This week’s blog post picks up where last week’s ended. Last week I wrote about rule of law and asked the question, “Can rule of law survive in America?” It’s here if you missed it.
Now let’s start with the timeline of Steve Bannon’s criminal charges:
Fraud / Money Laundering
August 20, 2020: Federal prosecutors brought charges against Bannon and two others for wire fraud and money laundering in connection with Bannon’s “We Build a Wall” fundraiser.
On January 20, 2021: Just before leaving office, Trump issued Bannon a last-minute pardon.
May 25, 2021: A federal judge, therefore, dismissed the indictment.
On September 8, 2022: Bannon was indicted in New York on charges of money laundering and one charge of conspiring to launder money in connection with his “We Build a Wall” fundraiser. (Because federal pardons don’t reach state crimes, Bannon could still be charged with the crimes if they also violated state law.)
The trial is still in the future. Notice the time frame: 16 months for a case already investigated under federal law.
Contempt of Congress
September 23, 2021: The Select Committee Investigating the January 6 insurrection subpoenaed Bannon.
Bannon blew off the subpoena.
On October 8, an influential account with 1.5 million followers tweeted this:
Twitter melted down. Notice that the tweet got 19K “likes.” Here are the errors in that tweet:
Congress cannot “enforce” a subpoena the way a grand jury can. A grand jury can jail someone until they comply, which is why Susan McDougal was jailed for such a long time. At any time, she could have complied and been released. Instead, what Congress can do is refer the matter to the DOJ for possible prosecution, where the goal is to punish, not secure compliance.
The work of the committee itself has nothing to do with “punishment” which is the purview of the executive branch.
Even if the January 6 committee elected for some reason not to follow up with a subpoena, the conclusion that the investigation will go “unexamined and unpunished” doesn’t follow.
In fact, the committee did follow up on the subpoena, the work of the January 6th committee was completed successfully, and the federal investigation is still ongoing. That tweet, however, was never taken down, and as far as I know, the person who posted it never retracted.
October 21, 2021: Congress asked the DOJ to investigate and prosecute Bannon for refusing to comply with the subpoena.
November 21, 2021: Steve Bannon was indicted for Contempt of Congress.
July 22, 2022: At trial, Bannon was found guilty of Contempt of Congress.
October 21, 2022: Bannon was sentenced to 4 months for contempt of Congress.
Under the federal sentencing guidelines, the penalty for a first offense of Contempt of Congress is 1 – 6 months. The judge gave Bannon 4 months. Generally, for a first offense, the judge gives the minimum which, in this case, would have been 1 month. The sentence, therefore, was high under the guidelines.
The judge then allowed Bannon to report for jail time after his appeal concluded. (The judge arguably should not have allowed Bannon to put off his jail time until his appeal.)
The Federal Sentencing Guidelines and Rule of Law
The federal sentencing guidelines are complex set of guidelines for federal judges to follow when deciding on punishment. Before the sentencing guidelines, federal judges had a lot of discretion and imposed whatever sentence they thought was fair. As a result, there was no uniformity. Two people could commit the same crime in two different regions and get widely different sentences. (This still happens with state crimes. Each state has its own laws, so California will impose different penalties than, say, Mississippi.)The sentencing guidelines were an attempt to create uniformity among federal courts.
The definition of “Rule of Law” is:
So literally, the sentencing guidelines advance rule of law by preventing a judge from following his or her whims.
Because the judge in Bannon’s case followed the guidelines (and in fact, handed down a harsh sentence under the guidelines), I was surprised (but shouldn’t have been) by the outpouring of rage and cynicism when the sentence was handed down. My timeline on Twitter was filled with comments like this:
And this:
And this:
After finding myself drowning in a sea of fury and cynicism over Bannon getting a “slap on the wrist,” someone showed me this tweet:
Ordinarily, I redact names, but Tribe is well-known, frequently appears on television, and puts himself forward as a top legal expert. Therefore, he can expect his errors to be pointed out.
As a preliminary matter, Tribe is a constitutional law scholar. As far as I know, he never prosecuted or defended a criminal case and has never worked with the federal sentencing guidelines. He doesn’t appear to have read any of the court filings in Bannon’s case or to have looked up the penalty for this crime.
In fact, he appears to be offering an emotional (instead of expert) response to the Politico headline and perhaps the article itself.
Tribe has every right to offer an emotional response to a headline. The problem is that people take everything he says as a fact. After his tweet, I had people coming to me saying, “Yeah, well, did you use what professor Tribe said?” (As a law professor, Tribe has the exact same degree I have: J.D.)
Here are the errors in Tribe’s tweet:
- Contempt of Congress is not a white-collar crime. White-collar crimes refer to a category of financial crimes.
- The judge’s sentence was on the high side of the sentencing guideline, therefore, this incident doesn’t support the cliche that there are “two systems of justice.”
The tweet, however, had the effect of generating cynicism and rage.
The Facebook whistleblower testified that strong emotions like anger generate the most engagement on social media and mainstream media. To generate revenue, Facebook deliberately incentivized rage-inducing content. Twitter does this naturally through the “like” function. Anyone on Twitter can see that rage-provoking tweets get the most engagement.
The Fox News model is built around identifying the fears in their audience and stoking those fears. For Tucker Carlson, that means stoking his audience’s fears that people who are not white are coming to take what belongs to white people and replace them.
For left-leaning media and social media, this means creating and stoking fears that Trump will get away with all of his crimes and as a result, fascism in America will flourish.
Does the Republican Party present a political problem, or a law enforcement problem?
Last week, when I said that the criminal justice system cannot solve a political problem people resisted and said, “The Republicans are breaking laws, so this is a law enforcement problem, not a political problem.”
Yes, the Republicans are breaking laws. As early as 2018, a New York Times writer observed that lawbreaking was no longer disqualifying for Republican candidates, and instead had become a badge of honor among Republicans.
Right now, Americans are poised to elect Republicans to Congress in the midterms despite what we know about Republican lawbreaking. Many Americans are voting Republican because they are breaking laws.
Wait. What?
Yup.
An anti-federal government movement has been taking root in the Republican Party for decades. In the 1990s we saw the rise of anti-government militias. When Steve Bannon talks about the “deep state” he means the rules and regulations put in place since the New Deal. When Steve Bannon talks about destroying the deep state he means dismantling the laws that he doesn’t like.
Anti-federal government Republicans don’t think that the government represents them. If you don’t think the government represents you, you can slowly dismantle the laws and regulations, or you can bring in a wrecking ball. Trump and DeSantis are wrecking balls. They are all insurrectionists in spirit.
It is no accident that the anti-federal-government Republicans defend both insurrectionists and Putin. They want America to be like Russia. Really, they do. Once you understand that, you can see that we are dealing with a political problem and a law enforcement problem.
Right, Teri, so we want the criminal justice system to solve the law enforcement problem.
This brings us to fascism and the nature of Republican lawbreaking.
Fascism
Fascism as a form of government didn’t come onto the world stage until fairly recently.
That’s because fascists come to power through legal means (which generally requires a form of democracy) and then, once they are in power, they batter the democratic institutions until they have consolidated power. “Battering democratic institutions” includes lawbreaking.
Because fascism takes root in democracies, fascism didn’t take root in Europe until after World War I dismantled the empires, and after new nations carved out of the empires tried to create rule-of-law governments. Hitler and Mussolini came to power through legal means. So did Trump and DeSantis, for that matter.
How did they come to power in a democracy? Because then, as now, a lot of people don’t like democracy. Here are a few reasons:
- Rule of law is slow and cumbersome. Autocracy is swift (“Off with her head!” said the Queen of Hearts.)
- Rule of law is frustrating. On the other hand, the autocrat promises to dispense with rules and procedures and deliver the results you want.
- Autocrats appear strong because they bluster and some people like that.
- Democracy and rule of law lead to an expanding electorate, which creates complexity (including diversity) and some people cannot tolerate diversity. Political scientists say people who cannot tolerate complexity or diversity have an “authoritarian personality.”
- Democratic institutions are run by mere humans and will never (and can never) work perfectly. There will always be flaws. Some people cannot tolerate imperfection so they reject the entire “system” without understanding that there are very few alternatives to rule of law.
Andriy Chirovsky explained it this way: “Democracy is messy. Authoritarianism is neat.”
And Now, It’s time for Criminal Justice 101
Here are theories of what criminal justice is supposed to do. Notice that each theory is inherently flawed.
Deterrence
The idea that punishment works as a deterrent led us to harsher and harsher punishments in the 1980s and 1990s and gave us our current prison system.
Did you know the United States has the highest per capita prison rate in the world? This is from 2014, but I have it handy:
(Here are updated statistics.) What we’ve learned from building the world’s largest prison system is that harsh punishment doesn’t deter crime. The National Institute of Justice (the research, development, and evaluation agency of the U.S. Department of Justice) has concluded that “sending an individual convicted of a crime to prison isn’t a very effective way to deter crime” and “increasing the severity of punishment does little to deter crime.”
Paradoxically, deterrence does work on rational and law-abiding people because law-abiding people feel humiliated if they get caught. It won’t work on avowed fascists whose goal is to take down the federal government. People who break laws because they want to destroy the federal government and replace it with something else look forward to their ultimate triumph when a new kind of leader will seize power and free them and reward them.
Incapacitation
Incapacitation is the theory that the criminal justice system can physically prevent people from committing crimes. The problem is that imprisonment doesn’t stop crimes. Crimes happen in prison and from prison. People don’t lose their First Amendment rights in prison. Very few crimes carry lifetime sentences. People often emerge from prison hardened, radicalized, and more inclined to commit crimes than before they were imprisoned.
Retribution
Retribution is also flawed as a theory of criminal justice. Immanuel Kant embraced a theory of strict retribution. He believed that a person guilty of a crime should get back exactly what he gave out. Under Kant’s theory, failing to punish all wrongdoings creates an imbalance in the universe that endangers everyone’s well-being: If people don’t get what they deserve, the entire society loses its moral balance.
Here are are a few problems with this theory:
- Not everything morally wrong is a crime, nor can it be, so not all transgressions can be punished by the government.
- Even if we adopt an actual police state in which every move every person makes is monitored, you can’t catch and punish all wrongdoing.
- The criminal justice system falls more heavily on some groups than others (Some of the imbalance is because of systemic bias and racism. Some because of practicalities. It’s easier to catch crimes committed in public than in private.)
- Judges make mistakes. Juries can get it wrong.
- In our system, we have rules that literally let guilty people go free. My favorite example of this is the exclusionary rule, which says that evidence acquired in violation of a person’s constitutional rights can’t be used in court. You can be guilty as sin, but if the only evidence against you was acquired in an illegal search, you walk free
It should be obvious that the ‘eye for an eye” theory has limited applicability: Under the eye for an eye theory, the way to teach Bannon a lesson would be to ignore his subpoenas. See how silly that is?
Here’s the rub: It doesn’t matter how many Republican leaders you put in jail if hard-core right-wingers win the next few elections.
This person said:
ok…well then just arrest them and get them to court. That will satisfy my little itch to see Trump stand for his crimes.
This is exactly what people said last summer when they were clamoring for Steve Bannon to be indicted for defying his Congressional subpoena. But were people happy when he was found guilty and sentenced according to the guidelines? Noooo.
This person said:
Under Trump we had 4 years of kakistocracy. One of the political parties was and still is fully on board with him and the insurrection. The fury and rage come from people no longer believing institutions work, because for the most part, they don’t.
Wait. What? Trump was ejected from office despite every attempt to remain there. Bannon’s sentence was harsh under the guidelines.
If people “no longer believe the institutions work,” maybe it’s because of constant rage merchandizing. Maybe it’s because people haven’t a clue what democratic institutions are. Institutions are made up of people and we are the people. Democracy literally means rule by the people. That’s us.
For what I mean, see this post.
Moreover, the idea that “institutions” can rid us of people who dislike rule of law and support insurrectionists is a very undemocratic idea. How will these institutions dismantle a political party that supports insurrectionists? The First Amendment gives people the right to say and believe whatever they want. Think about the implications of abolishing the First Amendment so that all Republicans who sympathize with the insurrectionists can be punished for their views harshly enough so that they give up those views.
Democracy cannot be saved with autocratic means because the very act of adopting autocratic means destroys democracy. That’s what makes it hard. Democracy is saved with more democracy. Autocracy is created by rule-breaking.
Finally, Thurgood Marshall didn’t sit around whining about how the institutions “no longer work.” He dedicated his life to improving them.
Much of the rage and fury is entitlement and demands that others do the work.
Warning: If You Expect Indictments To Curb Republican Lawbreaking, Indictments Won’t Make You Happy
I would like to reissue this warning: Indictments will not make you happy if your expectation is that indictments will solve a political problem. No punishment will ever be swift enough or harsh enough to end the threat of fascism.
Okay, indictments might make you happy for about 10 minutes. Then you’ll feel frustrated at the inevitable delays. The judge will make rulings you won’t like. There will be lots of challenges. Trials are harrowing. Juries sometimes get things wrong. You’ll get cynical and angry.
On the other hand, if you’re like me and you are looking forward to more indictments because following the twists and turns of the legal process is inherently interesting 🤓you’ll enjoy watching the law closing in on Trump and his friends.
I worry most about the future of democracy when I think that not enough people actually like the messiness of democracy enough to defend it and to turn out to vote in large enough numbers to keep fascists from seizing power.
My advice: Ignore the rage merchants and learn to distinguish expert opinions from emotional reactions. Rage creates apathy and hopelessness and people who are apathetic and hopeless have a hard time finding the energy to do the work required to save democracy.
Learn to love rule of law with all its frustrations and imperfections.
And now, you need some dog content, right?
JJ went to the groomer all scruffy and came back all dressed up.
Thank you for the clear rational take on this and so many other issues. You’ve provided lots of answers for the high profile cases coming out of the former administrations extensive corruption. You’ve also raised interesting questions about the overall role of our criminal justice system and what our goals for it should be.
J.J. is a very dapper doggie.
The intricacies of the legal process are interesting to watch unfold, especially with your explanations along the way.
As for whether democracy can survive, time will tell. All we can do is do our part to support our democratic institutions, vote, and help educate others with the truth.
Thank you so much Terri. Your explanations are calming and remind me to love the journey through democracy and to do all I can to help turn out the vote.
Pardon the typo, should be “adminstration’s extensive corruption”
At this point, that is what it is all about: Turnout.
I’d heard or read beforehand what the specific sentencing guidelines were in the Bannon case, which helped temper my expectations. I wonder also if some of us not schooled or experienced in the legal profession, carry a knowledge deficit and/or unrealistic expectations about how complex legal processes actually work in reality -versus our oversimplified emotionally charged version of Law and Order/Perry Mason episodes in our heads! Thank you for your commitment to bestowing the balm of clarity, law schooling and sharing your legal expertise with us!
JJ is looking mighty handsome.
[snip] . . . That’s why people are freaking out and having a hard time with ‘relax, it’s all gonna work out’ takes. There’s nothing stopping them and we are extremely close to game over. We are here precisely because nobody saw any urgency to put out this fire while it was still at least theoretically possible to do so.
I think Prof.Tribe lost the plot a while back. Jail time aside, though, couldn’t one argue that the judge went rather light on the fine, $6,500 instead of the $200,000 the prosecution asked for?
I removed most the comment left by “Hair on Fire” because it was pure garbage.
I left this part because it amazes me that anyone can read what I wrote and think that I said, “Relax, it’s all gonna work out.”
The only thing I figure is that some readers are binary: Either the writer is evoking panic or saying “relax everything is fine.”
In fact, panic and rage are terrible ways of dealing with emergencies. Even in an emergency like an airplane accident, cool heads can save lives.
Could be. I didn’t look closely at that part of the sentence. Either way, though, wouldn’t hurt Bannon in the least. He can raise 200K as easily as 6.5K
But trust me: Four months in a federal prison is gonna hurt. I think it’s four hours of visitation per month and about 300 minutes of monitored phone calls per month. He’ll come out angrier and more of a hero right-wing hero though.
You mentioned Susan McDougal in this post. She served I believe 18 months (or possibly more) for contempt of court. I am concerned that Bannon is allowed to stay out of jail during his appeal. I don’t understand the difference?
I also have another question re sentencing. You responded to this question but it was too *high level/broad* for me to understand. Sorry I am a layman. I have seen many cases were when someone is found guilty, the sentence is determined and the person is immediately taken to serve that sentence. Now it seems a person is found guilty, months go by before sentencing? Can you please explain in the legal system the process that happens between being found guilty and finally having to serve some time. I understand that appeals come into play. But I don’t fully understand the process. It seems to me that some get carted off to jail immediately and other’s don’t.
Thank you so much for taking the time to inform us laymen of the workings of the rule of law. My concern is the discrepancies that seem to be inherent in the process. I.e. some people seem to benefit from civil protections in the rule of law while others are immediately carted off to jail. I hope my questions make sense to you. I’m not the best at framing my thoughts.
Thank you for all that you do to inform us laymen!
I read the Bannon ruling. Was not freaked about it as contempt, though significant, is the least of his exposure.
I tend to err on the side of it will work out, in part because I was a baby fed when McVeigh was convicted by Garland. A photo of a firefighter carrying away a toddler from the day care there haunts me to this day.
If I buy the rage tweeting I will become totally ineffective, and as in my tiny rural town there’s a nonpartisan CITY COUNCIL position being run for with smears and GOP money, and a couple counties over a sheriff arrested a burn boss for being federal on federal land (which they don’t believe in over there). It’s the same county where an Oathkeeper sheriff in Oregon tried to support the Bundy Occupation of the wildlife refuge.
Yeah, I have rage, but without hope I am a do nothing. So one from A and one from B (plus I read a lot of court rulings and Teri Kanefield, Heather Cox Richardson, Joyce White Vance, and just designed, printed and cut 2000 postcards to get out the vote for our upcoming election.
Messy but actionable, all!
I see a run on sentence, above.
My long sentence about local GOP/militia travesties was meant to indicate that “as these things are happening, I can’t afford to let the rage overcome the ability to act”.
Sorry bout that.
You are my go to for factual information on Twitter. I understand why others push injustice and rage but it doesn’t mean I have to get bogged down in it.
Thank you for the explanation of our justice system. Having only been involved in a court setting as a foster parent/adoptive, I am at a total loss how everything else works.
The ones who can remain calm during the misinformation blitz, will be the leaders of tomorrow!
We read your post every Sunday morning while we stretch and before we meditate. Your ability to take an expert, “standing back” approach to everything we’re experiencing is inspiring and instructional. After the Bannon verdict and we saw the sentencing guidelines, we already knew what you’d write. Thank you for teaching us.
I was re-reading your previous post about the rule of law, and it occurred to me that there is a strong similarity between the monarchical model of government, and the patriarchal model of family authority. Presumably someone with an authoritarian personality is attracted to both. One of the things Republicans like to talk about is “traditional family values”.
Moving on to this post, there are prison programs to reduce re-offending, by changing their prisoner’s underlying circumstances. If Republicans publicly endorse law breaking in order to make themselves more appealing to their voters, there isn’t a way of changing their underlying circumstances to make them less likely to re-offend.
Thanks for the dose of sanity. JJ is looking quite dapper!
Susan McDougal defied a grand jury subpoena. Bannon defied a Congressional subpoena. A grand jury subpoena is issued by a court. The court and Congress are separate branches of governments with different powers. The power to punish belongs to the executive branch (that brings charges) and the courts. So courts have the power to punish and imprison people. Congress could possibly give itself that power but hasn’t.
McDougal did not serve an 18 month sentence. She was imprisoned until she complied. At any time she could have complied and been released. Bannon is being punished. He cannot be released until he serves the four months.
As far as release pending appeal, there are rules that allow for that in federal courts.
One mistake people make is comparing different jurisdictions, which operate under different rules. States have their own rules and laws, which are different from federal rules and laws.
Did that help?
Bless you for pointing out what should be obvious, if we weren’t screamed at 24/7 by people trying to make money off our emotions (and if we had more civil education; most people have no idea how even local government works, much less the federal government).
I’m also glad you point out that the judge probably went too far letting Bannon walk free while bringing his appeal. That’s one of the things that ticked us all off. It’s like seeing Graham get to appeal over and over again against his subpoena; most people wouldn’t have the resources to pull such stunts, so we see one law for the rich and another for the not-rich.
Education materials for how to identify rage merchants and be able to distinguish expert opinions from emotional reactions needs to be published similar to how information is published to distinguish email and links that are used for phishing personal information.
In California, people have the right to a court appointed lawyer for all appeals in criminal matters. Other states and the federal government should allow that.
There are organizations that supply free lawyers in important cases for people who can’t afford them. It isn’t one law for the rich. It’s the rich have more access.
Before the 1960s poor people were not given court appointed lawyers in criminal cases. That happened as a result of hard work from ACLU lawyers.
One of my pet peeves is when people make statements like “this is unfair” without also asking, “What can I do to help improve?”
The ACLU still does good work. Find organizations like them and support them if you want to see improvement.
The problem is that people are not yet accustomed to a new way of getting information.
Thank you for the post. It’s a breath of fresh air to read actual… information.
Re: two systems of justice. Is your average citizen likely to get a congressional subpoena? Is one lens to look at it through that the very system and structures are set up to minimize the consequences of the sort of people who would be getting them?
Curious what your thoughts are. I’m sure part of the outrage comes from people assuming defiance at this sort of level would have stronger penalties overall, not that he got special treatment within that framework.
If the average person ignores a court subpoena they get a fine.
I had a witness once defy a subpoena and not show up to court. Nothing at all happened.
I am persuaded that the outrage comes from privilege. Most of the outrage comes from people who read a few headlines and indulge in self-satisfying anger.
People like Stacey Abrams who are actually out there doing the work to make the world better and democracy stronger don’t have time or energy to indulge in outrage.
I worked for most of my professional career in state government information technology, either the tax depth or environmental protection, tracking permitting applications and inspections and violations, all rules and legally bound requirements. I was also on juries several times, and so got to see the state judicial system operating from the inside. I find your writing clearly describes the legal situation in detail for people who have little to no experience with the legal system as well as for people with a good background in the law.
I wound up working for appointed managers who were former US Attorney lawyers who had little experience with state rules and laws, which was odd and entertaining, trying to explain complex environmental institutions to guys who thought they already knew all they needed to, but were mostly wrong about it. How do you tell the cabinet secretary how wrong they are without being condescending?
Anyway, keep up the good work, and hang in there… and thanks for your hard work!
Teri, as always, your posts are informative and educational, and crafted in a way to help explain the complicated process of the legal system for the average person. We are living through a crisis era in the U.S. and how it will end is still undetermined, imo.
What we need are more people like yourself who have both feet firmly planted in reality and are capable of promoting rational thought that is not fueled solely by outrage. And it really is an “all hands on deck” scenario if the U.S.’ democracy is to survive. That means that everyone needs to do everything thing they can as citizens.
First and foremost, vote, and know who they are voting for, which means looking up the person running for office and knowing where they stand on various issues.
Promote and support democratic principles and institutions, which can entail volunteering to help with elections, attending city and county council meetings, being active in their communities, and in general being aware of what is happening with an eye to towards how to support the actions that reflect their own values.
And finally, educating themselves on how our various systems of government work so they can easily spot dis- and mis- information. Your posts both here and on Twitter help to dispel the incorrect and false information that flows across most social media platforms, and even in the mainstream media, at a rate that is pretty incredible.
The work you do is extremely valuable, and I appreciate your commentary and explanations. Plus, at the end I get to see a cute picture of JJ! Thank you!
All the thumbs up to this comment!
Who says “it’s all gonna work out”? It may not!
There are 50 million unengaged citizens that choose not to vote. The balance of power sits on a knifes edge. Without thoughtful, well educated, informed citizens that participate in civic affairs we will *get what we deserve*.
We allowed the majority of media to be captured. We let civics education languish.
Everything about our society appears to lead towards ceding power to authoritarianism.
I am just as sick and worried as “Hair on Fire”.
To me, most interesting recently is the polling that Nate Cohn talked about in his recent NTYs piece. When asked what are the biggest threats to democracy, something close to 70% of Americans cite something like, “Government mainly works to benefit powerful elites rather than ordinary people.” Only 4% said that Trump and election denial were the #1 threat.
It’s not simply that democracy is messy. It’s that tens of million of Americans, mostly working class, I suspect, feel that democracy or whatever our currrent system is not working for them and is, “becoming increasingly disconnected from public opinion.”
Trump does not necessarily represent “autocracy in opposition to democracy” to these millions, so much as someone who speaks directly to their fears and resentment in a way that no one has in a generation or more. These millions understand “messy” and don’t expect Trump and allies/clones to do everything right. They just believe that Trump, et al are confronting the elites, and the elite consensus, who/which have captured and injured to themselves the largest benefits of our “democratic” institutions and systems.
Meanwhile, rather than directly addressing ourselves to working class disillusionment and need for real champions and very urgent and clearly articulated and targeted responses, we elites just plod along engaging in conventional political “trust us, we’ve got a plan” mode (which these tens of millions have totally lost trust in), bemoaning the nasty polarization, and blaming Trump-The-Symptom for our own massive failures to govern responsibly and to be the primary carriers and spreaders of the underlying disease.
Socrates is reported to have said, The unexamined life is not worth living.” Well, here we are where tens of millions have examined their lives and are reporting that, effectively, life sucks. It is far past time for the rest of us, the privileged, examine our own lives and decide whether, “The unexamined life of privilege is worth the loss of democracy.”
Thank you Teri, I think your last paragraph is my often made mistake. It’s just frustrating when it seems some spend years in prison and others get a slap on the wrist for what seems to be the same crime.
My next question is, how will all this effect Lindsay Graham? State vs Federal?
Thank you again for all that you do.
He’ll have to testify, I’m sure.
My clients often waited close to a year for their appeals to be decided. The lengthy delays were due mostly to courts being underfunded.
Instant happens only in autocracies. Don’t wish for it.
Once again thank you so much. You helped me recognize how some of my outrage reaction behavior harms real understanding and progress so I’ve decided not to feed that anymore and focus on the fact that we as individuals have power though the Left, Right and Media conspire to convince us otherwise. These forces arrayed against us are evil because they want to rob us of our power to discern the truth and take action and they count on their right to feed off of fear and hatred. Without that they could not survive because they have no other source of life or light. I’m tired of being on their All You Can Eat Sizzler Fear Buffet.
Thank you for keeping it real. We are in trouble as a nation, I won’t deny that, but rage manipulation no matter where it originates or how benignly it’s intended is not helpful. Clear sober analysis of the law and a reminder that democracy is messy is just what I needed to read today.
Hi Jon – agree with you, and your comments echoed many themes in last Thursday’s Pod Save America podcast, “Doompolling!” – if you haven’t listened, I found it to be really illuminating: they broke down all the polling results from that Cohn article in a way that gave me a new (not necessarily less disturbing) perspective on democracy as a concept with many different definitions – likened it to a Rorschach test. Further, the interview with Tim Ryan later in the podcast expands on ideas of where Dems messaging could use tweaking.
My favorite part:
My advice: Ignore the rage merchants and learn to distinguish expert opinions from emotional reactions. Rage creates apathy and hopelessness and people who are apathetic and hopeless have a hard time finding the energy to do the work required to save democracy.
“Congress cannot “enforce” a subpoena the way a grand jury can.”
Absolutely true. OTOH, they have this thing called, “inherent contempt” that can be used. I am not a Congressman, but it sure seems like resurrecting it is overdue. Especially for the insurrectionist-in-chief. 🙂
If you have any insight, I’m all ears. Otherwise, “I have no idea” would be a completely expected response.
“Does the Republican Party present a political problem, or a law enforcement problem?”
Yes.
“Yes, the Republicans are breaking laws. As early as 2018, a New York Times writer observed that lawbreaking was no longer disqualifying for Republican candidates, and instead had become a badge of honor among Republicans.”
As can be readily ascertained, The NY Times is behind the curve on many things. Anyway, The 1799 Logan act was violated in 1968 and accepted by the Republican Party. It was violated again — with even greater acknowledgement — in 1980. So, Republicans have been pretty well known for not fretting over legalities when it comes to improving electoral chances.
This is beyond political parties, it’s about defending institutions. If enough people abandon democracy and rule of law, REGARDLESS of political affiliation, those institutions themselves are weakened.
Remember, they don’t need you to agree with them, they just need you to stand by as they dismantle the institutions that have held them at bay thus far. Let us be clear here, they would be in power RIGHT NOW if these institutions were not working.
To abandon the very institutions that have kept them from succeeding thus far however, gives them the room they need to advance a fascist agenda.
Disinformation and psyops campaigns have the same underlying strategy. To succeed, they don’t need to change minds, rather they only need to sow doubt and weaken the support of their intended target. Targets like, let’s say… DOJ, FBI or Merrick Garland. Just to name a few *random* examples off the top of my head.
As always it’s important to ask what does this article/tweet want me to feel? Where does it want me to direct those feelings?
If your sources consistently direct your anger and dissent towards the people and institutions that are actively working to defend democracy and hold criminals accountable for their crimes, it should raise a red flag. Who benefits from you behaving that way?
Now pack your car with as many friends as will fit and go vote!!!!
To begin with, Congress doesn’t operate a jail. I’m pretty sure they’d need to pass legislation. If the Republicans win the House see if you still like the idea of Congress having that kind of power.
What people forget about rules is that they apply to people you don’t like and people you do like. Same with power. Increase governmental power and it can be abused.
Thank you for your legal scholarship as always and thank you for pointing out the rage inducing tactics used on us.
I found the words of Rabbi Danya Ruttenberg from her latest Life Is A Sacred Text newsletter helpful in terms of anger (so many fabulous women, so many fabulous newsletter)
“Anger is a fact of life. It’s going to be around as long as injustice is.
And the fact of the matter is, anger serves a number of valuable roles as a response to evil: It shows us where our boundaries are; it gives us a forceful response to a injustice; it moves us to action; it helps us understand where our limits are. A primal scream can be a release that helps us exorcise the hard feelings so that we can move forward in catharsis. If evil is a disease, anger serves as the white blood cells who rush to our body’s defense—a healthy evolutionary response to a legitimate threat.
So how can we engage anger usefully in our lives, and in work for social change? What’s the difference between righteous indignation and, well, the less helpful self-righteous kind?
One way of thinking about whether or not anger is productive might have to do with how it’s used. As Rabbi Rosenn would say—whether or not it’s mastered.
The 11th c. philosopher Solomon ibn Gabriol asserts that
“anger is a reprehensible quality—but when employed to correct or to reprove, or because of indignation at the performance of transgressions, it becomes laudable.”
In other words, if you use anger to help people to improve, to protest injustice—it’s a perfectly fine thing.
The trick—and this is a serious trick indeed—is to get awfully clear on whether or not that moment of anger can give us the bravery to say what must be said or whether it clouds our judgment about the message.”
You are absolutely correct. Read George Lakoff’s book The Political Mind. It enlightened me on many “frames.”
But once again a judge in Georgia ruled against Lindsay Graham’s appeal, so perhaps at some point he will be compelled to testify yet.
I am watching The Vow on HBO, and it’s been illuminating how ordinary people, successful people, can get swept up in a cult and find themselves doing things that their innate moral sense tells them is wrong. The good news is that eventually there were enough of them who left, and the cult leader is now serving multiple life sentences. Today I choose the believe that the moral arc of history is long but still bends toward justice. It takes courage.
Anger can be motivating when it leads people to action and when it is based on facts. But when rage is stirred based on something that isn’t true, we’re in dangerous territory.
Thanks for clarifying. “It’s the rich have more access,” which was my point. And we all know how overworked court-appointed attorneys are.
I donate to the ACLU monthly, as well as the DNC.
Right. There is a difference between, “The rich often have better access to lawyers (but not always. I know places where the public defenders are better than the paid attorneys in town) and “there are two separate systems of justice.”
The first is true. The second is untrue, and misleading to people who don’t understand how courts work. Moreover, “There are two systems of justice” applied to the Bannon ruling coming from a “legal expert” is appalling and embarrassing.
Great post! thank you. And thank you for the dog photo. So darned cute.
I believe your statement about prison population in USA is not entirely correct.
Many of the people sent to prison are mentally ill ( I mean Schizophrenic, Psychotics) who should be in Psychiatric institutions and not prisons.
When the psychiatric institutions were closed and those patients were let out most of them ended up on the streets. Psychiatric illness should be treated as any physical illness with hospitalization and medication. I saw a video few years ago where a clearly mentally disturbed patient standing infront of 7/11 store with a stick in his hand is ordered by a policeman to drop the stick. The person is clearly confused and agitated and instead starts walking towards the policeman and is shot 7 times as an animal. He should have been in a chronic mental institution and on medication like any other civilized country and not shot like a dangerous animal. If all these people with chronic mental illness are in mental institution and not prisons the percentage of Americans in prison wii not be any higher that western European countries.
This is perfectly consistent with my position, and I agree. I’ve often thought that prison populations could be reduced to nothing if we treated mental illnesses and offered adequate social services.