more moderate.

      1. ...but you'll be glad to know that the end result so far has been a "moderate" mush. Hegel's dialectic at work, perhaps?

        1. I'm sure you've heard the story about the guy who fell into his camp fire in Alaska in the middle of the winter. On average he was quite comfortable.

    2. IMO the GOP is dominated by hard-liners, because I think Trump supporters are hard-liners.

      I wouldn't include those who voted for him in 2016 because they didn't like Clinton, or were in a "Let's give this guy a chance" mood, and I might even exempt some of his 2020 voters.

      But now? No way. Hard-liners, fools, and seditionists.

      1. But that's just to say that your criteria for whether somebody's a "hard-liner, fool, and seditionist" is whether they share your politics, and nothing more.

        Really, I think being willing to write off that much of the population as beyond the pale just means you're looking at the pale from the wrong side...

        1. Mr. Bellmore: "But that's just to say that your criteria for whether somebody's a "hard-liner, fool, and seditionist" is whether they share your politics, and nothing more.

          I don't see him saying that at all. He's saying people who are supporting Trump ARE seditionists and fools. And he's completely correct. All accounts from all human information sources over the past year amply proven this. Seditionists and fools. Every one of them

          1. "Every one of them"

            So its your opinion that 74,216,154 people are seditionists and fools?

            1. Those that support him after Jan 6? Absolutely.

              1. Ok, then you think roughly 65 million people are both seditionists and fools.

                1. Yep. Or we can be charitable and you can choose either/or.

                2. Can’t reason with bigots, Bob. Some people are determined haters. If it wasn’t about this thing, it would be about something else.

                  1. Not sure you understand the definition of bigot, Mr. Ben. People who want to overthrow the government are a political class...not a protected class. I can say what I please about them without getting the bigot label thank you.

                    1. Bigots seldom recognize their bigotry. They always try to justify it by declaring how evil or lazy or whatever their targets really are, when it is perfectly obvious to sane observers that those claims are exaggerated beyond all reason.

                    2. Bigotry involves immutable characteristics, not choices. As hobie pointed out.

                      Do you think hating Nazis is bigotry?

                    3. "Bigotry involves immutable characteristics, not choices. "

                      If we're talking standard english usage, I don't think that's true.

                      E.g. the Cambridge dictionary says:

                      "the fact of having and expressing strong, unreasonable beliefs and disliking other people who have different beliefs or a different way of life"

                    4. I disagree with that definition, then. Because, again, that means hating Nazis is bigotry.

                    5. "I disagree with that definition"

                      That's a silly position. You can't have any kind of reasonable discussion when the participants aren't using the same vocabulary. All the participants need to share a vocabulary and grammar, or it's the Tower of Babel.

                      If you want to coin a new word that is limited to 'dislike based on immutable characteristics', coin one. 'Immuto-bigotry', or 'blurfl', or 'pizeotery' or whatever. The word doesn't matter; they are arbitrary identifiers, but communication just doesn't work when everyone insists on their personal idiosyncratic definition.

                    6. Extreme eagerness to believe any negative story or assertion about a group of people is a telling sign.

                    7. Let's cut the Gordian not. The definition requires that the person "hav[e] and express[] strong, unreasonable beliefs."

                      Hating Nazis is not bigotry.

                      Accurately describing people as seditionists and/or fools is not bigotry.

                      People who want to overturn the results of a legal, democratic election by force (e.g., the people who stormed the Capitol on Jan. 6 and the Trump supporters who think what they did was justified and wished them success) are seditious. There is nothing unreasonable in strongly condemning their conduct and their goal.

                      The other part of the 65 million or so who don't understand what the people who stormed the Capitol were trying to accomplish or who bought into the Big Lie (perhaps they believe the stupid Dominion voting machines / Che Guevara story, that millions of dead people voted for the winning candidate, that ballots were shipped out of the US to be counted then shipped back changed, or any number of the other facially stupid theories as to why the 2020 loser was not a loser) and so think the Jan. 6 effort was justified or no big deal or what have you are definitely fools. Nothing unreasonable in calling a fool a fool.

                      Hence, it was entirely unjustified to call Hobie a bigot.

                      Ben, on the other hand, unreasonably describing Hobie as a bigot is, by definition, a bigot.

            2. Well, I think "and/or" would be more accurate than "and."

            3. The question I'd like to ask each of them would be, "Is your life better off after four years of Trump? Is our country better off after four years of Trump?"

              I can't imagine a response to that question from one of his supporters that doesn't come with heavy caveats and credulous excuses. "He's not responsible for COVID or the economic damage caused by Democratic governors!" "The economic downturn on his watch was caused by China/Cuomo!" Trump's deal with the Taliban, which precipitated Afghanistan's collapse on Biden's watch? His decision to withdraw from the Iran deal, which Israel is now starting to regret? The tax cut package he pushed through, adding to our national debt but providing few concrete benefits for workers and consumers? Or, hey, what about that "draining the swamp" or "building the wall"? He made corruption worse, didn't remove the "deep state," and his shitty "wall" is already falling apart (where it was built at all). There isn't a way to justify any of that, from a principled conservative position. Anyone who claims to think Trump did a good job in any of those areas is just marking themselves as a chump.

              The only area where that's not true is in the appointment of judges/justices. Which, of course, is probably the area in which he was least engaged - apart from wanting to ensure that they would be "his" judges, loyal without any reason to be.

        2. No. My criterion is that they support Trump now.

          It's not so much that the Trumpists are policy hard-liners as that they are anti-democratic cultists.

          1. Again, you're placing a large fraction of the population beyond the pale. If you're willing to call that many people "cultists", maybe you need to consider whether you think that because you're one yourself.

            1. Continuing to support Trump at this point IS beyond the pale. Don't bitch about being placed in the category you've defined for yourselves with your own actions.

              1. Meh, Republicans believe every election since 1992 was either stolen or Democrats attempted to steal it. Andrew Jackson spent 4 years railing against a stolen election and he won the next election. Biden is president so Trump is free to make whatever claims he wants. Btw, Bush stole the 2000 election and then lied us into an asinine war while mismanaging another war AND selling us out to China.

            2. Brett, I won't toss 74 million fellow Americans out as "beyond the pale," but I've certainly seen enough from you to know that your presence in this country is not to our benefit.

      2. Fair enough, I was a reluctant Trump supporter in 2016, I finally cast my vote for him thinking "if you're going to cast a protest vote, then you might as well cast it for the protest candidate".

        But the more I saw of Trump the more I liked him, up until the end, now I'd prefer my Trumpism without Trump.

        I don't mind being called.a.hardliner because I think most Democrats are Communists and communist dupes.

        As one great American once said: ""Extremism in defense of liberty is no vice. Moderation in pursuit of justice is no virtue."

        1. Oh, sure, the thing I like least about Trump is Trump. There's no reason in principle that Trump was the only way to get Trump's policies and disregard for the DC establishment. But you go with the Trump you have, not the one you wish you had.

          1. Yes, the Trump supporter who claims not to like him but defends everything he does is absolutely a type.

            I don't think sedition should be a thing, so I'm not gonna go that far, and I have Trump supporting friends and at one time a girlfriend of that persuasion.

            But if our democracy comes under explicit attack from Trump, I absolutely don't trust people who support Trump in this day and age not toss our republic away to own the libs.
            Because in a lot of ways that has already happened, explicitly and all.

            1. "Everything" he does? I absolutely hated his bump stock ban. I thought he was stupidly slow to fire people. (Should have whipped out a list of firings right at the inauguration podium. Would have been epic!) He should have kept sending budget cuts to Congress after that first year, just to make clear who was responsible for spending skyrocketing. And I thought he continued contesting the 2020 election long after was reasonable.

              He's still been the best President in my lifetime, except maybe Reagan.

              1. "He's still been the best President in my lifetime, except maybe Reagan."

                Yep, his penchant for lies and successful attempt to undermine our democracy, as well as his "questionable" efforts to steal the election for himself and his other morally-criminal behavior makes it pretty hard to find a better President.

                Unless you actually care about America.

                1. "penchant for lies and successful attempt to undermine our democracy"
                  Unique among US politicians.

                  1. Trump is at the extreme end of the spectrum. That matters.

                    1. How can you people not remember that George W Bush stole an election and then lied us into an asinine war?? In 2000 everything was great but Republicans in Congress busted norms and got Clinton to mislead opposing attorneys in a civil deposition which led to impeachment…and that is how Bush even had a shot in 2000!?! Clinton was the best president since JFK and Gore was beaten because of the right wing echo chamber pioneered by Rush Limbaugh. Obama was also a good president and everything was fine in 2016 but Hillary lost for the same reasons as Gore.

                    2. "and got Clinton to mislead opposing attorneys in a civil deposition which led to impeachment"

                      Oh, right, the eeevul Republicans forced Clinton to commit perjury. I suppose they also forced him to suborn witnesses and to have his WH staff go around collecting and destroying evidence, too.

                    3. Brett, you've railed against perjury traps many times on this blog. Suddenly you don't care.

                      Consider why your standards shifted.

                    4. WH staff go around collecting and destroying evidence, too.

                      Do the Clinton Death List next.

                    5. It wasn't a perjury trap, a perjury trap isn't where it's just prejudicial to your interests to testify honestly, which was all that was going on there with Clinton: He was going to lose a civil lawsuit if he didn't lie, and get others to lie.

                    6. "Do the Clinton Death List next."

                      And what do you suppose the subsequent dry cleaning would have been, had Clinton managed to get that blue dress?

                      It was one of the obstruction of justice charges in his impeachment.

                      "CONCEALMENT OF GIFTS

                      On December 28, one of the most blatant efforts to obstruct justice and conceal evidence occurred. Ms. Lewinsky testified that she discussed with the President the fact that she had been subpoenaed and that the subpoena called for her to produce gifts. She recalled telling the President that the subpoena requested a hat pin, and that caused her concern. (ML 8/6/98 GJ, pgs. 151-152; H.Doc. 105-311, pgs. 871-872) The President told her that it "bothered" him, too. (ML 8/20/98 GJ, p. 66; H.Doc. 105-311, p. 1122) Ms. Lewinsky then suggested that she take the gifts somewhere, or give them to someone, maybe to Betty. The President answered: "I don't know" or "Let me think about that." (ML 8/6/98 GJ, pgs. 152-153; H.Doc. 105-311, pgs. 872-873) (Chart L) Later that day, Ms. Lewinsky got a call from Ms. Currie, who said: "I understand you have something to give me" or "the President said you have something to give me." (ML 8/6/98 GJ, pgs. 154-155; H.Doc. 105-311, pgs. 874-875) Ms. Currie has a fuzzy memory about this incident, but says that "the best she can remember," Ms Lewinsky called her. (Currie 5/6/98 GJ, p. 105; H.Doc. 105-316, p. 581)"

                    7. Have you ever been involved in a civil lawsuit?? Someone brings an action against someone and that person says that didn’t happen—so in every civil lawsuit one party is lying!! We have an adversarial civil law system which means lawyers have to work hard and they can’t go crying to the sheriff to arrest the other party when they don’t say exactly what they want them to say so they can win the lawsuit. Jones’s lawyers didn’t set a “perjury trap” they withheld information during discovery because they were unethical and weren’t representing Jones! Her lawyers should have been disbarred for not disclosing information during discovery and wasting the court’s time.

                    8. Many, perhaps most, civil suits result from differences of understanding of definitions that would result in different legal effects. It's not true that there is always one side telling the truth and the other side is lying.

                      What really got Bill Clinton into trouble is not just that he lied, but that he also convinced others to lie in concert with him. Very much like the Russia collusion hoax: That was only believed because a bunch of Clinton supporters conspired to make it look like there was independent support for scurrilous fictions, when really it was the same liars telling the same lies to different people.

                    9. Who else lied in concert with Bill Clinton?

                    10. Jones’s lawyers had proof he had a sexual relationship with Lewinsky and they withheld that proof because they were unethical. So the notion you can win a civil lawsuit by asking questions in a deposition without evidence means you don’t have a grasp of civil law. The judge should have sanctioned the Jones attorneys for wasting the court’s time.

              2. Trump governed like Jeb his first two years. Trump started realizing McConnell and Ryan and Mueller and the generals played him like a fiddle and made some changes like surrendering to the Taliban and diverting military funds to pay for the wall. Overall Trump was a mediocre president but he got better later in his term.

                1. Indeed. Much better the later it got.

              3. First President to have a net loss of jobs under his watch since Hoover.

                First President to see his supporters, on his watch, storm the Capitol in an effort to stop the counting of votes in an effort to keep him in office.

                The worst deficit spending of any President in the history of the United States, including the worst non-recession ("best economy ever") deficits in the history of the country.

                Undermining our foreign policy at every turn (pulling out of the Iran deal to stop their nuclear program which, of course, actually accelerated their ability and intention to build a nuclear weapon; saying Crimea belonged to Russia anyway; standing up next to Putin and saying he believed Putin over the CIA, FBI, NSA, and every other western intelligence agency; trying to pressure the G7 to let Russia back into the G8; surrendering to the Taliban (and only not having a head of state meeting with the Taliban at Camp David after even his sycophantic inner circle said that was too far); all things North Korea made him, and by extension, the US a laughing stock, to include exchanging "love letters" with one of the most brutal dictators on the planet, having a meeting of equals with said dictator in a huge propaganda coup for Kim but accomplishing nothing besides embarrassment for the US, giving Kim concrete wins while obtaining only future promises in his negotiations, falsely claiming Kim didn't break UN prohibition on missile tests after that summit; asking a foreign government to announce a criminal investigation of his political rival; etc. etc.)

                Undermining the independence of the DOJ and the Courts (criticizing the judge and seeking to influence the jury during the Manafort trial; "Obama judges"; "Mexican" judges who weren't Mexican in any sense of the word; pressuring the DOJ etc. to initiate criminal prosecutions of his enemies and to drop investigations of his allies)

                Abuse of the pardon power never done so openly and brazenly to reward loyal and corrupt allies.

                All of which doesn't just get a yawn from Brett, but accolades. You and your ilk, Brett, are a pox on American politics.

          2. I'm not even all that enthused about his policies, for one thing I'm a big believer in international trade, although I supported his China tariffs because you can't do business as usual with a genocidal regime that breaks international law with impunity.

            But he's the best President ever for gun rights, and its hard not to love his tweets.

            1. Ah yes, the tweets of a 5-year-old dutifully covered with misogyny and a heaping spoonful of lies.

              Hard to see why someone wouldn't appreciate that behavior from a President.

            2. Tweets and guns eh. Everyone has their priorities I suppose

              1. Guns are like a canary in the coal mine issue for me.

                If a politician isn't going to adhere to an explicit provision in the constitution then they have completely disqualified themselves in my view.

                So yeah, while guns are not a huge part of my life personally, I still consider it an impeachable offense on the first day of office for supporting any infringement on the right to keep and bear arms. Sure go ahead and support a constitutional amendment rolling back the 2nd, I'd have more respect for that, but don't support the right to carry or propose magazine limitations, or assault weapons bans, well that's sedition, to use a topical phrase.

          3. Brett, you routinely defend Trump.

            And you will do so even if he gets in trouble over taxes or something else. You will never admit that he his actually guilty of any sort of misconduct.

            1. That’s how tribalism works... George Washington warned against tribalism and opportunists like George W Bush and his nephew George P Bush:

              "However [political parties] may now and then answer popular ends, they are likely in the course of time and things, to become potent engines, by which cunning, ambitious, and unprincipled men will be enabled to subvert the power of the people and to usurp for themselves the reins of government, destroying afterwards the very engines which have lifted them to unjust dominion."

          4. Brett Bellmore : "Trump was the only way to get Trump's policies and disregard for the DC establishment"

            Translated : We had an administration 95% typical Republican in policies, but damn if there wasn't yee-haw knee-slapping great fun in watching Trump treat everybody & everything with smirking contempt.

            Is any lie more ludicrous than this "Trumpism without Trump bullshit? Subtract the reality-TV show entertainment in watching DJT wipe his lard butt on the office of the Presidency, and no "Trumpism" remains. It was never anything more than a show. After all, that's what the cult signed on for.

            Perhaps Brett claims Trump fought the "swamp", but he'll need to explain what that means. Special interests controlling policy? Politician's putting there own interest before the public good? Contempt for ethical restraints or restrictions?

            By any of those standards, Trump ran the most corrupt administration in decades. But Trump supporters aren't concerned in the slightest about ethics or corruption - they just want their entertainment. They just want their show.

        2. Kazinski,

          I assure you I'm not a Communist, and my friends, virtually all of whom are Democrats, are not Communists either.

          Are we "Communist dupes?" I don't think so. It;s true that, speaking generally, we favor, to varying degrees, expanded social welfare programs and think government has a useful role to play in economic matters as elsewhere, but that hardly puts us in position of assisting a Communist takeover of the US, unless you think that most western-style democracies are Communist countries.

          I'd add that my own views might well be a bit towards the right in most of those places.

          1. "Are we "Communist dupes?"

            Fellow travelers is the historic term.

            1. I favor the term "useful idiot", it's more to the point.

              1. Assholes.

                You don't even mean it, it's just an epithet to you.

              2. Kazinski is the one who used "Communist dupes."

                Doesn't matter. None of your substitute terms apply either.

                In fact, if you believe the crap you write, which I guess you do, then you're the one who's an idiot, or suffer from paranoid delusions.

                I mean, what are these devious Communist plots I'm supposedly helping along? Is Canada a communist country?

          2. Well here is a simple test for those who are curious about whether or not other a might see them as communists or communist dupes:

            Do you believe in single payer health insurance?

            Do you believe in a.wealth tax?

            Do you believe that the federal government can mandate vaccines for the general public?

            I'd classify a yes answer to any one of those as at least a communist dupe, all of them straight up communist.

            1. Yes. Yes. Yes. And if you believe that makes me a communist, it's pretty obvious you've never read anything more intellectually challenging than Reader's Digest, Better Homes & Gardens, and American Rifleman.

            2. Well, I'd say your definition is idiosyncratic, at best.

              You rob the term of any meaning whatsoever. Supporting perfectly reasonable ideas that you happen to disagree with does not make anyone a communist.

              Anyway, your questions are far too vague to be meaningful.

              For example, I believe in estate taxes, which are a kind of wealth tax, but I'm not convinced a regular annual wealth tax is a good idea.

              Can the federal government mandate vaccines? Sure, depending on the attributes of the infection in question.

              Do I "believe" in single-payer insurance? Well, sure. I mean it exists some places, so can I not believe in it? Is it a good idea? It might be, in those places. I'm doubtful it would be practical to try to do it in the US. OTOH, it is in the nature of health care costs that there is going to be government involvement in the whole thing.

              May I add, you sound a little McCarthyist here. I thought better of you.

            3. I don't think you know what "communism" means *at all*. You really should stop using the term because it makes you sound like a horse butt.

        3. What is "Trumpism without Trump"?

          Trump wanted to find a way to revise the libel laws so that he could outlaw criticism, he abused emergency tariff authorities to try to coerce China as well as allies into more favorable trade agreements (and was duped by China into thinking he'd gotten one), he used antitrust laws to punish companies that resisted his dictates and government contracts to reward his cronies. If we look to the politicians he has "inspired," you're talking about people proposing to prohibit people who relocate to "red" states from being allowed to vote there for several years, people who are criminalizing protest, people who are finding novel ways to subvert the rule of law in order to pursue conservative social goals, etc.

          There's no problem in saying, "I want an American president who forcefully stands for American values, is not bound by old patterns of Washington groupthink, and favors freedom and transparency over centralized control and regulation." That's what I want, too. I just don't understand why someone who says that would claim to find it in Trump or something they would call, "Trumpism." As far as I can tell, everything that distinguishes "Trumpism" from "conservatism" or "libertarianism" is something that is anti-liberty and pro-corruption.

    3. So-called moderates elect hardliners to do their dirty work for them. Then hide and pretend not to see what hardliners are doing.

      And, when it comes time to vote, they let themselves be swayed into doing it all over again because someone told them the bogeyman would get them otherwise.

    4. Obviously true as to Republicans. The way to win a Republican primary is to run to the right.

      The last time a Democrat won the Presidential nomination by running to the left was 1972. How many of us were alive then? It was over twelve presidential election cycles ago.

      1. That points to.the biggest difference in Republicans and Democrats, Republicans can get elected by telling you what they think, for instance Trump didn't hide any of his positions in 2016, the only people surprised at how he governed were the people who thought he was lying to get elected.

        Democrats get elected by true to make you think they are moderates, then try to enact the most radical platform they have the muscle to get away with. For instance Biden who ran as moderate and for a return to normalcy. Trying to ram through 4 trillion in spending with an unconstitutional wealth tax, on top of a 1.2T in infrastructure, and a 1.9T covid stimulus isn't anything close to a return to normalcy.

  5. Respondents often tell pollsters they want a third party. Are they just telling the pollsters what they think the pollsters want to hear? Are they just venting while having no intention of abandoning their two-party addiction? Or is there an opening for a third party (or more than one)?

    1. There is no opening.

      It's all in the transition cost. Negative partisanship means no one wants to weaken their current party for even a single cycle, existentially flawed though they may think it.

      I think it's telling that the last times we had a viable 3rd party you had parties that were moving together - either Clinton triangulating or the Dems and Reps both claiming the mantle of Progressive in 1912.

      1. There used to be an opening. The "campaign reform movement" was all about slamming it shut.

        1. No, it wasn't. Campaign finance is not a conspiracy against third parties.

          Sometimes a thing is exactly what people say it is, and there's no hidden agenda.

          1. Oh, God. No, it wasn't a conspiracy against third parties, it was purely coincidence that every time we found a way to get ahead, the next round of 'reform' outlawed it. For instance, it was just coincidence that, when we qualified for matching funds under the rules, they instantly changed the rules.

            "Sometimes a thing is exactly what people say it is, and there's no hidden agenda."

            But this is politics. That there's a hidden agenda is the default assumption which rarely goes wrong.

            1. Campaign finance doesn't outlaw third parties.

              Maybe there was some chicanery with matching funds - I don't know the insides of that - but that does not mean you get to assume an agenda behind everything else regarding campaign finance.

              Politics does not have a secret agenda as the default assumption. That's a convenient prior to bring to the discussion, but such cynicism is facile for anyone above the age of 22.

              Politicians are not a special breed of person wit extra secret agendas, they're a pretty various group of people who respond to all the usual incentives. Some lie about their motives, some don't. Just like everywhere else.

              1. Didn't say campaign finance 'reform' outlawed third parties. It outlawed what they needed to do to win. Such as zeroing out "party building" funds. The major parties are already built, after all.

                1. What zeroing out of party building funds? Super PACs are a thing. Heck, normal PACs are a thing.

                  And even if they were not, party war chests are election-to-election. Is there an activation cost for a newcomer? Sure, but that's the same as it ever was.

                  1. Bipartisan Campaign Reform Act

                    "Soft money
                    According to the Federal Election Commission, the Bipartisan Campaign Reform Act "includes several provisions designed to end the use" of soft money in federal elections. Soft money is defined as "money raised outside the limits and prohibitions of federal campaign finance law." Soft money is sometimes referred to as nonfederal money (meaning that the money is not subject to federal law). Specifically, the Bipartisan Campaign Reform Act does the following:

                    prohibits national political party committees from receiving or using soft money in federal elections
                    prohibits state, district and local political parties from receiving or using soft money for federal election activities; for specified activities, including voter registration drives and get-out-the-vote activities, these parties can use nonfederal funds (called Levin funds)
                    prohibits federal candidates and officeholders from raising or using soft money for federal election activities"

                    The major parties were not much dependent on these expenditures. Third parties, with the ballot access drives forced on them by discriminatory ballot access laws that gave major parties automatic access, while requiring other parties to mount massive petition drives, found this money absolutely essential.

                    1. Good lord, Brett, have you been paying attention to politics in the past 20 years?!

                      Coordination is de facto allowed, you just can't formally hold it in a specific party committee.

            2. But this is politics. That there's a hidden agenda is the default assumption which rarely goes wrong.

              No, Brett. It always — and I mean always — leads you astray.

      2. There was no viable "third party" in 1992 or 1996, there was a viable third candidate for president. No Perot party member won any house or senate seat. Or anything to my knowledge. Maybe Jesse Ventura could fit.

        Bull Moose party was not viable either. Teddy was viable.

        1. I was a big Perot supporter. I have since realized he was just deliberately splitting the Republican ticket to force Bush to lose.

          They were both major Republican players for 25 years already so god knows what was their beef.

          He even quit the day of Clinton's acceptance speech, saying how pleased he was at the invigorated Democratic party.

          1. Perot: secret Democrat is a crazy take.

            Being happy the Dems went corporate is not a sign of support of the Democratic Party.

          2. I don't know that he actually had a beef with Bush, maybe the Democrats just paid better. You know that he made up the cost of that campaign in a few months after the election with government contracts, right?

            1. Jesus Christ, dude. There isn't an evidenceless conspiracy everywhere.

              Perot got lots of government contracts since the 1960s.

            2. You know that he made up the cost of that campaign in a few months after the election with government contracts, right?


          3. Perot took more votes from Clinton than he did from Bush.

            During the three months he was out of the race, Clinton’s poll numbers were towering over Bush’s, almost 2 to 1. After he reentered they went back down to more or less what ended up happening in the general election.

        2. That's one of the ways a third party can start. Maybe the easiest way.

          1. Yes.

            One of the reasons we don't have viable third parties is that most of them are really just ego trips by the Presidential "candidate." Bob is right about that.

            You don't see any grass-roots organizing, trying to win state or local legislative seats, the occasional Congressional seat, etc. If you want to build a party that's the way you do it. If you just have a lot of people rallying around Perot for whatever reason the crowd disappears when he goes away.

            1. Perot was an independent candidate. However, some states have no practical way for you to run as an independent, so he created a shell "party" to run under. Then kept it around for a while afterwards in case he wanted to use it again.

              But it was never a case of a real third party picking him as it's candidate. It was the candidate creating a "party" in order to achieve ballot access.

              As it was, he didn't actually legally qualify for ballot access in all that many states. Elections officials waived the rules to put him on the ballot, which royally pissed off REAL third parties that had to sweat blood to get that line on the ballot.

          2. "Maybe the easiest way."

            Its a dead end. Such a candidate does not create any structure that can continue.

            Charismatic candidates like Teddy in 1912 and Perot are meteors which flash across the sky leaving no trace afterwards.

            1. Trump is a third party candidate!! I’m pro-Trump but I never became invested in him because he appointed Tillerson on Condi Rice’s recommendation. So I knew right away Trump was in over his head.

              Trump is now railing against McConnell but Trump could have made McConnell bark like a dog had he just held up the Supreme Court appointment and other judicial appointments. McConnell would have caved in seconds and figured out a way to fund the wall and reform immigration laws. Trump did get better on things like the wall but he got worse on domestic policy by cozying up to the Freedom Caucus and becoming hyper partisan. That said if Biden passes BBB I will have no problem voting for Trump in 2024 because I believe that is the last of the new welfare programs we need.

      3. People, Duverger's Law. The problems with a third party are structural to a FPTP, single-member district arrangement. They're not about campaign finance or ballot access or whatever Brett's made up conspiracy theory of the day is.

        1. I can't speak for Brett, but...

          Where now are the Federalists?

          Where are the Whigs?

          The wind did passeth over them, and they are gone; and the place thereof shall remember them no more.

          1. Both Whigs and Federalists collapsed first, and then a new second party arose.

            1. That's debatable on both points.

              The Whigs were still a party in 1854, and Jefferson split from the Federalists to form the Democratic Republicans.

              1. Your timing is off. The Whigs collapsed between 1857-1860, hence the Republicans became the new second party. The Federalists faded away gradually during the Madison and Monroe era and the Whigs became the new second party.

        2. Sure, and Duverger's Law is supposedly proven as the number of voters approaches infinity, under some other constraints. But India and Canada have many parties, not just two, under their FPTP, single-member district arrangements. What makes them so different from the US?

          1. Parliamentary systems, I assume.

    2. I do think there is a desire and a real opening for a third party at this time. I think that Libertarians could make inroads in areas that lean Republican but don't care for the Trump dominated party. Image if Libertarians controlled a small but significant number of seats in the House. They could exercise a degree of control, like that of Joe Manchin in the Senate.

      1. Speaking as somebody who was active in the LP from the late 70's to late 90's, about 20 years...

        It's no longer possible for third parties to make inroads, though if any of them were going to, it would be the LP. (America's only "third" party, the rest are at best "fourth" parties.)

        The major parties saw the threat rising, and rigged the system to counter it. Ballot access rules designed to force 3rd parties to run a marathon to arrive at the starting block already exhausted. Campaign finance laws intended to starve them of resources. A 'bipartisan' debate commission to keep them out of the debates. Leaning on pollsters to stop asking about their candidates, creating a media consortium to report election results with third party votes airbrushed out.

        We don't have meaningfully free elections in America anymore, there are only two options permitted.

        1. I disagree with many ballot access restrictions and have worked to diminish or eliminate them.

          The far more important problem for candidates who are not Republicans or Democrats, however, appears to be that when they reach the ballot they receive few votes. Until that problem is solved the ballot access issues are more a matter of justice, fairness, and theory (and I will continue to promote ballot access).

          I observe plenty of minor-party or no-party candidates on ballots.
          At the practical level, Libertarian, Conservative, Green, etc. (and unaffiliated) candidates currently are losers.

          1. The current Supreme Court is attributable to those who voted for Jill Stein in 2016 and Ralph Nader in 2000.

            1. If only those dumb Democrats hadn't run off the plantation everything would have been fine!

              1. The analogizing of party loyalty to slavery so clearly doesn't convince anyone but those already convinced.

                1. It's what's known as a metaphor.

                  Certain parties think they pretty much own the votes of their "base" voters, and express indignation (see above) if these voters act as if they own their own votes.

                  I'm no adulator of the market, but at least if a company finds that people aren't buying its product, it either adapts or it loses out. If it chooses to curse out their customers for not buying their crappy product, they're hopefully headed for bankruptcy.

                  But if a political party is selling a product (policies) so crappy as to drive off their "base," then they think they can bring those voters back by shaming tactics instead of improving their policies (product).

                  Slavery metaphors are themselves shaming tactics to throw back in the face of politicians trying to shame voters.

                  1. Peer pressure = slavery. Dude, that's an awful metaphor.

                    Worse it includes implications that at best make people write you off as hopelessly partisan and at worse are offensive.

                    You can say it all you want, but it says more about you than it does Democratic voters.

                    1. First off, don't call me dude.

                      Second off, say plainly what you mean, don't fob it off on what you say other people will think.

                      I'm either partisan or not (for which party? I denounced the duopoly in which you're still entangled, so it seems it's a case of physician, heel, thyself)

                      I'm either offensive or I'm not (hint: I am, because I'm slapping you and your fellow duopolists over the head with the silliness of your shenanigans)

                      As to what I said about Democratic voters, I didn't insult them, I praised those Democrats whose consciences led them to vote Nader. Nader isn't my pot of tea, but at least he sees that corporate dominance of our politics is a problem (though he isn't any more able than I am to find a cure).

                    2. Which Trumpian politician denounced US - chartered corporations for failing to have the Pledge of Allegiance said at shareholder meetings? (And he didn't hesitate to suggest that this was a symptom of unpatriotic behavior toward poor Americans)

                      (Not really a trick question, since the answer can be inferred from the Web address)


                    3. I'm talking about how you will be perceived, not what you think. I was in fact quite clear on that.

                      I do take issue with what you think as well, though - that independence is a virtue in and of itself, regardless of the consequences.
                      I'd say the past 20 years have been pretty evident about what the consequences of such myopic sulking have been - lotsa wars, and an empowered lunatic fringe on the right.

                    4. "that independence is a virtue in and of itself, regardless of the consequences"

                      Again with the straw-manning - are you even capable of anything else?

                      As for what people will think - people will think you're telling them what they ought to think of what I say, under the guise of your concern-trolling. They won't be fooled by you any more than they'll be fooled by your straw-manning of my clearly-articulated views.

                    5. "I'd say the past 20 years have been pretty evident about what the consequences of such myopic sulking have been - lotsa wars, and an empowered lunatic fringe on the right."

                      People will take your ridiculous talking points as evidence that the duopoly has run out of ideas, and can't take ownership of its own mistakes, as with this absurd attempt to say that the disastrous bipartisan war policies we've seen are the fault of some guy going off to vote for Nader or some other antiwar third party.

                    6. I praised those Democrats whose consciences led them to vote Nader.

                      This is not me putting words in your mouth - this is your words finding inherent moral value in not voting for one of the two parties.

                      I'm not concern trolling. Do you think me insincere, or do you now know what that term means?

                      And if you think analogizing people to slaves is convincing them to agree with you, I can't stop you. But you're wrong.

                    7. "your words finding inherent moral value in not voting for one of the two parties"

                      Don't be ridiculous - you sound as if Nader (like your own duopolists) stood for nothing and only mindless contrariness could get people to vote for him. Unlike your duopolists, he had ideas and polcies, and *that's* why he got such votes as he did. He was at least against the bipartisan war policy which you perversely blame on him.

                    8. Nader wasn't going to get elected, so his ideals were immaterial.

                    9. Which is more important - that a particular candidate gets elected, or that the voters communicate to politicians that they want certain policies attended to?

                      If a 3rd party has a popular idea, the duopoly (or one of its wings) tries to absorb the idea - not from conviction, simply from the desire to win back the votes they "lost" to the 3rd party.

                      You duopolists can have your cake and eat it too - keep your grip on power, while (for once) pursuing policies which make sense.

                      Or you could go on as you're going, choosing almost-uniformly bad ideas, until you get (to borrow Kirkland's term) better parties/candidates.

            2. "The current Supreme Court is attributable to those who voted for Jill Stein in 2016 and Ralph Nader in 2000."

              And all the Jews in Florida who voted for Pat Buchanan. How in Hell did that happen?

              1. Possibly due to his best campaign worker happening to live in a Jewish neighborhood? Third parties get so few votes to begin with that little details matter a lot.

                Nah, I'm convinced that the butterfly ballot was mostly responsible, though not entirely. I just don't think that had any particular implications for a recount: You cast the vote you DO cast, not the one you meant to cast.

          2. "I will continue to promote ballot access"

            What about ballot access for left-wing parties in marginal Democratic districts (or states)?

      2. "I think that Libertarians could make inroads in areas that lean Republican but don't care for the Trump dominated party."

        Trump is 75 years old. How many more years will he "dominate" anything? Can the Libertarian Party go from being mostly irrelevant to a real competitive party in 5 years? No.

    3. Voting for a third party candidate only serves to help the major party candidate you are most opposed to.

      1. Yes, under the current plurality voting system (often called "first past the post" for some reason). Third party candidates tend to siphon votes from the other candidate who most closely resembles them, helping the other major party candidate.

        This changes under ranked choice voting, which has already been implemented in Alaska and Maine. If it becomes more widespread we could see the growth of viable third (and fourth and fifth) parties.

        But I wouldn't hold your breath.

        1. I agree here, ranked choice voting would be better for third parties and might give them a leg up to get into the race.

      2. Whigs are a counterexample.

        Bull Moose arguably hurt Wilson more than the already dead in the water Taft. Denied him a majority.

        1. We had a much freer election system when the Whigs went under. No ballot access laws, no campaign finance laws. If you wanted to run, you did, if people wanted to vote for you or donate to your campaign, they could, and they didn't need permission from the government to do it.

          Nothing like the locked down system we have today, designed to channel all political action into one of two parties.

          1. Neither of those speak to the issues captcrisis has.

            And I'm not sure campaign finance reform, properly done, is a rent-seeking enterprise. That isn't even the case now, in it's lobotomized form.

            It's a game theory problem, not a one of your hobby-horses problem.

            1. "And I'm not sure campaign finance reform, properly done, is a rent-seeking enterprise."

              If by "properly done" you mean "precluding rent-seeking," then of course you're right.

              1. No, there is no way to preclude rentseeking.

                I mean not this weak-ass lobotomized form.

                1. It's kind of a dilemma.

                  Assume there were a way to reform campaign finance so as *not* to give advantages to the duopoly parties vis-a-vis third-party competitors.

                  How would you go about persuading the duopolists to support such reforms?

                  1. The only way I can see is to split the duopolists, by persuading one wing of the duopoly that they can ally with third parties against the duopoly's other wing.

                    But the problem with that is that third parties are various, some "stealing" votes from one wing of the duopoly, some "stealing" from the other.

                    So how can they predict how a *bona fide* reform, respecting third party members' rights*, would work out in practice? How could they be sure that an *impartial* reform would benefit only the third parties which "steal" from their opponents?

                    *I will mount my hobby-horse here and say that the rights of major-party voters are at stake here, even or especially those who are determined to oppose the third parties. If you can't vote *for* a third party you can't vote *against* it either, and voting against is just as essential a part of voting rights as voting for.

                    1. A. You could bring it on incrementally.
                      B. You could start it locally, and if it catches on you get a wave of support

                      Reform is hard. You seem to be arguing therefore lets not try.

                    2. "Reform is hard. You seem to be arguing therefore lets not try."

                      I seem to be arguing nothing of the sort. Free yourself from the duopoly which ensnares you. Escape their plantation.

                    3. Or, maybe, you could stop with your virtue ethics and consider consequences for people who aren't you, and can't comfortably indulge there independent self-image. Immigrants, women who need abortion, the working poor...

                      Have a vision of a better world that is about more than burnishing how pure you are.

                    4. A vision of a better world which entails more innocent unborn children being killed? No thank you.

                      If I'm advocating "virtue ethics" (as you claim), then what do you call your desire to remain on the plantation of one of the duopoly parties?

                      The idea of fleeing the plantation as something wild-eyed, irresponsible, and dangerous is just the attitude the duopolists want to inculcate.

                    5. As for immigrants and the working poor, consider how they will perceive your insulting and condescending attitude that they won't survive away from your wretched duopoly. Hopefully, attitudes like yours will *encourage* them to leave your plantation.

                    6. Ah, so you like it when Dems don't vote Dem, and are pro life.
                      Funny, you haven't called the GOP a plantation, even as you rail against the 2 party system.
                      I have made instrumentalist and consequentialist arguments as to the results of leaving the Democratic Party. You have not - you just talk about the inherent value of rejecting the two party system.

                      That's why your arguments come from virtue ethics, and mine do not.

                      It's funny you can't tell the difference, and post under the assumption that I'm making the same inherent virtue argument you are. I'm not.

                    7. You are so caught up in your bizarre Tweedledum-versus-Tweedledee worldview that you can't even understand what it would mean for a large number of voters - including a large number of prolife voters - to abandon your duopoly.

                      If the duopoly loses its appeal to prolifers, this will affect *both Republicans and Democrats* who are now adhering to their respective wings of the duopoly either because of (Rep) or in spite of (Dem) the parties' *ostensible* life views.

                      I've been known to vote against the duopoly myself - that includes its Republican wing - and I'm prolife. I'd love to see others do the same.

                      There are some sincere foot-soldiers in the duopoly parties, but as for the duopolist leaders and intellectuals, they seem less interested in real issues than in which one stole the other's nice new rattle.


                      I, for one, am rooting for the "monstrous crow."

                    8. I'm dealing with the world we have, including the game theory incentives and popular support for a third party.

                      In this world we live in, voting third party doesn't magically bring a plurality of voters with you. It just acts as supporting the other side.

                      The way to make a viable third party is not to vote that way and be smug at everyone caught voting like outcomes matter.
                      It's either look for broad, incremental change to the system, or more fundamental change at the local level.

                      But I also get opinions can differ, even though I'm passionate. That's why I got no beef with individuals who gotta vote third party.

                      I have an issue with those who believe there all virtue lies, and all others are fools.

                    9. "voting third party doesn't magically bring a plurality of voters with you"

                      Oh, I totally believe that, you're not exaggerating at all.

                      "broad, incremental change to the system"

                      You're right, I'm against broad, incremental changes, you're not exaggerating at all!

                      "I have an issue with those who believe there all virtue lies, and all others are fools."

                      I have an issue with those who not only support the duopolists who've brought us where we are today, but who smugly believe that in doing so, they've acquired a moral lock on all political prudence.

                      The leaders of your parties laugh at you.

                    10. But at least when the duopolists self-righteously proclaim that third-party candidates are nothing but spoilers, they may sincerely believe it.

                      After all, they ran a spoiler candidate (Evan McMullin) back in the day when they were under the impression that Trump threatened their interests.

                      Since they themselves make use of third parties purely as spoilers operating within the two-party system, it's understandable that they would think of *all* third parties that way.

    4. By the same token, yesterday’s software pirates would often be heard to say they’d pay for software if only … [something that never happens]..

      People are for things as long as they’re a fantasy. When it gets closer to being real, with real pros and cons, they tend to be against those things. But they’d assuredly support them if only the pros were unrealistically more and the cons were unrealistically less.

  6. The California legislature has way too much time on its hands. All legislatures should be part time, I think. In the list of new state laws for 2022 that the news stations are reporting on, there’s a new California law that allows you to collect and eat roadkill, but it reportedly requires you to obtain a permit from the state after you scrape up the roadkill but before you take your first bite.

      1. It's a pilot program that's still being rolled out. The authorizing statute is here. In part:

        (a)(1) Consistent with Section 91.8 of the Streets and Highways Code, the commission may establish a pilot program for the issuance of wildlife salvage permits through a user-friendly and cell-phone-friendly web-based portal to persons desiring to recover, possess, use, or transport, for purposes of salvaging wild game meat for human consumption of, any deer, elk, pronghorn antelope, or wild pig that has been accidentally killed as a result of a vehicle collision on a roadway within California. This permitting process shall be available at no cost to the public.

        1. If you must get permission to do anything, you are no longer a land of the free.

          You may, however, be a democracy.

          Learn the difference. And please pay attention to historical context of massive corruption worldwide, which means you must pay a little extra for the permissions.

        2. Elk? Once you get up to that size, you might have to be a cannibal to make edible use of the collision victim. They were wise to omit Moose.

          1. "Once you get up to that size, you might have to be a cannibal to make edible use of the collision victim. They were wise to omit Moose."

            Nah. A relative went to U of Alaska in Fairbanks for a year. He bought a beater Geo Metro that was nicknamed 'Moose Slayer' because it had 3 moose to its credit. It was battered but still running.

            That's not to say you can't total a car hitting a moose or a whitetail for that matter, just that it's not inevitable.

            And that's without considering semi's with the big welded tube screens on the front.

            1. "He bought a beater Geo Metro that was nicknamed 'Moose Slayer' because it had 3 moose to its credit. It was battered but still running."

              Well, sure, it probably took out the legs and cleared the torso. 😉

            2. Absaroka, that Geo Metro story reminds me of a long-forgotten incident. I happened on an ordinary 4-way stop sign intersection, right after an accident. Single family residences on all 4 corners. The first thing I noticed was the usual dusting of post-collision debris in the road ahead, and then a Honda Civic with a slightly crumpled fender, out of the way on one corner of the intersection. Diagonally across the opposite corner—at the end of a 20-foot gouge in someone's yard—lay a cement truck, wheels up.

              I suppose that was probably some heroic driving by the cement truck guy, but the apparent David v. Goliath tableau was unforgettable.

          2. Well moose isn't a thing in California.

            But it's too bad they didn't include Bear, in my county bear roadkill is relatively common.

      2. It was in one of those local news, year-end “New laws in 2022” stories. Here’s a link to one such story that mentions it (from KTLA), although I have seen it (and other new laws) mentioned on several sites:

        1. Thanks, LoB and Jacket.

          One question. Is it actually illegal now to pick up roadkill for personal consumption?

          If not, this sounds like a way to authorize some sort of organized, possibly volunteer, effort.

          1. claims that California only allows taking animals using specifically authorized methods, and automotives were not (previously) authorized. Other stories about a similar law in 2020 said that state officials reiterated that collecting roadkill was still illegal, until the permitting system got implemented.

    1. The states I am familiar with that allow roadkill collection also require permits (for eligible game) because they are used to track population.

      1. because they are used to track population.

        It's a bit surprising that the overall volume of roadkill (and in particular, the subset that people actually want to pick up) would be more than a rounding error for species of interest.

        1. My thoughts exactly, lol. Who was the lobby for this particular piece of legislation? I haven’t been on the Internet forums recently; maybe we’re missing some explosion of popularity of “Fender to Table” sustainable food sourcing. If so, I’m putting my money on the millennial hipsters who have moved on from home brewing, axe throwing, and escape rooms.

          1. In all fairness, it's ever-so-slightly more palatable than their other recent save-the-planet idea of eating bugs. I think.

            1. The proverbial choice between a poke in the eye or a kick to the nuts.

          2. I looked up the California situation a bit. Apparently it could take weeks at times for roadkill to actually get cleaned up. I'll trade someone dumb enough to harvest week-old roadkill for the roadkill getting cleaned up any day.

          3. "Fender to Table”

            That's good. Definitely brought a chuckle.

        2. By legalizing it you encourage people to pick it up and report it, however small that number is it improves SNR a bit. While roadkill numbers are usually small compared to total population it's not like the agencies responsible can count the actual population. They instead extrapolate based on reports. In Iowa roadkill reports are about 10000 per year and deer harvests are about 110000 per year, so it's not negligible. They also track location, so it helps to know where the deer are.

      2. Ok, thanks. Not sure what the intention is here. But to me it seems silly to have a law against eating roadkill as opposed to using it at one’s restaurant (sounds disgusting to me, but to each their own), and it seems doubly silly and impractical (and probably unrealistic) to think the type of person who would actually eat roadkill (has to be a small population, no?) would need to get a permit between hacking off the hoof of a deer from one’s car grill (flashbacks of the Goodfellas scene where they borrow a knife from Tommy’s mom) and grilling and consuming the carcas.

        Was there some significant problem with too much roadkill being eaten by scavengers or the homeless before 2021 that necessitated the 7th largest economy in the world to pass legislation on the matter?

        1. Eh, I've eaten road kill. In Michigan, getting to keep the deer was a kind of consolation prize for totaling out your car.

          1. The rule here is that as long as you got the license plate number of the car that hit it, it's fresh enough to eat.

            Bon Apitit.

  7. Hypothetically, the Justice Department could investigate Donald Trump. Charge him with crimes relating to the January 6 event at the Capitol, and put him on trial. Many Trump defenders insist Trump has a strong defense, because he can say that all he ever did was assert what he truly believes—that he won the election.

    A question for the lawyers: Assume if Trump is on trial that he will plead the 5th, and refuse to testify. If he does that, can his lawyer argue that he truly believed he won the election, or would that expose him to cross-examination?

    A question for Trump's fans: If he did testify, do you think he could avoid lying and destroying his credibility?

    1. I'm not sure you understand how trials work.

      1. Hence the question. Got an answer?

        1. A criminal defendant has an absolute right not to testify. They cannot be forced into waiving that by their attorney's arguments (which wouldn't be made until the evidence is closed anyway).

          1. Noscitur, first, I'm a little confused. Doesn't Trump's attorney get to say stuff to defend him before the closing arguments, or does taking the 5th preclude that? If he takes the 5th, does the defense part of the trial necessarily consist of an attorney who simply presents defense witnesses to refute prosecution evidence, while staying completely away from Trump's state of mind? Can a defense witness testify to Trump's state of mind if Trump is taking the 5th, and cannot be cross examined? Can a prosecutor object that a defense witness testifying about Trump's state of mind is against some rule of evidence?

            Second, if Trump has taken the 5th, after the evidence is closed, can a judge forbid mention in any closing argument by Trump's attorney about Trump's state of mind, given the prosecution's lack of opportunity for cross-examination?

            To put it another way, if a defendant takes the 5th, does that enable an objection during closing arguments that the particulars of his state of mind are not in evidence. I get that a defense attorney can always argue a presumption of innocence. It all seems to boil down to a question whether at any time during the trial that presumption can be supported in particular detail by lawyerly assertions which cannot be cross-examined.

            1. I think your mistake is that you seem to be under the assumption that evidence of a defendant (or anyone else's) state of mind is only admissible if it's direct evidence. That is not the law: state of mind can also be established circumstantially. (How else would the prosecution ever establish it.) That means that even if a defendant does not testify, a defense attorney can always ask the jury to draw inferences about what the defendant was thinking from the evidence other witnesses provided about what the witness did or didn't do. To preclude such an argument (to the extent it was legally relevant, of course) would be serious error.

              1. Noscitur, I see your point. But if the defendant is sitting there, and folks other than the defendant profess to describe his state of mind, why can't the judge say, "No, the best evidence of the defendant's state of mind is the defendant's testimony, which he is privileged to withhold. What the defendant chooses to withhold you are not empowered to suppose, and have that supposition treated as evidence. The jury is instructed not to draw any inference from the defendant's decision not to testify."

                Maybe we are not talking about the same thing.

                1. "No, the best evidence of the defendant's state of mind is the defendant's testimony, which he is privileged to withhold.

                  I think a judge who says that would probably be mistaken. The defendant is not likely to say, "I absolutely wanted to kill the bastard," even if that was his state of mind.

                2. For one thing, a judge typically wouldn't limit an attorney's ability to argue that the evidence supported a particular conclusion. Rather, it's the other party's responsibility to point out the weaknesses in that argument—which can include the fact that the other side could have called a witness to present much stronger evidence but didn't, suggesting that that witness might not have been so favorable after all.

                  However, there are special rules when the missing witness is a criminal defendant. While it's not an intuitively ridiculous position to think that they're remaining silent because the truth would hurt them, and it would be permitted to make that inference in a civil case, it's not permitted in a criminal trial, and the Supreme Court has held that such a rule is constitutionally required. See Griffin v. California, 380 U.S. 609 (1965), available at

                3. Are you going to apply the same rule to the prosecuton? No state of mind evidence if the defendant doesn't testify? You can't have one rule without the other, and you can't say only the defendant's testimony can rebut the prosecution witnesses. That would be sanctioning the defendant for not testifying and that is unconstitutional.

            2. Doesn't Trump's attorney get to say stuff to defend him before the closing arguments,

              No. You watch too much TV. Attorneys don't get make speeches in the middle of examining witnesses, or at trials, or the like. At the outset of the case attorneys can give a preview of what the evidence is expected to show. (Opening statements.) At the end of the case attorneys can give a summation of what the evidence did show, and can suggest inferences that jurors might or might not draw from it. (Closing arguments.) In between, attorneys ask witnesses questions. (Sometimes there will arguments over points of law during the trial, but those would be outside the presence of the jury.)

              can a judge forbid mention in any closing argument by Trump's attorney about Trump's state of mind,

              No. But, as I said a moment ago, the attorney can only argue about what the evidence showed or didn't show.

        2. Your question is "if he did testify." No lawyer in his right mind is going to allow Trump to testify, though I could see Trump overruling his lawyers and insisting on taking the stand.

          But if he did testify, no, I can't see him telling the truth or preserving what little credibility he still has.

          And I don't think it's relevant if he does or does not believe he won the election. That basically would be the OJ Simpson defense from when he was put on trial for the armed robbery: He thought the property was his, so he was just taking it back.

          1. Krychek, yeah, that is my second question.

            But my first question amounts to asking whether legal ventriloquism is permitted to introduce into testimony assertions about Trump's state of mind—while he sits protected by immunity on that question. For instance, can a defense lawyer produce Rudy Giuliani to say that his close relationship with Trump qualifies him to say Trump never believed anything except that the election was really stolen from him, and therefore his only motivation was a 1A-protected effort to proclaim that fact repeatedly?

            Perhaps my questions will strike lawyers as tangential to the normal expectations for trial procedures, or maybe just unfounded. I am asking them because I expect that any attempt to put Trump on trial would probably be countered by a systematic tactic to present the courtroom as a circus venue.

            1. Stephen, the problem is that nobody really knows what someone else is thinking, so no one can testify as to what someone else was thinking. Guiliani would be able to testify as to what Trump said, what his body language was like, what his state of mind appeared to be at the time -- but the ultimate question of whether Trump actually believed it would be something the jury would need to infer.

              But I'm not sure that line of questioning would be admissible anyway, because if you commit a crime, most of the time your motivation is irrelevant. The question would be whether the prosecutors would be able to prove that he committed a crime. His motivation might be relevant at sentencing, but not to the underlying question of whether a crime was even committed.

              1. Krychek, thanks for your help. Same to others. I do appreciate it.

              2. Guiliani´s testimony as to what Trump said, if offered by the defense, would be hearsay.

                Depending on what statute was charged, Trump´s state of mind would be an element of the offense. For example, 18 U.S.C. 1512(c)(2), which prohibits obstructing, influencing or impeding an official proceeding, requires that the accused act corruptly. The prosecution could offer evidence of Trump´s statements with no hearsay problem.

                1. Thank you, ng. That addresses a particular point I was wondering about.

                2. It’s not hearsay if it’s an admission against interest. And as for corruption going to state of mind, that’s true up to a point; I don’t think I can break into someone’s house even if I think he stole my stuff.

                  1. If it is an admission against interest, why would the defense be eliciting it? Statements of a party-opponent are non-hearsay, hence the prosecution can elicit the accused´s statements. The defense generally cannot offer the self-serving statements of a non-testifying defendant.

                    1. Because this is the Trump legal team we’re talking about. Because they’re so blinded by confirmation bias that they can’t imagine Trump making an admission against interest.

                      Now, do I think that’s likely? No. But it’s not impossible either. There’s a joke circulating that someone got a traffic ticket, hired Guiliani to defend him, and Rudy bargained it up to life with no possibility of parole.

                3. Guiliani´s testimony as to what Trump said, if offered by the defense, would be hearsay.

                  Excited utterance. Present sense impression. Then-existing state.

                4. That's not hearsay.

                  Guiliani could definitely testify to what he heard Trump say, and Trump's demeanor when he said it.

                  Hearsay would be if say a waiter in a restaurant overheard Guiliani describing his conversation with Trump. But direct testimony describing what someone themselves heard is not hearsay.

                  1. Hearsay is an out of court declaration, being offered to prove the truth of the matter asserted. If Trump´s statements were offered through someone who heard them, and the probative value of the statements depended on whether they were true, they are hearsay, admissible only if a hearsay exception applies.

          2. And I don't think it's relevant if he does or does not believe he won the election.

            Since Stephen Lathrop hasn't given any suggest of what statute he's hypothecating Trump would be charged with violating, I think it's hard to have a strong opinion on that one way or another.

            That basically would be the OJ Simpson defense from when he was put on trial for the armed robbery: He thought the property was his, so he was just taking it back.

            I really didn't follow the case that closely so I'll take your word for it, but that would be a bad argument because a claim of right doesn't generally justify an armed robbery. That doesn't mean it couldn't be a valid defense to other charges or conduct.

            1. I did have 18 U.S.C. 1512(c)(2) in mind. Also insurrection. Also Georgia vote tampering attempts. There seems to be an extensive menu of choices.

              1. The problem is the "corruptly". As I've said before, you can ask the prosecutor to drop your case, you can't bribe or extort him dropping your case.

                The difficulty here is proving that Trump was actually responsible in any legally cognizable sense for the riot at the Capitol. That he ordered it, orchestrated it. Because just asking Pence to do something doesn't cut it, he needs to have acted in an illegal manner to get Pence to do it.

                I've seen no evidence to that effect, for all that Democrats treat it as self-evident. And it would be strange if you could produce such evidence, because that riot was so contrary to his interests that only a madman would have thought it furthered them.

                As it was, it forced him to drop his effort to contest the election, and that it would was perfectly predictable.

                1. It takes a heaping helping of motivated reasoning and confirmation bias to say that. Trump and his minions entreated Pence to do something that he had no lawful authority to do, based upon palpably false factual premises. That seems to be indisputable, and it suffices to show that Trump was attempting/conspiring to corrupt Pence. It is no different in that regard from attempting to persuade a witness to testify falsely. In any event it presents a question for a properly instructed D.C. jury to determine whether Trump acted corruptly. If you removed your partisan blinders you would realize that.

                  The events of January 6 did not force Trump to drop his effort to contest the election. The failure to persuade courts in scores of lawsuits did that.

                2. And it would be strange if you could produce such evidence, because that riot was so contrary to his interests that only a madman would have thought it furthered them.

                  Wrong. Trump's underlying plan to steal the election — well, Eastman came up with several schemes, some of which involved Pence just declaring Trump the winner — was to get GOP legislatures in swing states to throw out the election and just award their electoral votes to Trump. In order to get the states to do that, Trump's team needed to buy time. And this riot was delaying the certification. (Remember, one of Rudy's misdirected voice mails expressly described this strategy, and begged his intended audience to keep stalling rather than reconvening to continue the certification.)

                  1. Eastman has stated that he would assert his privilege against self-incrimination if called before the January 6 House investigating committee. He may have good reason to do so.

                3. "Because just asking Pence to do something doesn't cut it, he needs to have acted in an illegal manner to get Pence to do it."

                  Oh? Did he ask Pence to do something that was legal or illegal? Be careful...that's a loaded question

                  1. The federal courts have recognized that acting corruptly can be either transitive or intransitive. Trump did both. His importuning Pence to commit an unlawful act was a transitive attempt to corrupt another person. His doing so in service of the Big Lie that he in fact won the election evinces intransitive corruption.

          3. "No lawyer in his right mind is going to allow Trump to testify,"

            Any lawyer that represents Trump, certainly at this point, would be of questionable sanity to begin with.

            1. Or perhaps just bored?

            2. Point taken. And I think the first rule of representing Trump is get paid up front.

            3. "Any lawyer that represents Trump, certainly at this point, would be of questionable sanity to begin with."

              I disagree with that. Yeah, the numerous LOLsuits attract only attorneys of marginal competence, but my understanding is that those suits are so far fetched that the chances of prevailing are nil. Successful lawyers are reluctant to take cases that are sure losers.

              OTOH, a criminal prosecution would give the defense a very good chance at winning, so competent attorneys would be much more willing to take it. And since it would be such a high profile case I would imagine that there would be many takers who are actually quite skilled defense attorneys.

              My $.02.

              1. Trying Trump before a D.C. jury is an uphill struggle. And Trump has a history of not paying the freight, including with his lawyers.

    2. I'm not sure how you believe that he even needs to argue that he truly believed he won the election; In order to charge him with those crimes, don't they have to develop some evidence he committed them, in the first place?

      1. It's a hypothetical, Brett. Based on the notion that an investigation turns up evidence. The prosecution produces massive, irrefutable evidence of crimes committed at the Capitol. They present powerful circumstantial evidence linking Trump to those crimes—maybe stuff proving that there was some kind of Trump-related apparatus at the Willard Hotel, with which Trump was in repeated real-time communication while the Capitol was attacked, plus a lot of other communication-related stuff that puts him at the center of an apparent web of control. That gets presented along with many instances of video, showing Trump himself saying things which in hindsight look like encouragement for what happened, and which seem to disclose long-term planning to provoke his base to attack if he loses. The prosecution adds the Georgia phone call, and discloses a Republican plan, including Reps and Senators, put together under Trump's direction, to delay the vote certification in Congress, which may be a crime by itself.

        It starts to look overwhelming, and Trump's lawyers want to defend him by asserting he had a 1A protected right to do all that, because he really believed the election was being stolen. Got it?

        So then you have the question. Can the lawyers make that case for Trump, offering a defense based on his state of mind, without exposing him to cross examination? I ask the question because I would like to get an answer from someone who can say with legal authority what the answer is.

        1. Aren't there other web sites that are happy to host your terribly written, utterly unrealistic fiction?

        2. I think Noscitur a sociis answered the question above. The defense attorneys would be free to make whatever assertion they wanted about the defendant's mental state without jeopardizing his 5th amendment rights. The jury would be free to disregard those assertions if not backed up by some kind of evidence.

          As to your second question, no I don't think he is capable of testifying without lying, but his "credibility" would remain unchanged since everybody's opinion on that matter is already made up.

          Anyway, this is all hypothetical since it's highly unlikely that he'll be criminally charged for his actions surrounding the Jan 6th insurrection.

          1. Barring unrevealed evidence, none of his actions surrounding the January 6th protests and riot were criminal in nature to begin with.

            One can always imagine that he was pulling the strings behind the scenes, but no evidence of that has surfaced. And it would have been remarkably stupid, the riot ended his effort to contest the election, and predictably so.

            Only Trump's enemies gained anything from the Jan 6th break in at the Capitol, which is why I suspect it was a Reichstag fire.

            1. Brett, when I feel the urge to discover where a sudden outbreak of synchronized right-wing talking points is coming from, I tune in Fox News to find out. It delivers reliably.

              If you want to keep up with breaking news about accumulating evidence against Trump, I recommend you tune in to MSNBC's coverage of the House investigation. Not that I am suggesting I think the House investigation is exemplary, or even well-covered, but at least you wouldn't be so benighted in your expectations.

              1. Well, sure, MSNBC is a pretty good source of Democratic party talking points, just as FOX will feed you the GOP establishment line.

                But I thought we were discussing legal charges, not talking points.

                1. Brett, the House seems to be leaking selected bits of evidence, through MSNBC. Want to stay current? Tune in. Rachel Maddow might be your best bet.

                2. With comments such as this:

                  "Only Trump's enemies gained anything from the Jan 6th break in at the Capitol, which is why I suspect it was a Reichstag fire."

                  You are not discussing anything other than batshit-insane stupidity.

                  Your choice to stay ignorant of the truth regarding January 6th, 2021 is an active one, because plenty of documents, trials, videos and other evidence has been in plain sight for literally almost a year now.

                  1. Yes, the evidence is in plain sight. The FBI was running people like Ray Epps, giving them money and direction on what mayhem to organize and foment. The FBI is creating Three Percenter and Oath Keeper branches, while denying that Antifa cells are organizations. It's not hard to read between those lines.

                    1. Dammit, Michael P . I had real respect for you. Why would you say conspiratorial garbage like that?

                    2. It would be a nice change if you developed a sense of shame and stopped posting stupid bullshit you read on Facebook.

                      Try checking your 'facts' before commenting again, or just don't open your mouth at all.

            2. which is why I suspect it was a Reichstag fire.

              That is delusional. Aside from the mountains of evidence to the contrary, ask yourself this:

              If Trump didn't like it why didn't he immediately tell his supporters to withdraw from the Capitol, that he heartily disapproved of their actions and the insurrectionists should be arrested and charged?

              Why did he tell the "false flaggers" he loved them and that they were very special people?

              Get over it, Brett.

              You beclown yourself with crap like that.

              1. Why didn't he immediately respond? Maybe because he didn't believe his supporters would do that. They had never before acted like Antifa rioters, so why would they have started then?

                Why did he tell them to go home? Perhaps because he realized they had been baited into action by agents provocateurs.

        3. The defense could attempt to show through witnesses other than Trump that he in fact won the election, however ineffectual that proof would be. The jury would be instructed to draw no inference from the defendant´s failure to testify, and the court would not preclude argument based on circumstantial evidence of Trump´s state of mind.

      2. One more federal court has opined that the January 6 session of Congress to certify the electoral vote count is an ¨official proceeding¨ within the meaning of 18 U.S.C. 1512(c)(2). That statute provides that anyone who corruptly obstructs, influences, or impedes any official proceeding, or
        attempts to do so is subject to up to twenty years in prison. Conspiracy to violate the statute is subject top the same penalty.

        Separate and apart from any vicarious liability for the conduct of those who breached the Capitol, Trump and his minions importuned the vice-president to unilaterally reject the electoral votes of several states -- authority which the vice-president did not lawfully have. There is overwhelming evidence that Trump lost the election, such that he knew there was no factual basis for his entreaties to Pence to violate the law.

        If only Merrick Garland had the stones to prosecute.

        1. Seems like Garland is trying to stay as far as possible from the notion of a political prosecution. Problem is, that's sort of at cross purposes with an obligation to deal with a political crime.

    3. Neither a lawyer nor a Trump fan - but I think that Trump in a witness box would be a prosecutor's delight and a defense counsel's nightmare. Oh, the humanity!

      1. Indeed. That’s why they kept Trump from testifying at his impeachment.

        1. They kept Trump from testifying because the interests of Congressional Republicans and Trump weren't at all the same.

          1. No one kept Trump from testifying in regard to the impeachment non-trials. The fix was in from the get go.

    4. "Many Trump defenders insist Trump has a strong defense, because he can say that all he ever did was assert what he truly believes—that he won the election."

      You should stop listening to the voices in your head.

    5. Trump did nothing wrong.

    1. 42

      Oh, sorry, different question.

  8. The Volokh conspiracy is getting hard to read on a phone because bloggers are putting too much of the article before the break. It's a long way of scrolling between articles. I deleted the easier-to-navigate Reason mobile app because the fast-flashing animated ads it kept showing made the site literally unreadable for me.

    1. I'm surprised flashing ads are as popular as they are.

      They can easily become a nuisance, causing me to leave a site.

      1. The problem is that digital ads are so cheap that they don't need to be very effective at all. Making them annoying so that they're noticed pisses off most people, but if it results in a few people who notice them making a purchase, it's cost effective.

    2. It is pretty rough. Scroll down, the entire background is white. Wait 10 to 30s for ad sales to finish and download, only then get to see the text.

    3. Hard to read on a desktop or laptop too. The classic VC (prior to the move to Wapo) used the break extensively with typically only a paragraph or two on the main page. Now I have to scroll past nineteen wordy Blackman posts to read the ones I'm interested in.

      Call me "conservative" but I liked the old way.

      1. I don't think I have ever seen anyone familiar with the pre-Wapo VC who did not prefer it.

        1. Not the least because the commentariat was composed of grownups.

          1. No. I posted there too.

  9. A Kim Potter juror just gave an interview saying the jury felt that Potter had made an "honest mistake" but still needed to be held accountable.

    Um...isn't that what TORTS are for? Indeed, "honest mistakes" can justify firings, lawsuits, and social judgement. But are there seriously no mens rea requirements that are universally required for *crimes* (much less "manslaughter")?

    1. Kim Potter was convicted of two crimes, both of which had mens rea requirements: one required proof that she acted recklessly (in handling her firearm) and the other required proof that she acted with culpable negligence (in causing another person's death). The former means that she knew there was a substantial and unjustifiable risk of endangering another person and acted anyway; the second means that a reasonable person would have perceived a substantial and unjustifiable risk in the circumstances. I agree that the evidence tends to suggest that she made an honest mistake (i.e. that she genuinely did not intend to shoot the victim), but I don't think that is in any way inconsistent with finding the applicable mens rea here.

    2. I disagree. Manslaughter (as opposed to murder) specifically means you didn't carefully think things through before causing someone's death....but you should have. Randomly picking a weapon without regard to its lethality, and then using it on someone, seems to me a level of negligence at least as severe as chancing a steep hill with bad brakes on your truck, which got a guy 100 years recently

      Suppose I decided to go around with two identical guns in my belt, one unloaded and one loaded. Maybe I just depend on which one is on the left, or maybe I put a tiny colored sticker on one of them to tell which is which, or maybe I make a scratch on one of the grips. Then one day, oopsie, I shoot someone.

      I can't simultaneously claim that I made a mistake but that I'd also taken sufficient care to ensure I didn't make a mistake. If the little sticker wasn't enough then relying on the sticker is criminally negligent. If the sticker was enough to prevent mistakes, then the shooting must not have been a mistake.

      If Potter really couldn't tell the difference then going out on patrol was equivalent to going driving when you know you're impaired, which is prison if you kill someone. If she could tell the difference that's even worse.

      1. which got a guy 100 years recently

        The relatively good news is that the sentence was reduced to 10 years today. Still absurdly high, but not obscenely high.

  10. What do Volokh readers see as the probability of an Article V Convention of the States?

    Might Congress simply refuse to recognize state petitions for such a convention? What would happen then?

    Would such a convention be limited to just a single subject matter? Or alternatively, could multiple amendments be discussed and voted upon?

    Whistling Willie

    1. I think the odds of enough states calling for one in the next decade are fairly high, but, yes, I expect that Congress would refuse to recognize the petitions.

      Seriously, it was a bad design, routing the Constitution Convention through Congress, even in a ministerial manner. It's a means of circumventing Congress, after all, and Congress doesn't WANT to be circumvented! It would have been much better to just state that any amendment ratified by the requisite number of states with identical language was effective, without regard to source.

      Currently the states tend to write petitions that purport to limit the reach of the convention, and this makes it easy for Congress to refuse to add them up to 38, because they tend not to have the same language.

      It will take things getting desperate enough that the states stop trying to control the topics the Convention considers, (A futile effort, deciding what amendments are needed is the convention's job!) and adopting uniform language, to make it hard for Congress to thwart the push.

      At that point I suspect they'd up and declare that there could be no better delegates than the membership of Congress, or something of that nature.

      1. Agree with Mr. Bellmore. The chances are increasing by the year. More low-population states are getting kookier and they may yet get a 2/3rds. And if you get 2/5ths of the country telling the other 3/5ths whats what, the republic will be finished. But it's like some have opined, once the convention gets started there may not be any limit on the proposals. Every lib-owning amendment dreamt of could be fair play.

        No party, none, in this climate of political rancor should be allowed to touch the Constitution.

        The fact that Mark Levin, Greg Abbott, and Ben Shapiro support this tells you it is a very bad idea. And its a shame about Shapiro. Although I still feel he's always the sharpest cookie in the room. When he sold his soul and integrity for a paycheck a couple of years ago, he lost me forever.

          1. Don't get me wrong, he's always been a mean SOB. But he was anti Trump on principles until his audience wasn't. Then suddenly he wasn't. Exit spine.

      2. Your suggestion in the second paragraph would have been way cleaner and less ambiguous. But the drafters had a good dose of humble self-awareness and probably didn't want to say their convention would be the last one for all time, so they proposed an orderly way to have another one.

      3. I think the odds of enough states calling for one in the next decade are fairly high,

        No. It takes two thirds of the states. No party is going to control both houses of 2/3 of the state legislatures.

        but, yes, I expect that Congress would refuse to recognize the petitions.

        Also no. This is even dumber. If one party did control both houses of 2/3 of the state legislatures, that party would control Congress also.

        1. But a constitutional convention isn't meant to address topics the two parties disagree on. It's meant to address topics where the federal government disagrees with the states.

          It's an end run around a Congress that won't originate needed amendments, by the states that think them needed.

          This doesn't map perfectly onto party divisions.

          1. A constitutional convention is meant to address whatever the hell the delegates think they can get the sovereign People to ratify, assuming any ratification procedure can even be agreed upon.

    2. What do Volokh readers see as the probability of an Article V Convention of the States?


    3. Two parts are required - enough states making the request and then Congress obeying it.

      The first part depends on how you count. Is the requirement is identically worded resolutions all passed within a few months period? Or at the other extreme, do we count all calls for a convention, regardless of subject or wording, made since 1788, with no take backs allowed?

      Congress will decide which way to count, and they are likely to take the most restrictive view possible and latch onto any excuse they can find not to call a convention. One argument would be that if there has been a new legislative election in a state, the previous legislature's request has "expired", and that the calls are therefore expiring faster than they're getting made. Another would be that the provision somehow violates equal protection and is therefore superseded by the the 14th Amendment. Or they could tie it up for decades by court challenges to how the calls were passed in each of the 34 states, one after the other. Or they could baldly state that the idea of a convention is outdated and no longer in effect. Those are all BS but I'm guessing many members of Congress would use them if they had to.

      Short answer, therefore, is that it won't happen.

      1. The next step after them doing that, is the states just holding one anyway.

        1. One would like to hope we have enough sane people left that when it got to around 32 or 33 states making calls that could reasonably be said to have the same purpose, there would be some kind of negotiation. Representatives from the (potentially) 33rd and 34th state legislatures would state, perhaps in open letters, that if Congress proposes an amendment that addresses their concerns they would hold off calling for the convention.

          I'm afraid there aren't enough reasonable people left. Congress has members that openly talk about ways to bypass the clear intent of the constitution, and state legislatures have members that think a runaway convention would be cool.

          1. There would be much less interest in amending the Constitution, frankly, were the Constitution as it is now followed more strictly. Most of the push for constitutional amendments is due to the radical shift in power between the states and the federal government that has taken place over the last 80-90 years.

            We've gone from amendments being needed to change the Constitution, to amendments being needed to put it back the way it was before.

      2. All the commenters who suppose Congress would somehow control or constrain a constitutional convention should reflect for a moment on the revolution they posit. Under existing American constitutionalism, Congress is subordinate to the sovereign People. The Constitution is the People's decree, constituting government. Thus, the government, including the Congress, is subordinate to the Constitution, and does not enjoy power to constrain the will of the People. Supposing Congress can dictate anything to a constitutional convention turns upside down all those accustomed principles of American constitutionalism.

        1. Oh, I absolutely agree about that. I'm just saying they'd try anyway, because THEY don't view themselves that way.

          The only relevant factor in their minds would be that a convention would likely originate amendments they didn't like.

    4. WW, the moment a constitutional convention convenes, any notion of limitations is gone. It cannot be that a body enjoys power sufficient to create a government from scratch—at pleasure—but somehow is not empowered to do this or that particular thing. Whatever power could constrain a constitutional convention to a particular agenda has already proved that it has power superior to the convention, which is a deal-breaking contradiction. By the inference that some behind-the-scenes power constraining the convention could control its agenda, that control would deprive of legitimacy any constitution which resulted.

      Convene a constitutional convention and it will make its own rules about everything—when it starts, the place where it sits, the credentials of the delegates, who officiates, the schedule, the agenda, the voting procedure, when the process stops, and what, if any, the ratification procedures will be. It short, it will proceed the same way the last constitutional convention did.

      Because a constitutional convention requires from the populace such an extreme degree of unified reliance on its powers, it is a dangerous method to choose to try to help a divided populace mend fences. To undertake that task under such ill-suited premises would nearly guarantee the collapse of government, and promise little or nothing to replace it.

      Hardly anything could be more dangerous. We can at least hope that means it is highly unlikely that any such folly would occur.

      1. Well, we agree about the nature of the Convention. The only power Congress has over it, is whether ratification will be by legislation or convention. (Nobody has much idea about how the latter is even supposed to work, which perhaps affords Congress some opportunity for mischief.)

        Once convened, IT decides how it will proceed, and what sorts of amendments it will originate. That's the convention's very purpose, to make those decisions, so it can't be constrained in them.

        I guess the only disagreement is over whether the situation is dire enough to justify the risk.

  11. Former President Trump´s lawyers have filed a supplemental brief with the Supreme Court complaining that the House January 6 committee, which is seeking production of documents from Trump, is considering whether to make a criminal referral to the Department of Justice concerning Trump´s conduct. That objection is unavailing.

    Per the Court of Appeals opinion of which review by certiorari is sought:

    On June 30, 2021, the United States House of
    Representatives created the Select Committee to Investigate
    the January 6th Attack on the United States Capitol. H.R. Res.
    503. The House directed the Committee to (1) “investigate the
    facts, circumstances, and causes relating to the domestic
    terrorist attack on the Capitol, including * * * influencing
    factors that contributed to” it; (2) “identify, review, and
    evaluate the cause of and the lessons learned” from the attack,
    including “the structure, coordination, operational plans,
    policies, and procedures of the Federal Government, * * *
    particularly with respect to detecting, preventing, preparing for,
    and responding to targeted violence and domestic terrorism”;
    and (3) “issue a final report to the House containing such
    findings, conclusions, and recommendations for corrective
    measures * * * as it may deem necessary.” Id. § 4(a). Those
    “corrective measures” include “changes in law, policy,
    procedures, rules, or regulations” to (1) “prevent future acts of
    violence * * * targeted at American democratic institutions”;
    (2) “improve the security posture of the United States Capitol
    Complex”; and (3) “strengthen the security and resilience” of
    the United States’ “democratic institutions[.]” Id. § 4(c).

    Plainly there is a legislative purpose for seeking the subject records. If, incidental to that legislative investigation, facts suggesting criminal conduct are developed, a referral for criminal prosecution -- which is not itself a prosecution -- poses no separation of powers problems. The Executive Branch makes the decision whether to prosecute or not.

    1. Plainly there is a legislative purpose for seeking the subject records. If, incidental to that legislative investigation, facts suggesting criminal conduct are developed, a referral for criminal prosecution -- which is not itself a prosecution -- poses no separation of powers problems.

      Well, I take their point to be that there isn't a substantial legislative purpose, and that the committee is in fact conducting a pretextual fishing expedition for the purposes of uncovering criminal activity.

      On the other hand, it's not clear to me that there's a judicial (as opposed to political) remedy if that is what's happening, and less clear why the architects of the subterfuge would tell the Washington Post about it.

      1. The Department of Justice needs a kick in the seat of the pants to proceed here.

        1. If you think blatantly political persecutions are just what the country needs right now, maybe.

          Most of us think we are already close enough to a banana republic that we don't need to go further down that road.

          1. Trump and his minions need to be held accountable for their misconduct. Failure to do so undermines the rule of law.

            1. How did you feel about BHO's decision not to prosecute Bush II administration officials for running torture camps?

              And at least two, probably more like five, presidents were guilty of fabricating pretexts to conduct wars of aggression. That's generally been a capital offense for those found guilty.

              A strict constructionist would say every president for at least the last 90 years has been guilty of illegally asserting authority not granted by the constitution. Ought to be at least a little prison time, no?

              I suppose the line one could draw is misconduct interfering with peaceful transfer of power. But even then, where's the line? Does it have to be something at the 1/6 level, or are the dumb lawsuits and misinformation campaigns covered too? Because if you are going after those there are many violators in both parties we could name.

              1. Is tu quoque all you have? Past omissions are not germane to letting Trump and Company get away with their transgressions.

                1. It was an honest question. Some named "not guilty" should maybe not presume bad faith all the time.

                  Anyway, I think about half of the presidents in my lifetime were good candidates for prosecution. Certainly Nixon, Clinton, and Bush II. Probably Johnson and Trump.

                  1. Heck, I'm wondering why you omitted Reagan from that list. I'd totally have prosecuted him for Iran Contra, much as I liked him.

                    I think you could easily justify impeaching Trump over Jan. 6th, or invoking Section 3 on him, if you could prove he planned and directed that break in at the Capitol. But there's been no evidence that he did.

                    Their theory that Pence was entitled to refuse to count slates was highly dodgy, but our government runs in large measure on equally dodgy doctrines today. I don't think it was dodgy enough to justify impeachment or disqualification, unless you're going to be taking out something like half the current government.

                    For instance, why hasn't Congress expelled the members who approved of and helped incite the last couple years of urban riots?

            2. "Trump and his minions need to be held accountable for their misconduct. Failure to do so undermines the rule of law."

              Usually someone is "held accountable" for a specific action taken upon a time and place.

              What specific action, upon what date and time, would he be held accountable for? Don’t just name a category of action. Lay out the exact thing done, at the exact time, and tell us the law it violated. And tell us why we should believe it happened as you say.

              Otherwise you’re just another guy chanting Lock her up!.

              1. Ah yes.

                I well recall your criticisms of those yelling "Lock her up."

                1. I never thought she should be locked up.

                  1. I only thought she should be locked up after a full trial with the right to a jury and normal adversarial process. That there was enough evidence out there to convict if you could get past the political hurdle of prosecuting.

                    Anybody who was a "nobody" would have been prosecuted in her place. She had the "important people don't get prosecuted" card to play.

                    1. You're fine with calling her a felon, though.

                    2. Her email server alone was good evidence of several felonies. The FBI recognized this, judging from how many immunity agreements they handed out.

                    3. "Her email server alone was ..."

                      pretty yikes. And then Colin Powell said he had done the same. Which is also yikes, but it seems less reasonable to start indicting people for what might have been a common practice.

                      (And I sure hope they have come up with some more secure way for a SecState to have private conversations)

                    4. Of course I'm fine with calling her a felon. Last time we went through this, I pointed out several legal dictionaries agreed that a "felon" was somebody who'd committed a felony, not just somebody who'd been convicted of one.

                    5. Even had she been convicted, locking her up doesn’t really help anyone.

                      A sentence of probation and keeping away from government so as not to be allowed to repeat the crimes would have been fine.

                    6. If you're so sure, Brett, why the due process? Seems a waste of time since you got the inside track here.

                      You're being inconsistent making an exception for rhetoric.

                    7. Absaroka- There were several relevant differences between those casees, including that Powell actually used his official email account. He didn't set up a private server and use that exclusively, and I don't think anyone said he passed highly classified information over the open Internet or on an unauthorized system.

                    8. Anybody who was a "nobody" would have been prosecuted in her place.

                      False. Even if she did negligently mishandle classified information, that is routinely handled administratively (termination, revoking security clearances) unless there is an added factor, like obstruction of justice.

                    9. "If you're so sure, Brett, why the due process? Seems a waste of time since you got the inside track here."

                      Wow, that's a stupid question.

                      I'm not a left-winger, that's why. I think even people I believe obviously guilty are entitled to due process before you move on to punishing them. Has anything I've EVER said suggested otherwise?

                    10. "Even if she did negligently mishandle classified information, that is routinely handled administratively (termination, revoking security clearances) unless there is an added factor, like obstruction of justice."

                      Easily covered by the server being wiped.

                    11. Easily covered by the server being wiped.

                      Nope; the server was wiped before there was an FBI investigation.

              2. The violation that I think would be easiest to prove, which I have specified in other comments, is Trump and his minions, including John Eastman and others, importuning Pence to unilaterally reject several states' electoral votes in the lead up to the January 6, 2021 certification of electoral votes. Pence had no authority to do that, and Trump´s entreaties were based on the demonstrably false proposition that Trump won the election. That evinces attempting and/or conspiring to corruptly obstruct, influence or impede an official proceeding in violation of 18 U.S.C. 1512(c)(2) and 1512(k).

                Pence would be the star witness for the government, and Trump would have no defense.

                1. "Corruptly influence" has a specific meaning. How does it apply? Do you have evidence or any reason for anyone to believe that Trump offered to bribe Pence? What’s corrupt about it?

                  Congrats on having an opinion about Pence's constitutional role.

                  1. A bribe is not required. The act of entreating Pence to commit an act which he had no authority to commit, based on a false factual premise, was an attempt by Trump (and his cohorts) to corrupt Pence.

                    There is a large body of federal decisions construing statutes which require a criminal defendant to act corruptly. Three district judges have opined in cases of January 6 defendants charged under section 1512(c)(2). The common thread in these decisions is a wrongful act knowingly committed.

                    1. Except (1) it was not committed, (2) it’s only a "wrongful act" in your opinion. There’s no legal precedent or ruling or saying it’s "wrongful".

                      It plainly doesn’t fit the description of "corruptly influence" unless you thirst for orange man blood.

                    2. Ah yes, the 'do they give a nobel prize in Attempted Chemistry' defense.

                      It also appears you are defending 'The act of entreating Pence to commit an act which he had no authority to commit, based on a false factual premise' as legal, because there is no legal precedent. Sounds very QI to me!

                    3. Random dudes’ opinions about procedural rules don’t create crimes.

                    4. Pence, to his credit, resisted the entreaty. But the attempt to influence itself was criminal, as was the conspiracy. It would be up to the prosecution to show that there is no lawful authority for Pence to unilaterally reject the electoral votes, which I am confident they would have no trouble doing.

                    5. So the gist of the argument is "I’m confident". Can’t argue with feelings…

                2. Additionally, had Pence gone ahead, it would simply have been part of the process. It would not have been punishable as obstructing or impeding the process.

                  You want to criminalize conversations about how procedures should be conducted.

                  1. Yeah, and those Nazis were just following duly promulgated orders.

                    1. No orders. Also Godwin violation. If you don’t have anything substantive to offer, being quiet is a good choice.

                  2. Unfamiliar with the concept of inchoate offenses, Ben?

                    1. What if you were able to stick to the topic instead of trying to change the subject to focus on the people talking about it?

                      Since Pence's actions would not be a crime, asking Pence to do it isn’t a crime. Bribing Pence to do it is, but not asking.

                    2. Now you are just making shit up. Importuning Pence to disregard lawful authority, based upon a demonstrably false factual premise, is a wrongful act. It evinces a corrupt attempt to influence an official proceeding.

                      Can you cite any authority that the vice-president is empowered to unilaterally reject a state´s electoral votes? His doing so may not have been criminal -- Congress had no reason to think anyone would be that brazen inn the performance of a ministerial function -- but that does not mean Trump did not act with consciousness of wrongdoing in attempting to persuade Pence to disregard legal duties.

                    3. That’s good enough to convince rabid Trump haters.

                      Criminal prosecutions have reasonable doubt though. No need to convince anyone that Pence had that authority. You need to prove that everyone involved knew for a fact that Pence did not.

                      It’s currently an open question whether Pence did or did not have that authority. There are opinions but no final answers.

                    4. It would be up to twelve properly instructed men and women of the District of Columbia to determine whether Trump and his cohorts acted corruptly to influence the certification by Congress of the electoral vote count. All that is necessary is a Department of Justice with the fortitude to prosecute the charges -- which I doubt that we have.

                    5. Defense would be extremely easy: have some legal experts testify that Pence's actions, had he taken them, would have been proper. That should be more than enough for reasonable doubt.

                      If your plan is to stack the jury with haters and bigots and deranged Orange Man Bad types from DC, then it's a plan to corrupt justice for political ends.

                    6. The governing statutes are here. Section 15 is the relevant portion. Nothing therein empowers the President of the Senate to reject electoral votes; resolving any objections (which requires the signature of at least one Senator and at least one House member) is the province of the respective houses of Congress.

                      The maxim of interpretation expressio unius est exclusio alterius applies. The explicit mention of one thing is the exclusion of another. The absence from the governing statutes of any mention of authority for the vice-president to unilaterally reject votes is dispositive.

                      I am not sure that expert testimony as to the state of the law would be required or perhaps even admissible. The risk of confusion of the issues is great and would substantially outweigh any probative value under Fed.R.Evid. 403. The trial judge is the jury´s source of the law. If and to the extent that it is permitted, both sides would have experts available, and the jury would determine whom to believe. Cross-examination of such an outre theory as Trump´s defense would be propounding would be brutal. An ethical lawyer, with a duty of candor to the tribunal, might even face professional disciplinary consequences for supporting such a bizarre theory.

                    7. The lawyers who furnished advice to Trump may have criminal exposure themselves as co-conspirators under 18 U.S.C. 1512(k). John Eastman, for example, has stated that he will assert his privilege against self-incrimination if called before the House committee investigating the events of January 6.

                    8. Even if that were correct, you’d still need to prove that the people discussing it knew and undershoot it at the time.

                      Jurors don’t have that knowledge and understanding about the specific procedures. Reasonable doubt that others had that specific, clear understanding is a really low bar.

                      What would be the evidence that those individuals understood all the laws and procedures in detail enough to make talking about some other plan a corrupt conspiracy? Any evidence at all?

                    9. Good for Eastman. Everyone should assert every legal way to thwart those charlatans from putting on their clown show.

                    10. How many jury trials have you done, Ben? Showing reasonable doubt is no easy task, especially when the underlying facts are undisputed. When and where did you get your legal training, if any?

                      Your failure to discuss 3 U.S.C. 15 is telling. A jury is capable of applying that statute according to its plain language, under the direction of the trial court. You seem to be positing that ignorance of the law is an excuse for breaking it.

                      If expert testimony were permitted -- and Fed.R.Evid 704(b) precludes opinion testimony in a criminal case about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged; that matter is for the trier of fact alone -- the government could present scads of rebuttal expert testimony that no reasonable person would rely on the advice Trump was receiving regarding section 15.

                      Of course, if Trump testified and subjected himself to the crucible of cross-examination, it would not be a pretty sight.

                    11. Suddenly not so voluble, Ben?

          2. You know what's worse than political prosecutions? Political crimes without prosecutions. Sometimes you just have to suck it up and get on with doing the right thing.

            1. Yup, which is why so many people were upset about Hillary Clinton skating just because she was a candidate for office.

              Sauce for the goose, etc.

            2. "Political Crimes" 🙂

              1. Yeah, Ben, like trying corruptly to overturn a certified election result.

                Here is how it works:

                An election is a political process.

                A crime committed against the election process is a political crime.

                Too hard?

                1. Do people "convicted" of "political crimes" go to the gulag in this story?

          3. The number of people you're qualified to speak for, if you allow for rounding up and ignore "qualified" is precisely one.

        2. The Department of Justice needs a kick in the seat of the pants to proceed here.

          No. They need probable cause.

    2. "Plainly there is a legislative purpose "

      What? Everything they are investigating is already illegal.

      Its political and pre-textual.

  12. A comment thread with commenting disabled is very Zen.

  13. Here’s one man's account of living in the Bay Area and deciding, finally, to leave:

    He's not a partisan.

    Is it possible in America for people to learn from events? What percentage of people can learn? Is it enough people to improve anything, or just a few who can learn enough to escape from the masses who can’t?

    Presuming it’s enough people to improve things, what would they learn?

    1. 'Here is an anecdote I agree with.'
      'It is possible for all of America to learn and thus agree with a smarty such as myself?'

      I even personally agree with the underlying thesis that California is sucking right now due to it's peripatetic leftism.

      But have some humility.

      1. Should I put you down for a No, no we can’t learn anything?

        Pretend to be someone who wants things to be better for once (instead of just a mud thrower). What would that person wanting improvements think about changing?

        1. I learn stuff all the time. Sometimes even on this blog. They just don't bring me closer to your constant partisan ragapalooza.

          What about your take on policy analysis and the impacts of maintaining the status quo is flat wrong, and you refuse to learn about that?
          Or how you think the administration progressive policies doesn't pay attention to costs as well as benefits, and yet you refuse to look into those actual analyses?

          Physician, heal thyself.

          1. It’s not about you but ok.

            1. This is a lame dodge. The comment I was replying to was about me.

              And your comment I took issue with was all about everyone coming around to align with *you*. It's not all about your point of view.

              Again, have some humility.

              1. Not about me either.

                What if someone wanted things to be better? Any ideas what they might do?

                We know you’d ignore the issue, make noise, and point fingers at the people who ask the question.

  14. I have been listening to Prof. Eric Segall's podcasts 'Supreme Myths,' and really enjoying them. He has many guests who do not share his mostly liberal views, and it is always entertaining. Does anyone have any other law podcasts to recommend? I do enjoy Will Baude and Dan Epps 'Divided Argument' podcast also.

    1. Baude's Dissenting Opinions is *great*.

      Radiolab had 'More Perfect' that took a human interest angle on some well known cases like Baker v. Carr and Batson.

      1. Do you know of any forums that, irrespective of the blogger(s) politics, left or right, resemble what these comment threads use to be, i.e., relatively balanced, informed and civil?

        1. I read 12-15 sources a day. Left and Right. I absolutely need a right-leaning group that doesn't devolve into name calling and conflict. Used to be National Review 10 years ago. Now it ain't. This blog is about as close to normal and stimulating as I can hope for. So to me, this is a good group

          1. I agree completely. That's why I started coming here, and why I'm still here. Every once in a while I have to just stay away from the comment section for a while. Although the mute option makes things a lot more bearable.

        2. Maybe a discord - they're pitched for smaller, more curated membership.

          But I haven't even found one of those like the 2008 VC yet.

          1. You either don't curate, in which case you have to wade through the loons, or you do curate, in which case all dissent ends up ruthlessly suppressed by people who think only loons dissent from the party line.

            I prefer the compromise here, where there's no curation short of actual spam, but individual people can mute commenters they find too offensive, while leaving their comments visible to anybody who doesn't share that opinion.

            I've seen too many sites start down the moderation road, and swiftly end up ideological monocultures that fall into a pit of insanity due to no dissenting voices being permitted. Crooked Timber, for instance, used to host the most interesting cross-ideological debates, today it's a left-wing lunatic asylum.

            1. " I prefer the compromise here, where there's no curation short of actual spam "

              You forgot -- or declined to acknowledge -- the repeated, partisan censorship imposed by the Volokh Conspiracy.

              What is to blame for this faulty memory? I have a couple of thoughts. I will be gracious enough to omit them. Happy New Year!

            2. I liked the culture in 2008 better.

              To be fair, you're quite the ideological outlier, and I am not. So moderation tends to align with my view more than yours.

              1. Eh, you're less of an ideological outlier relative to the moderators at most sites, than you are relative to the general public.

              2. Obviously, if only based on my inquiry, I share Sarcastro's preference for the VC culture circa 2008. But ideology's the least of it. True, curation is inversely proportional to fringe viewpoints, so the ideological bell curve has flattened. Brett's POV, which was fringe in '08, is now pretty much the mainstream.

                But while I don't find that optimal, it doesn't really bother me. My real complaint is twofold: first, uncurated threads are fertile ground for extreme incivility, which has become the norm here. That's objectionable in itself, but it also leads to my second complaint: incivility drives out a lot of good content and attracts the very worst.

                So it's not so much that this place has taken a hard turn right over the last decade or so, which it has. It's that it's become, relatively, a dumbed-down cesspool. It may still be better than most of what's out there, but it's a real shame to have lost what it used to be.

              3. "Brett's POV, which was fringe in '08, is now pretty much the mainstream."

                In some areas, sure, but only because I was always mainstream, and the pre-internet system of preference falsification has fallen, allowing people who agreed with me to realize that and become outspoken.

                I'm still an outlier on victimless crime laws, though, and a few other topics.

          2. I'm old, so until this moment I'd never heard of Discord. About 30 seconds of googling later, I now have the sketchiest idea what it is. Doesn't sound like what I'm looking for, but I'll check it out further.


      2. SarcastrO, I did like More Perfect a lot, and of course Radiolab is great. They haven't done More Perfect for a while now.

        By the way, I know from past comments you like popular music. If you haven't listened to 'A History of Rock Music in 500 Songs,' you should give it a try. It is done by a Brit named Andrew Hickey, and is absolutely great. He just released episode 140, and all of them should be available for free from any podcast feed. The actual song chosen is just a hook for a wide-ranging discussion about the musicians and the history surrounding the song. I thought I was pretty knowledgeable, but I learn a lot every episode.

  15. The New Pro-Majoritarian Powers
    Nicholas O. Stephanopoulos

    Does anyone here think that, if his proposals were acted on, the result wouldn't be something approaching a civil war?

    1. Academic has a hot take that sucks.

      Brett would like to pretend this is the Democratic agenda.

      1. What have I been saying?

        You said, " Have they ever denied a slate? No.

        Now there is real danger that'll happen."

        I replied, "Yeah, there's a real danger of that: Democrats are proposing to keep Trump and other Republicans off the ballot under the pretext of enforcing Section 3 of the 14th amendment."

        Is it on the "agenda" yet? Well, they don't share the agenda with me. All I know is that it's being discussed. By Democrats. Which is what I asserted.

        Discussing it is the first step towards doing it, so, yes, I think the danger of them doing it is increasing.

        1. To be clear, if Democrats had a solid majority, or were looking at a good midterm election, none of this would be being discussed. It's motivated by a panic at losing control in next year's election, they're groping around for ways to keep it from happening.

          I don't think the Democratic leadership have worked up the nerve to try something like this, but the Overton window IS shifting in that direction.

          Part of it is that Democrats have fallen into a Manichean view of the world, where there's them, and ultimate evil, and that's it. Everyone who opposes them is a Nazi, a white supremacist, a monster in human form. There's no such thing as legitimate opposition.

          Democrats have literally been comparing Republican candidates for President to Hitler since Dewey ran for President. Every single one of them, for 70 years now.

          The cumulative effect of that too many of them have come to think the rhetoric is true, that they really are fighting monsters, not merely people who disagree with them. And anything goes when you're fighting monsters.

          1. If you think I'm exaggerating, look up in the thread. More than one lefty above has asserted that everyone who supports Trump is an insurrectionist, an anti-democratic cultist.

            Trump got nearly half the vote, polls today suggest he'd win if they redid the election, and half the electorate are dismissed as "cultists".

            Democrats have lost the capacity to accept that the opposition can be legitimate.

            1. You keep conflating posters on the Internet and random academics to Democratic politicians. If there were a real danger, you wouldn't need to. Like how I don't need to re: Republicans taking over the mechanisms of electoral certification.

              Do I get to pretend Adrian Vermeule and Jimmy the Dane speak for GOP policies?

              1. They at least demonstrate what ideas are percolating around. I'd say using Section 3 as an excuse to refuse to seat Republicans is at about the stage Court packing is now, and the nuclear option was back in 2010-12. On the table, but not yet being pursued seriously.

                You like to think of the Democratic party as a reasonable party, so don't take these threats seriously. I see them as the party that decided a transvestite was the perfect guy to be surgeon general, and tried to make an outright communist Comptroller of the Currency.

                A party that has gone mad, where no idea is too far out anymore.

                1. Percolating around is a far cry from real danger.

                  Your bar is set way too low, because you always think there's a hidden plot among those who don't agree with you.

            2. More than one lefty above has asserted that everyone who supports Trump is an insurrectionist, an anti-democratic cultist.

              That's because it's true.

              The defining feature of Trumpism is fealty to Donald Trump. It is not policy. Liz Cheney is a far more orthodox conservative than Elise Stefanik, but the former was tossed overboard for the latter, because the former is a Trump opponent. Just this week, Trump announced that he was endorsing Mike Dunleavy for reelection as governor of Alaska on the sole condition that Dunleavy not endorse Murkowski, a Trump opponent.

              Trump's last 13 months have been solely about trying to overthrow the government. That's who you support. Own it.

              1. Everyone. Tens of millions of American voters. Possibly even a majority of those voting in 2024.

                If you think that may people are beyond the pale, it's because you've misidentified which side of the pale you're on.

                1. Yes. Tens of millions of voters. Every so often, a society goes insane, and a large number of people support an unspeakable evil.
                  1930s Germany. 1990s Rwanda. That doesn't prove that this position isn't evil.

                  1. To be clear, I am not saying that Trump is that bad. I am saying, however, that "Lots of people support him, so he can't be very bad" is a completely ahistorical argument.

                    1. No, sure, I understand. If he'd been going around building death camps, and invading neighboring countries, the fact that about half the population supported him would just mean that half the population had been seduced into evil.

                      But... he wasn't. He wasn't doing ANYTHING of that nature.

                      You've cited a couple of countries that embarked on genocides. So, where's Trump's genocide?

                      I'd have no trouble citing earlier Presidents casually killing. Clinton bombing that pharmaceutical plant just as a distraction, causing countless deaths in Africa from shortages of critical medications. Obama blindly launching Hellfire missiles at the location of cell phones suspected to be carried by terrorists, and slaughtering a wedding reception.

                      But Trump wasn't even into those sorts of widely accepted atrocities.

                      You've set the bar for this treatment, now show where he cleared it.

                    2. Attempting a coup may not be as evil as genocide, but it's bad enough.

                      Whether Trump would commit genocide if he obtained the requisite power is conjecture. Personally I doubt it -- there's no profit in it.

                      On the other hand, the world leaders for whom he expresses his creepy, undying affection do happen to be the ones for whom genocide is all in a day's work. So there's that.

                    3. He. Didn't. Attempt. A. Coup.

                      "Coup" has a specific meaning, it's a violent takeover of government. Usually using military force, because coups require a LOT of violence to pull off, and even more to sustain.

                      January 6th registered at about 2.3 micro-coups, in terms of violence, and it hasn't been demonstrated that it was something Trump was attempting.

                      What he was attempting was a rather aggressive and dodgy legal strategy. He was trying to get Pence to delay the certification of the EC vote, to give him more time to pursue legal challenges at the state level. Doomed challenges, in my opinion, but still legal challenges.

                      Like I said, dodgy. But dodgy is the name of the game in American law, half the precedent on the books could have been dismissed as insane prior to winning. And it was a legal strategy, foredoomed IMO, but a legal strategy, NOT a coup.

                      Might as well have called Gore's 'Recount until I win one' strategy in 2000 a "coup".

                    4. Trump was about the last President who'd have any hope of pulling off a coup. The bureaucracy were openly conducting a "resistance" operation against him, figures in the State Department have bragged about feeding him fake troop levels so that he wouldn't know they were violating his orders to draw down troops in the Middle East. The military leadership had been politically purged under Obama, (A purge Biden resumed.) and he'd hardly made a start on reversing that. The DOJ were slow-walking multiple investigations to make sure nothing embarrassing would come out about Biden before Biden took office. (Remember when he quizzed Barr about when the Durham probe would announce results, and was outraged when Barr told him the results would be announced "some time during the Biden administration"?)

                      He barely had any control over the executive branch at the best of times, the GOP establishment had fed him so many nominees who'd be loyal to them, not him.

                      If he'd attempted an actual coup, his own Secret Service agents would have carried him out of the White House.

                    5. What he was attempting was a rather aggressive and dodgy legal strategy. He was trying to get Pence to delay the certification of the EC vote, to give him more time to pursue legal challenges at the state level. Doomed challenges, in my opinion, but still legal challenges.

                      No. This is misleading and false.

                      It's misleading in that it ignores how they were trying to get a delay — by storming the Capitol.

                      It's false in that they were not trying to "pursue legal challenges." They were trying to get state legislators to throw out the elections and declare him the winner.

  16. Happy New Year!

    Interesting bit of history for you all:

    When the plague struck Geneva in 1530, everything was ready. They even opened an entire hospital for plague victims. Merchants contributed money, and the city government gave grants every month. Patients also gave money, and if any of them died alone, all property went to the hospital.

    But then a catastrophe happened to the hospital: the plague began to subside, and subsidies depended on the number of patients.

    For the staff of the hospital in Geneva in 1530, there was no talk of what was right or moral. If the plague brings in money, then the plague is good. And then the doctors got organized. At first, they only poisoned patients to raise mortality statistics, but they quickly realized that the statistics didn’t have to be just about mortality, but from plague deaths itself. So they began to cut the ulcers from the bodies of the dead, dry them, grind them in a mortar and give them to other patients as medicine. Then they started wiping the dust off their clothes, handkerchiefs and garters. But the plague somehow continued to subside. Apparently, the dried bubbles did not work well.

    Doctors went to town and at night spread bubble powder on door handles, choosing those homes where they could then profit. As one eyewitness wrote about these events, "this has remained hidden for some time, but the devil is more concerned with increasing the number of sins than hiding them."

    In short, one of the doctors became too cheeky, careless and lazy that he decided not to wander the city at night, but simply threw a bundle of dust into the crowd during the day. The stench lifted into the air and one of the girls, who luckily had recently left the hospital to play, knew what the smell represented.

    The doctor was tied up and put in the good hands of competent "craftsmen". They tried to get as much information from him as possible.

    However, the execution lasted several days. Ingenious Hippocrates were tied to poles on wagons and carried around the city. At every crossroads, executioners tore off pieces of meat with red-hot pliers. They were then taken to a public square, beheaded and cut, and the pieces were taken to all the districts of Geneva. The only exception was the son of the director of the hospital, who did not take part in the trial, but muttered that he knew how to make drinks and prepare powder without fear of contamination. He was simply beheaded "to prevent the spread of evil."

    - François Bonivard, Geneva Chronicles, second volume, pages 393- 401

    1. If that is your translation, I think 'bubbles' should likely be 'buboes', if the plague in question is the bubonic plague.

  17. Would it be possible to get something changed, when it comes to how the commenting section here works, so that it’s a little more difficult to accidentally flag a comment for review? Multiple times I’ve accidentally flagged comments while scrolling through them on an iPad. (I think my iPad also sometimes registers phantom touches at a particular spot on the screen.)

    Maybe there could be a confirm button so that two touches, and clearer intent, were needed? If nothing else that might save Conspirators from having to look at accidentally flagged comments and, I suspect in some cases, wondering why a particular comment would have been flagged.

    I’ve never intentionally flagged or reported someone’s comment, in this forum or any other, and I think it’s unlikely that I ever would. But IIRC I’ve now accidentally flagged 3 comments here.

    1. "Maybe there could be a confirm button so that two touches, and clearer intent, were needed?"

      I think several universities have that policy already as part of their "informed consent" policy.

      I refer to the experimental protocols in the human sciences, what did you *think* I meant, pervert?

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