Saturday, November 14, 2020
With LGBTQ advocacy organizations eager for change in the new Biden administration, the Human Rights Campaign has laid out proposals lighting the way forward with a detailed guide on administrative actions to reverse President Trump’s anti-LGBTQ policies.
The 24-page document, titled the “Blueprint for Positive Change 2020,” lays out guidance across all federal agencies to reverse the anti-LGBTQ policies under the Trump administration and advance equality after President-elect Biden takes office.
“These are steps that the Biden-Harris administration can take affirmatively and administratively to protect LGBTQ people and really not only put us back in positions that we were in before the Trump administration, but advance us forward toward equality,” David said.
The Human Rights Campaign, David said, has been identifying policies for the past year under the Trump administration in anticipation of producing the blueprint and having the chance to reverse them if President Trump was voted out of office.
Key among the recommendations is implementation of the U.S. Supreme Court’s landmark decision in Bostock v. Clayton County, which found anti-LGBTQ discrimination is a form of sex discrimination, thus illegal under Title VII of the Civil Rights Act of 1964.
David pointed out the Trump administration has never implemented the decision even though it was handed down in June.
“Bostock is not just simply about employment protections,” David said. “The court clearly says if federal statutes prohibit discrimination on the basis of sex, that should also include sexual orientation and gender identity. So we have many federal statutes, housing, credit, other federal statutes that would provide protections to LGBTQ people, so a full implementation of Bostock would take us steps forward in terms of protecting LGBTQ rights and advancing those rights.”
Also highlighted in the blueprint is reversing the transgender military ban, establishing an interagency working group to address anti-transgender violence, appointing openly LGBTQ federal officials, and uniform standards in federal surveys for data collection on the LGBTQ community.
Other LGBTQ organizations — including the Movement Advancement Project, the Center for American Progress, the Equality Federation, GLSEN, the National Center for Transgender Equality, and the LGBTQ elder group SAGE — issued their own document with 10 priorities for the Biden administration. Much of the guidance is similar, including implementation of the Bostock decision, reversing the transgender military ban and restoring non-discrimination regulations for LGBTQ people.
David identified the Department of Health & Human Services withdrawing an Obama-era rule interpreting Section 1557 of the Affordable Care Act, which prohibits discrimination on the basis of sex in health care, to apply to cases of anti-trans discrimination as one Trump-era measure that would take some time to reverse.
“We certainly suspect that anti-equality forces will be attacking the Biden-Harris administration in their attempts to protect LGBTQ people,” David said. “So we want to make sure that we take all of the steps necessary to implement regulations that would be appropriate in protecting LGBTQ people, so that’s one example of where we would have to go through a process.”
Reggie Greer, the Biden-Harris campaign’s LGBTQ+ engagement director, spoke generally about Biden’s support for LGBTQ rights in response to a request to comment on the blueprint.
“President-elect Biden has dedicated his life to advancing LGBTQ+ rights and will work to usher in the most pro-equality administration in history,” Greer said.
The new blueprint is for administrative actions, so it doesn’t take into consideration legislative items such as the Equality Act to advance LGBTQ rights, which Biden has said would be his No. 1 legislative priority and signed within 100 days of his administration.
The failure of Democrats to capture to the U.S. Senate, however, has thrown a wrench into the anticipated majority Biden would have for his legislative agenda.
Despite the lack of a Democratic majority in the Senate, David said he sees opportunities to move the Equality Act.
“If we’re not able to obtain full majority in the Senate, we will expect to work both with the House of Representatives and the Biden-Harris administration to push through with the Equality Act,” David said. “You know, there are certain pieces of legislation that were passed during the Obama administration, with a Republican Senate that were progressive, pro-equality pieces of legislation, so we anticipate that we can do the same here.”
David conceded challenges would exist in moving forward with the Equality Act, but pointed out the president-elect has a record of reaching out across the aisle.
The ruler broods, alone with his rage and shame, undone by rejection, his mind, like Macbeth’s, “full of scorpions,” plotting to overturn facts and destroy American democracy. His lackeys, and only they remain, try to humor the master in his labyrinth.
Donald Trump, departing president, lost in an election that a division of the Department of Homeland Security has now called “the most secure in American history,” with no “evidence that any voting system deleted or lost votes, changed votes or was in any way compromised.”
Mr. President, get the boxes, get the tape, pack your bags and be gone.
He can’t. He won’t. It’s not in the man. Truth is unbearable. Fraud! Rigged! Trump can no more accept defeat than recall the fact that he took an oath to “preserve, protect and defend the Constitution of the United States.”
His only vow is to preserve, protect and defend himself. He has never been able to see beyond that orange face in the mirror. No Bible offers consolation to this man, no creed, no truth, no sense of decency, not even Fox News now, nothing.
With his victory in Arizona and Georgia confirmed, Joe Biden, the president-elect, has 306 electoral votes, 36 more than the 270 needed to take the White House. He will end up with about 80 million popular votes, the most any candidate has ever gotten, and over five million more than Trump.
No recount can turn these numbers around. No evidence has emerged to back Trump’s lawsuits challenging the outcomes. Biden did not squeak this victory. He won clearly, period.
Even Ted Olson, who successfully argued for then-candidate George W. Bush in the 2000 Bush v. Gore Supreme Court case, says it’s over and Biden is president-elect, The National Law Journal reported. . . . a large number of people expressed disapproval, whether one agrees with that or not, of the manner, style and techniques of this particular president.”
Except that it’s not over. Desperation drives Trump to look, still, for a means to secure what Secretary of State Mike Pompeo has called “a smooth transition to a second Trump administration.” The Senate majority leader, Mitch McConnell, says it’s not over. They are complicit in a power grab.
It’s come to this in the United States of America. Trump has always been a danger to democratic institutions and the rule of law. He’s empowered dictators across the world. I’ve witnessed elections stolen in places like Iran. I never thought I would see an attempt to deny the will of the American people.
My colleague Maggie Haberman described a recent White House meeting where Trump pressed to know “whether Republican legislatures could pick pro-Trump electors in a handful of key states and deliver him the electoral votes he needs to change the math and give him a second term.”
This is Trump’s so-called Hail Mary plan. In plain language, it’s a potential political coup. Biden beat Trump by 148,000 votes in Michigan, 58,000 votes in Pennsylvania, 36,000 votes in Nevada, 20,000 votes in Wisconsin, 14,000 votes in Georgia and 11,000 votes in Arizona.
The state legislatures of Wisconsin, Michigan, Georgia, Arizona and Pennsylvania are Republican-controlled. How does this look to a man like Trump who, as my friend Greg Schwed, a lawyer, put it to me, has never “failed to take the path that would preserve his vanity and power, no matter what law or tradition it would violate?”
It looks like possible salvation.
Republican legislators may feel beholden to Trump. Some of them might conclude they’re finished if they do not do his bidding. These legislators might — might — decide to ignore the popular vote, perhaps by declaring the mail-in ballots invalid, even in the absence of a hint of voter fraud, and thus install a slate of Trump electors, claiming he won with the “legal” popular vote. The Electoral College votes Dec. 14 to choose officially the next president.
This potential maneuver is preposterous and vile. Wisconsin, Michigan and Pennsylvania all have Democratic governors, who would try to veto or block such a move. The attorney general of Pennsylvania, Josh Shapiro, has already declared that for the State Legislature “there is no legal mechanism to act alone and appoint electors. None.”
Or, in theory, legislatures could try to change the law overnight, if enough Republicans have taken leave of their consciences and concluded American democracy is expendable. I will not attempt to describe the mess that could ensue in Congress, except to say that it would be murky, and there’s a 6-to-3 conservative majority in the Supreme Court.
This is a column I never thought I would write. But better to write it than to be blindsided. The world needs an American democracy restored, rid of its brooding ruler, and led by the man who won, Joe Biden. End of story.
If he tries to steal the election, Trump will be guilty of high treason and should suffer the fate historically dealt out to dangerous traitors. Ditto for Mitch McConnell.
Friday, November 13, 2020
Over the thirteen plus years of this blog's existence and the millions of readers from across the globe - see the recently added revolver map that shows reader locations) that have come and gone, one of the goals has been to expose hypocrisy and call out bigotry. Not surprisingly, among the regular targets of blog posts are what now passes from Republicans and one of the pillars of the GOP base, namely white evangelicals. Over the almost two decades since I left the GOP, I have seen the party descend into a moral cesspool with Trump as the culmination. Over the same period evangelicals - who were always hypocrites in my view - have jettisoned what little principle that they had and revealed their moral bankruptcy throughout their quest for political power and any cost. A column in the Washington Post by a former Republican in the Bush administration who was raised as an evangelical laments and condemns both Republicans and evangelicals for their abject failure when it comes to moral character. Here are column excerpts:
One of the better speeches I helped produce for George W. Bush was never given. On election night 2000 — standing outside in the rain, at an Austin victory rally that never happened — I had the copy of a concession speech in my pocket. As I remember it, the first lines were: “I have just talked to my opponent, who is no longer my opponent. He is the president-elect of the United States.” I had no doubt that then-Gov. George W. Bush would have delivered that speech if necessary.
What America is now experiencing is a massive failure of character — a nationwide blackout of integrity — among elected Republicans. From [Trump]
the president, a graceless and deceptive insistence on victory after a loss that was not even close. From congressional Republicans, a broad willingness to conspire in PresidentTrump’s lies and to slander the electoral system without consideration of the public good. Only a few have stood up against Republican peer pressure of contempt for the constitutional order.
How could such a thing happen in the GOP? It is not an aberration. It is the culmination of Trump’s influence among Republicans, and among White evangelical Christians in particular. Their main justification for supporting Trump — that the president’s character should be ignored in favor of his policies — has become a serious danger to the republic.
Trump never even presented the pretense of good character. His revolt against the establishment was always a revolt against the ethical ground rules by which the establishment played. When he mocked a reporter with a disability, or urged violence at his rallies, or attacked a Gold Star family, Republicans accepted it as part of the Trump package. And some of his most fervent defenses came from White evangelicals.
A group that was once seen as censorious became the least strict chaperone at Trump’s bacchanal. Under the president’s influence, White evangelicals went from the group most likely to believe personal morality matters in a politician to the group that is least likely.
This is politics at its most transactional. Trump was being hired by evangelicals to do a job — to defend their institutions, implement pro-life policies and appoint conservative judges. The character of the president was irrelevant so long as he kept his part of the bargain. Which Trump largely did.
But now we know what a president without character looks like in the midst of a governing crisis. We see a dishonest president, spinning lie after lie about the electoral system. A selfish president, incapable of preferring any duty above his own narrow interests. A reckless president, undermining the transition between administrations and exposing the country to risk. A vain president, unable to responsibly process an electoral loss. A corrupt president, willing to abuse federal power to serve his own ends. A spiteful president, taking revenge against officials who have resisted him. A faithless president, indifferent to constitutional principles and his oath of office.
Two lessons can be drawn from the Republican failure of moral judgment. First, democracy is an inherently moral enterprise. Yes, politics has a transactional element. But those transactions take place within a system of rules that depend on voluntary obedience. Our electoral system and our presidential transition process have flaws and holes that an unprincipled leader can exploit. Which is a good reason to prefer principled leaders.
And second, U.S. politics would be better off if White evangelicals consistently applied their moral tradition to public life. Not only Christians, of course, can stand for integrity. But consider what would happen if White evangelicals insisted on supporting honest, compassionate, decent, civil, self-controlled men and women for office. The alternative is our current reality, in which evangelicals have often been a malicious and malignant influence in U.S. politics.
This is what a purely transactional politics has actually delivered — a lawless leader resisting a rightful electoral outcome. The only adequate response, as President-elect Joe Biden seems to realize, is a politics of character.
As partisans and analysts puzzle over the higher-than-expected turnout for President Trump (nearly 6 million fewer votes than for President-elect Joe Biden, but still high), they are poring over groups and subgroups: White, non-college-educated men. Suburban women. Young Black men.
But much of the Trump 2020 phenomenon can be explained by a far simpler way of looking at the electorate: There are White evangelical Christians — and there is everybody else.
White evangelicals are only 15 percent of the population, but their share of the electorate was 28 percent, according to Edison Research exit polling, and 23 percent, according to the Associated Press version. Though exit polls are imprecise, it seems clear that White evangelicals maintained the roughly 26 percent proportion of the electorate they’ve occupied since 2008, even though their proportion of the population has steadily shrunk from 21 percent in 2008.
This means White evangelicals turned out in mind-boggling numbers. Because they maintained their roughly 80 percent support for Republicans (76 percent and 81 percent in the two exit polls) of recent years, it also means some 40 percent of Trump voters came from a group that is only 15 percent of America.
White evangelicals have, in effect, skewed the electorate by masking the rise of a young, multiracial and largely secular voting population. The White evangelicals’ overperformance also shows, unfortunately, why the racist appeal Trump made in this campaign was effective. White evangelicals were fired up like no other group by Trump’s encouragement of white supremacy.
A Southwestern Baptist Theological Seminary graduate who now runs the Public Religion Research Institute, Robert P. Jones, argues that Trump inspired White Christians, “not despite, but through appeals to white supremacy,” attracting them not because of economics or morality, “but rather that he evoked powerful fears about the loss of White Christian dominance.”
The Institute’s American Values Survey from September found overwhelming majorities of White evangelical Protestants saying that police killings of African Americans were “isolated incidents,” and that Confederate flags and monuments are symbols of Southern pride rather than racism.
Majorities of White evangelicals also perceived discrimination against Christians and Whites, and rejected the idea that slavery and longtime discrimination make it difficult for Black Americans to succeed.
Such findings aren’t surprising. White evangelicals abandoned the Democratic Party after the Voting Rights Act of the 1960s. They became an active political force in the early 1970s in large part to defend the ban on interracial dating at Bob Jones University (they didn’t embrace abortion as an issue until 1979). The Republicans’ Southern strategy stoked White resentment for decades but never as overtly as Trump did. White evangelicals responded passionately: Pre-election, 90 percent said they were certain to vote, and nearly half of those voting for Trump said virtually nothing he could do would shake their approval.
They are, as a group, dying out (median age in the late 50s), and their views are hardly recognizable to many other Americans. Majorities of White evangelical Protestants don’t see the pandemic as a critical issue (they’re less likely than others to wear masks), believe society has become too “soft and feminine," oppose same-sex marriage, think Trump was called by God to lead and don’t believe he encouraged white supremacist groups.
The fading Island of White Evangelica will, eventually, lose its influence over America. In the meantime, its existence points to an unfortunate, larger reality. There is vanishingly little that Democrats (or Republicans, for that matter) can do to persuade voters to switch sides, because race, and views on race, are the most important factors determining how people vote. Add to the White evangelicals’ turnout the votes of the smaller proportions of White mainline Protestants and Catholics with high levels of racial resentment, as defined by the American Values Survey, and you’ve accounted for the bulk of Trump’s coalition.
I was startled this week when, during a conversation with a prominent figure in Democratic circles, he blurted out to me: “People who want to live in a white supremacist society vote Republican.
But his exaggeration contains a grain of truth. Americans are deeply, and for the moment immutably, divided by whether or not they’re nostalgic for what had long been a White-dominated country. Trump’s better-than-expected showing, particularly among White evangelicals, merely shows that he turned out more of the nostalgic.
Supreme Court Justice Samuel Alito delivered an unusually inflammatory public speech Thursday night, starkly warning about the threats he contends religious believers face from advocates for gay and abortion rights, as well as public officials responding to the coronavirus pandemic.
Speaking to a virtual conference of conservative lawyers, the George W. Bush appointee made no direct comment on the recent election, the political crisis relating to President Donald Trump’s refusal to acknowledge his defeat or litigation on the issue pending at the Supreme Court.
However, Alito didn’t hold back on other controversial subjects, even suggesting that the pressure Christians face surrounding their religious beliefs is akin to the strictures the U.S. placed on Germany and Japan after World War II.
“Is our country going to follow that course?” Alito asked. “For many today, religious liberty is not a cherished freedom. It’s often just an excuse for bigotry and can’t be tolerated, even when there is no evidence that anybody has been harmed. ... The question we face is whether our society will be inclusive enough to tolerate people with unpopular religious beliefs.”
Alito argued that some recent Supreme Court decisions, including the landmark ruling upholding a constitutional right to same-sex marriage, fueled intolerance to those who believe marriage should be limited to unions between one man and one woman.
Justices often include pointed, even barbed, language in their opinions. Indeed, Alito regularly does so, and many of his remarks Thursday night echoed similar comments he’s made in caustic dissents. Still, it is uncommon for a justice to weigh in on hot-button topics like abortion or gay rights in speaking appearances open to the press or public.
During his half-hour-long speech, Alito warned that not only is freedom of belief increasingly under threat, but freedom of expression is as well.
While the conservative justice insisted he was not opining on the legal questions related to coronavirus lockdown orders and similar restrictions, he painted those moves as oppressive.
Alito also used his address to trash a brief Democratic senators filed last year in a gun rights case, warning the court that lawmakers might move to restructure the court if it continued to produce what the senators asserted were politically motivated rulings.
Alito did not make reference to Trump’s numerous public affronts to federal judges. In 2018, those relentless attacks prompted Chief Justice John Roberts to issue an unusual statement coming to the defense of the independence of the judiciary.
Many lawyers took to Twitter on Thursday night to accuse Alito of hypocrisy for delivering a highly politically charged speech that was devoted in part to complaining about lawmakers casting the court as political.
“This speech is like I woke up from a vampire dream,” University of Baltimore law professor and former federal prosecutor Kim Wehle wrote. “Unscrupulously biased, political, and even angry. I can’t imagine why Alito did this publicly. Totally inappropriate and damaging to the Supreme Court.”
Alito also engaged in another regular lament from legal conservatives, complaining that law schools are hostile to those with right-of-center political views and others whose beliefs go against the majority viewpoint. . . . “When I speak with recent law school graduates, what I hear over and over is that they face harassment and retaliation if they say anything that departs from the law school orthodoxy.”
Like many on the far right fringe, Alito suffers a persecution complex and wants religious extremists to have special rights that override civil rights laws and the rights of the majority. He is very dangerous.
Thursday, November 12, 2020
Joe Biden will be the next president, but unless Democrats pull off an upset in the Georgia Senate runoffs — which, to be fair, they might, given the remarkable strength of their organizing efforts there — Mitch McConnell will still be the Senate majority leader.
Big business seems happy with this outcome. The stock market was rising even before we got good news about prospects for a coronavirus vaccine. Corporate interests appear to imagine that they will flourish under a Biden presidency checked by Republican control of the Senate.
But big business is wrong. Divided government is all too likely to mean paralysis at a time when we desperately need strong action.
Why? Despite the vaccine news, we are still on track for a nightmarish pandemic winter — which will be made far worse, in human and economic terms, if a Republican Senate obstructs the Biden administration’s response. And while the economy will bounce back once a vaccine is widely distributed, we have huge long-term problems that will not be resolved if we have the kind of gridlock that characterized most of the Obama years.
First, the pandemic: With much of the public’s attention focused either on Donald Trump’s last-ditch efforts to steal the election or on hopes that a vaccine will let us resume normal life, I’m not sure how many people realize just how ruinous a prospect we’re facing for the next few months.
Over the past week, Americans have been dying from Covid-19 at the rate of more than 1,000 a day. But deaths typically lag a few weeks behind reported cases — and the daily number of new cases has doubled over the past three weeks. This means that we’re almost surely looking at 2,000 deaths a day at some point next month.
And the number of new cases is still rising exponentially, so things will get much, much worse over the months that follow, especially because until Jan. 20 we will, for all practical purposes, not have a president. By the time Biden is finally inaugurated we may well be having the equivalent of a 9/11 every day.
[T]he exploding pandemic will bring immense economic hardship. Responsible governors are imposing new lockdowns that may help curb the spread of the coronavirus, but that will also lead to a new wave of job losses.
True, some of the worst coronavirus outbreaks are now in states with irresponsible governors who won’t even impose mask mandates. But even in those states people can’t help noticing that friends and neighbors are dying and that the hospitals are full; they will cut back on their spending, leading to many lost jobs, even without political guidance.
What we need, clearly, is a very large-scale program of disaster relief, providing families, businesses and, not least, state and local governments with the help they require to avoid financial ruin until a vaccine arrives. And you might think that a Republican Senate would be willing to work with the Biden administration on such an obviously necessary program.
That is, you might think this if you’ve been hiding in a cave for the past 12 years.
Remember, Mitch McConnell’s famous declaration, “The single most important thing we want to achieve is for President Obama to be a one-term president,” came in October 2010, at a time of sluggish recovery and extremely high unemployment. Why expect him to be more cooperative, more willing to act in the national interest, when millions of dead-end Trump supporters are accusing establishment Republicans of stabbing their hero in the back?
The good news is that the misery will abate when we finally have widespread distribution of a vaccine. In fact, we’ll probably see a sharp jobs recovery late next year.
But that won’t be the end of the story. Before the coronavirus struck, America had low unemployment — but our short-term (and very unequally distributed) prosperity masked the extent to which we were neglecting our future. We desperately need to spend trillions on repairing our crumbling infrastructure, caring for our children and meeting the urgent need for action against climate change.
How much of that essential spending will a Republican Senate agree to? The best guess is zero.
Now, what’s bad for America isn’t necessarily bad for corporations. But given where we are, divided government would mean paralysis in a time of crisis, which could very well be catastrophic for everyone. The truth is that even in its own interests, the big money should be rooting for Democrats in those Georgia runoffs.
Donald Trump takes pride in his reputation as a disruptive force. Drain the swamp, and all that. He came into office almost four years ago vowing to upend Beltway norms, and now he insists on leaving in similarly unconventional fashion.
It is too fitting that the Trump presidency concludes amid a babel of bluster and bravado. But [Trump]
the presidentdoes a disservice to his more rabid supporters by insisting that he would have won the Nov. 3 election absent voter fraud. That’s simply false.
Amid a flurry of lawsuits in battleground states — including Nevada — Mr. Trump has yet to admit defeat. It’s possible that he’ll never offer an official concession to Joe Biden. [Trump’s]
The president’scampaign is certainly within its rights to request recounts or challenge what it believes are improprieties. If GOP legal efforts are successful at identifying instances of voter irregularities or highlighting election procedures that invite abuse, they will not be for naught.
There is no evidence, however, that fraud cost Mr. Trump the election, no matter how much [Trump]
the presidenttweets the opposite and his supporters wish it so. Mr. Trump would still trail in Pennsylvania even if mail-in ballots received after Election Day were discarded. He would remain well behind Mr. Biden in Nevada even if unverified GOP claims of thousands of illegal votes were dropped from the tally.
In fact, rhetoric from Trump surrogates alleging widespread illegal activity has been devoid of detailed evidence supporting the charge that there was a concerted effort to “steal” the election through corruption. An electoral system that involves the participation of 150 million Americans will have its share of issues, but it’s an insult to reason and logic to argue that isolated irregularities constitute proof of a grand national conspiracy.
The simplest explanation is typically the correct one. Mr. Trump indeed faced an overtly hostile press, a political establishment that treated him as an enemy occupier and an opposition party that took leave of its senses at the mere thought of his existence. But Mr. Trump lost this election because he ultimately didn’t attract enough votes and failed to win a handful of swing states that broke his way in 2016.
Mr. Trump can keep fighting — and no doubt will. In the meantime, however, he has nothing to lose by cooperating with President-elect Biden’s transition team. Mr. Trump expected no less from the Obama administration in 2016 even as Hillary’s acolytes floated ways to manipulate the Electoral College vote. Mr. Biden deserves the same consideration today regardless of how long [Trump]
the presidentseeks to delay the inevitable.
Every year, incoming first-year law students are told a simple truth: You can sue anyone at any time for anything, anywhere.
That does not mean you will win. And it does not mean doing so is always consistent with a lawyer’s ethical and professional obligations. Some of the lawyers at the firms handling the litigation work for President Donald Trump’s campaign or related Republican Party organizations are now raising concerns internally about the legitimacy and purpose of the legal claims they are currently being asked to advance. These concerns have merit: Lawyers have ongoing obligations to adhere to the ethical requirements of the state bars through which they are licensed, as well as the relevant rules of the court(s) before which they are practicing. Trump may not have to worry about keeping a job after January 20, 2021, but the lawyers doing his bidding at the moment certainly do.
The wave of quixotic lawsuits flying out of Trump’s legal team is stretching the boundaries of anything remotely resembling a coherent and evidence-based approach to litigation. In the mere eight days since Election Day, the Trump campaign has filed at least 10 different lawsuits in at least five different states (Michigan, Pennsylvania, Arizona, Georgia, and Nevada). Some of these are run-of-the-mill lawsuits fighting over minor issues, but several directly allege fraud, and a few include documentation claiming to prove the existence of that fraud.
To date, not a single one of these lawsuits alleging fraud has gone anywhere. One lawsuit relied on what the court politely suggested was “vague hearsay.” Another suggested that the use of Sharpies on ballots had made those ballots invalid. That lawsuit was dropped before the court could even rule on it. A third claimed election officials were not properly ensuring mail-in ballots that arrived after a state-mandated deadline were being excluded from the ballot tabulation. A state court judge threw that lawsuit out after finding there was “no evidence” indicating the allegations were correct.
Other allegations claim that individuals who are deceased or no longer living in the relevant state nonetheless voted in the 2020 election. Even cursory investigative reporting into these claims has found that the former is largely due to clerical errors with respect to birth dates, and the latter is due in no small part to military personnel lawfully claiming residency in a state distinct from that in which they are currently stationed under military orders.
Rule 3.1 of the American Bar Association’s Model Rules of Professional Conduct—upon which most state bars rely at least in part—stipulates that a lawyer shall not bring an action unless a basis exists in law and fact for doing so. This rule implies that lawyers must do due diligence to inform themselves of the facts of the case and reasonably determine that a good-faith argument can be made in defense of the client’s legal claim. Rule 11(b) of the Federal Rules of Civil Procedure—many of which are designed to serve as “gatekeepers” against frivolous lawsuits—requires lawyers to ensure that their arguments are not frivolous, and that factual contentions either have or are reasonably likely to have evidentiary support. Although the courts do not often exercise their discretion to enforce it, Rule 11(c) provides judges with the authority to impose sanctions against lawyers who have violated Rule 11(b).
These due-diligence obligations are of particular importance in the cases Trump and his team are now litigating. Rule 9(b) of the Federal Rules identifies certain “special matters” that must be pled with greater specificity and are thus subject to what courts call “heightened scrutiny.” One of these matters is fraud: “In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake” (italics added). More than one court has held that the “heightened scrutiny” Rule 9(b) requires also applies to claims of election fraud.
In simple terms, a plaintiff alleging fraud must describe the “who, what, when, where, and how” of the alleged fraud. Vague allegations of misconduct—especially those based on hearsay (governed under Federal Rule of Evidence 802)—will often meet their end against the edge of Rule 9(b)’s blade. And it looks like the Trump team’s lawsuits are not faring any better.
We can assume that Trump’s lawyers are not incompetent, which leads to the question: If they know these lawsuits are unlikely to stick, why are they filing them? The ethical dilemma confronting these lawyers is greater than merely making their billable-hours quota and continuing their advancement in their firms. The deeper they venture down the Trump conspiracy rabbit hole, armed with nothing more than futile lawsuits premised on flimsy evidentiary or legal bases, the more their professional reputations and law licenses are at risk.
Every individual has the right to hire the lawyer of his preference and choosing, subject to financial and ethical limitations. No individual has the right to require his lawyer to risk her professional career to assuage that person’s bruised ego. Indeed, lawyers are ethically bound to terminate representation of a client if continued representation would result in the lawyer violating the rules of professional conduct (such as Rule 3.1) or other laws.
Recognizing how close you can get to the line before you topple over it is something that each of the members of the Trump campaign’s outside legal team should be carefully considering these days. Their continued ability to be licensed attorneys might ultimately depend on it.
Trump's attorneys need to withdraw from representing him immediately.
Wednesday, November 11, 2020
A central tenet of the outlook of many conservatives is that “elites” look down upon them and regard them as bigoted, uneducated rubes. Well, they have a point: That’s exactly how Republican politicians and the revenue-generating, right-wing media machine regard them.
It was not the Democratic nominee who thought suburbanites would be afraid of integration; that was President Trump. Using George Soros — a Hungarian Jewish immigrant — as a slur and anti-Semitic code word is a right-wing tactic; Democrats have no such Jewish bogeyman. It is Trump who believes fear of immigrants is what motivates his base; Democrats trust voters to understand that immigration is essential to the United States. And it is Republicans such as Sen. Ted Cruz (Tex.) — not Democrats — who are convinced that constituents will buy into the anti-Ukrainian Kremlin agitprop that they dish out in generous portions.
Republicans’ contempt for the masses is nowhere more obvious than in the latest Trump scam — his claim of a “stolen election.” I have zero doubt that Senate Majority Leader Mitch McConnell (R-Ky.) and every Republican senator knows the election was definitive. Biden won. Sen. Ron Johnson (R-Wis.), who said he has “nothing to congratulate” Biden for, must figure members of his base are so ignorant and irrational that they will think better of him if he practices election denial. And when educated senators call on election officials to count only “legal” votes — as is always the case — they must think bamboozling and enraging voters is the way politics is practiced.
The entire GOP strategy for the Georgia Senate elections apparently centers on a belief that Georgia voters are irrational and will rise up in fury because they think they have been wronged — again — by conniving Democrats. The Post reports: “Fear over losing the Senate majority by falling short in the upcoming runoff elections for two U.S. Senate seats in Georgia has become a driving and democracy-testing force inside the GOP, with party leaders on Tuesday seeking to delegitimize President-elect Joe Biden’s victory as they labored to rally voters in the state.”
Georgia’s Republican Sens. David Perdue and Kelly Loeffler seem convinced that ideas and political philosophy do not motivate voters. Seething, blind resentment is what they need to instill in voters (hence their letter calling for the resignation of Georgia’s Republican secretary of state). McConnell seems to agree. The Post reports: “For McConnell, as well as Perdue and Loeffler, keeping in step with Trump — and with the White Republicans in Georgia who are loyal to him — is paramount as they go about trying to win the seats, according to GOP aides and Republican strategists interviewed Tuesday.”
Democrats, meanwhile, operate under the assumption that voters are not idiots. Per the Post: “The first ad by [Georgia’s Democratic Senate nominee Jon Ossoff] for the runoff campaign asserts that his priorities, if he joins the Senate, will be managing and fighting the coronavirus, helping small businesses and passing an infrastructure bill.” In other words, Ossoff thinks voters are rational, appreciate policy choices and expect politicians to address real-life concerns. It’s almost as if he does not think politics is performance art for self-pitying cultists. How quaint.
Meanwhile, Raphael Warnock, the other Georgia Democrat preparing for a Senate runoff election, “has talked up his rise from being one of 12 children growing up in the Savannah projects to running the church the Rev. Martin Luther King Jr. [preached at] as a platform for national change.” Hope, change, progress. He is not selling hate or fear.
Republicans’ leap into anti-democratic conspiracy theories, climate change denial and economic illiteracy (selling protectionism and fear of immigration) reflects their abiding belief that politics is about inflaming ignorant people — or making people ignorant about the real choices they have. Missouri Sen. Josh Hawley (a product of Stanford and Yale Law School), Cruz (Princeton and Harvard Law School), Arkansas Sen. Tom Cotton (Harvard and Harvard Law School) and the rest of the possible 2024 Republican contenders are not stupid. But they apparently think their voters are, and they think their political careers depend on voters’ irrationality, bigotry and gullibility.
The MAGA voters are right: Many politicians and media personalities regard them with contempt. But they come from their own party and movement, and they are laughing all the way to the bank. There is nothing they think their voters won’t buy.
Meanwhile, another column notes that Trump's contesting of the election results may have another goal: lining Trump's pockets. Once again, the calculated effort believes donors will be too stupid to read the fine print. Here are highlights:
PresidentTrump isn’t really trying to overturn the election. He’s simply running one more scam before he leaves office that would enable him to enrich himself.
That’s the way it appears, at least, from the scores of fundraising emails his campaign has sent out since the election. He seems to be asking for funds to challenge the election, but the fine print shows that the money could let him line his own coffers. The tin-pot-dictator routine looks more as if it’s about passing the tin cup.
But at the provided link to the “OFFICIAL ELECTION DEFENSE FUND,” the legalese at the end says something rather different:
Sixty percent of the contribution, up to $5,000, goes to “Save America,” Trump’s newly created leadership PAC. And 40 percent of the contribution up to $35,500, goes to the Republican National Committee’s operating account, its political (not legal) fund.
Only after reaching the first maximum would a single penny go to Trump’s “Recount Account,” and only after reaching the second maximum would a penny go to the RNC’s legal account.
If members of the GOP base fall for this, then perhaps the views of the Republican Party elite towards the base are accurate after all.
[T]he report the Vatican released Tuesday on Mr. [Cardinal] McCarrick’s history of sexual misconduct before he was removed from the College of Cardinals and defrocked in 2019 sheds harsh light on the church’s unfinished response to the sex abuse crisis. It indicates policy weaknesses and dangerous habits that must be corrected so figures like Mr. [Cardinal] McCarrick cannot again wreak havoc on future generations of Catholics.
Mr. McCarrick’s own history of abuse underscores the gaps left by the standards he helped craft in 2002.
While the charter improved the church’s policies on sex abuse prevention and its management of allegations, it was directed specifically at shielding children and youths from the predations of priests. As Mr. McCarrick’s exploits show, it isn’t just children who are at risk of sexual exploitation in the church.
While Mr. McCarrick did sexually abuse children, some of the more egregious of his offenses were committed against adults, namely seminarians he met during his tenure as a bishop in New Jersey. In the report, it is clear that his peers and superiors were convinced his case wasn’t particularly urgent because Mr. McCarrick preyed mostly on adults.
There appears to be confusion among prelates throughout the document as to whether what had transpired between Mr. McCarrick and these seminarians ought to be seen as consensual sexual activity between adults — which would be a sin and an error, by the church’s count, though not necessarily a career-ending disgrace — or as something much more insidious and abusive.
Pope Francis has since expanded the church’s definition of “vulnerable adults” from those without the mental or physical capacity to resist sexual advances to include those who have “some deprivation of personal freedom,” which could include seminarians and junior priests who rely on their bishops for ordination, promotion and favorable appointments.
The Vatican ought to clarify that any sexual contact suggested or initiated by a superior in the church hierarchy involving an inferior will be met with the same rigorous reprimands — including removal from one’s post and possibly laicization — as similar offenses committed against children. Likewise, priests, seminarians and other adult victims of clergy sex abuse need reliable ways to report misconduct with transparent accountability and no threat of retaliation.
The church is also due for a slew of cultural reforms. According to the report, Mr. McCarrick was able to coerce seminarians into bed with him by creating an atmosphere of fearful cooperation at Seton Hall’s Immaculate Conception Seminary School of Theology. I have heard many similar, recent accounts from seminarians across the country, involving a number of clergy members. Sexual abuse in Catholic seminaries has been well known since at least 1983 . . . .
The Catholic seminary system is long overdue for a thorough, independent investigation into these disturbing patterns.
As a character study of Mr. McCarrick, the report offers another important area for review: the spiritual formation of its clergymen. Mr. McCarrick’s sexual behavior seemed at times juvenile, arrested; he clearly felt lonely and longed for intimacy and was unable to find a licit way to channel those emotions. If policies regarding the Catholic clergy and sex aren’t going to change, then something must, and it’s reasonable to begin with the way those considering holy orders are taught about the nature and goodness of sex.
Then there is the problem of bishops. While America’s bishops have vowed to hold themselves accountable for sexual abuses via a hotline for tips and procedures for investigation of bishops by senior bishops, those policies allow for no oversight from laypeople. But lay participation in accountability processes is crucial, because laypeople provide a perspective less entwined with the interests of the church hierarchy, and because trust and transparency are sorely lacking in the church.
The church stands at a crossroads. It can continue to fight legislation that would empower victims to seek redress and respond to abuse long after the fact, such as the suspension of statutes of limitation in sex abuse cases. Or it can confess the way it asks us to confess, and repent the way it asks us to repent: Fully, openly, over and over again, as often as it takes, as painful as it is.
Expect the Church to resist the reforms and dogma updating on sex and sexuality - and the continuation of the abuse problem.
Tuesday, November 10, 2020
Like many big law firms, Jones Day, whose roots go back to Cleveland in the late 1800s, has prided itself on representing controversial clients.
Now Jones Day is the most prominent firm representing
PresidentTrump and the Republican Party as they prepare to wage a legal war challenging the results of the election. The work is intensifying concerns inside the firm about the propriety and wisdom of working for Mr. Trump, according to lawyers at the firm.
Doing business with Mr. Trump — with his history of inflammatory rhetoric, meritless lawsuits and refusal to pay what he owes — has long induced heartburn among lawyers, contractors, suppliers and lenders. But the concerns are taking on new urgency as [Trump]
the presidentseeks to raise doubts about the election results.
Some senior lawyers at Jones Day, one of the country’s largest law firms, are worried that it is advancing arguments that lack evidence and may be helping Mr. Trump and his allies undermine the integrity of American elections, according to interviews with nine partners and associates, who spoke on the condition of anonymity to protect their jobs.
At another large firm, Porter Wright Morris & Arthur, based in Columbus, Ohio, lawyers have held internal meetings to voice similar concerns about their firm’s election-related work for Mr. Trump and the Republican Party, according to people at the firm. At least one lawyer quit in protest.
Already, the two firms have filed at least four lawsuits challenging aspects of the election in Pennsylvania. The cases are pending.
Jones Day has been one of Mr. Trump’s most steadfast legal advisers.
As Mr. Trump campaigned for president in 2016, a Jones Day partner, Donald F. McGahn II, served as his outside lawyer, leading recount fights in critical states. Mr. McGahn later became Mr. Trump’s White House counsel, before returning to Jones Day.
At the time, some senior lawyers at Jones Day objected to working closely for a polarizing presidential candidate, according to three partners at the firm.
The firm’s work for Mr. Trump has also garnered it unfavorable public attention. “Jones Day, Hands Off Our Ballots,” read a mural painted on the street outside the law firm’s San Francisco offices late last week.
Before the 2020 campaign, some partners at Jones Day said, they had to reassure clients that the firm’s representation of the Trump team would not influence the rest of the firm’s work, according to four partners. Lawyers at the firm have worked to promote gun control and have represented unaccompanied minors, including many detained by the federal government.
But the president’s inflammatory language undercuts the claim that Republicans seek merely to uphold statutory safeguards needed to validate the results’ credibility,” Benjamin L. Ginsberg, a longtime Republican elections lawyer who left Jones Day in August, wrote in The Washington Post the following month.
Six Jones Day lawyers said that given the small number of late-arriving ballots involved in the litigation, and the fact that they already had been segregated, the main goal of the litigation seemed to be to erode public confidence in the election results.
Jones Day did not respond to a request for comment.
In recent days, two Jones Day lawyers said they had faced heckling from friends and others on social media about working at a firm that is supporting Mr. Trump’s efforts.
A lawyer in Jones Day’s Washington office felt that the firm risked hurting itself by taking on work that undermined the rule of law. “To me, it seems extremely shortsighted,” the lawyer said.
Let's hope the firms put ethics and integrity ahead of money and decide to dump Trump.