Agatha Christie novels have such convoluted plots that they sometimes feel like protracted solutions to SAT questions. Sometimes I wonder why they’ve been so successful and continue to be so. This morning, at about 4am, a piece of the answer came to me.
I was listening to a terrific audiobook, narrated by the gifted Emilia Fox, and it was to her great credit (and perhaps my great detriment) that the narration was so fantastic that I could not go back to sleep. In the first few chapters she describes the train voyage of Mrs. McGillicuddy, in which she witnesses a horrible crime through the window near her seat.
I really recommend listening to the whole thing, but especially to the first few chapters:
The solution, etc., is interesting, but what I find really grabs my attention is Christie’s sensitive and deeply relatable description of Mrs. McGillicuddy’s frustration at not being believed. She doesn’t have to spell out “ageism” and “sexism” for the reader (or listener) to be irate on Mrs. McGillicuddy’s behalf, as she is being pooh-poohed by various railway employees who think she is fantasizing. The relief you feel when she gets to her destination–her old friend Jane Marple’s home–and is finally believed, her evidence taken seriously and respectfully, and her mind set at ease as Miss Marple takes over the investigation. Whether or not one loves the usual Christie machinations that follow, those first few chapters are such a gem.
Last night we were ecstatic to receive the cover art for FESTER. UC Press has always done right by me–we had a back-and-forth about Yesterday’s Monsters that was very productive, and to this day people remember Cheap on Crime as “the one with the stripes”–but I think this is the best cover they’ve designed for me so far. I like it for three main reasons:
(1) The color. THE COLOR! I love it! Sickness green. You can’t avoid it. You can’t ignore it. It’s so sick. It’s so sickening. It’s the color of miasma and nausea. It evokes with such visceral precision the story we tell in the book. And, people will remember “that green one.”
(2) The map. This was my proposal to the press, and I’m really glad they took me up on it; the execution, of course, is much nicer and cleaner than anything I could’ve possibly produced. You’ll notice it is a map of California, with coronaviruses indicating the locations of CDCR prisons. Inside the book, in Chapter 5, you’ll see another version of this map, which overlays the prison locations on the entire state’s COVID-19 map, which we think drives home the point we make there, and throughout the book: when and where people get sick behind bars, everything around them is sick, because prison is not isolated from its surroundings, but rather along a continuum. I love that this spatial idea, according to which we are not safer when our fellow Californians age and ail behind bars, made it to the cover in such a neat, communicative way.
(3) The font and the way the word breaks down the middle. They could’ve written it on the diagonal, or in smaller print, but they wanted it to be HUGE.And it *should* be huge. We’ve been spelling FESTER in all-caps for a reason, and I’m so glad they kept it that way for the cover. It is only now, presented with the cover art, that friends of mine are finally “getting” the title: it’s not just the disease that is festering. It’s the massive neglect and dehumanization that festered there for decades. The outbreak is nothing more than a trigger that activated existing vulnerabilities. And don’t forget how the coronavirus permeates not only the state map, but also the letters. Everything about this cover is overlaid and permeable.
We are told that FESTER copies will be at the warehouse in January and available in bookstores, brick-and-mortar and online, in March. I will keep you all posted as to developments and as to the book party and tour.
In the sixties, Todd Gitlin, then a young, passionate student, became involved in the fight against the Vietnam war and in the struggle for equality. Alongside his friends at Students for a Democratic society (he was the president in 1963-1964) he agitated, organized, protested, held movements, registered people to vote in the Deep South, and fought against orthodoxy in the Democratic party and for a New Left. Many years later, already a sociology professor and incisive critic of the movement he helped create, he evocatively wrote about how much activism had meant to him. The first half of his masterpiece The Sixties reads like a manifesto of hope; the second half, though, is rife with confusion. Plans for political action got muddled with self expression and individuality a-la diggers and the Mime Troupe (to read a different perspective on those, read Peter Coyote’s fantastic memoir Sleeping Where I Fall); people he admired and respected as leaders disappointed at best and disintegrated at worst; former comrades slid further and further to the left, established the Weather Report, and engaged in clumsy but frightening violent actions Gitlin could not condone or comprehend (learn more about those in the podcast Mother Country Radicals). Gitlin’s later books reveal an author and thinker who still very much believes in the ideals of socialism and peace, but resents the splintering and performativity of identity politics that he believes shattered the movement in the 1970s.
Today I found myself going back to one of my favorite books by Gitlin, Letters to a Young Activist, which evokes that deep ambivalence and wisdom that comes only from spending years in a movement you both admire and fiercely critique. Gitlin talks about the importance of passionate motivation but also reminds young activists not to “think with their blood”; highlights the crucial role of shining a light on the wrongs of your own side, but also the importance of letting self-flagellation by the wayside; and warns against the dangers of “marching on the English department”, as it were, while one’s opponents “march on Washington.”
What brought me back to Gitlin were a number of recent conversations with younger folks I like and admire a lot about their disillusionment with infighting and lack of integrity in radical movements and organizations with noble goals and true dedication. People admired and respected in positions of leadership turn out to behave in disappointing ways; serious issues get buried or, on the opposite end of the spectrum, debated to death, complete with public denunciations and humiliations; minute complaints turn into struggle sessions that sap everyone’s will to come back; and eventually people come to demonize their comrades and brothers in arms more than they do the bad guys they are fighting against.
Hearing about this stuff is always heartbreaking, especially when I see folks who I know put in countless, tireless, thankless energy, time and effort into organizing and activism express disillusionment and despair. I can offer very little solace in this sort of situation; dealing with big disappointment as an idealist is really hard, and calls for more than one self-compassion break.
Kristin Neff, who has written and spoken extensively about self compassion and mindfulness, offers a three-step formula for anyone who is struggling. The first step is to admit that this is, indeed, a moment of suffering, a low point in the person’s life. The second, which I’ll elaborate more on in a bit, is understanding that suffering is universal, a part of life, and that everyone suffers–sometimes intensely–from time to time. And the third is offering oneself some kindness, either through expressing it or through a gentle hand touching one’s own heart.
I like this exercise a lot, and find the second step especially important, because as Brené Brown explains, one of the traps of shame and self-pity (by contrast to self compassion) is to see one’s experience as unique and idiosyncratic. I see a lot of this horror in young, committed activists, who are so distraught by occurrences in their group or community that they believe it must be prey to some special variety of pathology. This is where I can offer some comfort. As regular readers know, I’ve written and spoken quite a bit about the sixties, and part of my work on Yesterday’s Monsters included learning about cults and movements that swirled around the California counterculture when Manson put together his “family.” When the murders occurred, and when Manson and his followers were identified as the culprits, they evoked a wave of horror because cults and their inner workings were not well known or understood at the time. Indeed, the idea of thought control and brainwashing was associated at the time only with Communist regimes such as China and Korea (see an example of this in The Manchurian Candidate.)
But while this group stood out in the heinousness of their crimes, they were by no means the only group led by charismatic leaders and/or a vision to be plagued by exploitation, violence, and oppression. In the mid-seventies, the California legislature held a hearing for family members of young adults who had joined cults, hearing testimony after testimony about how their loved ones fell in thrall to some charismatic leader or other, started believing some stranger things, dramatically changed their appearance or habits, isolated from them to the point of estrangement, and gave all their effort and resources to the cult. Witnesses testified about the Moonies and about a variety of Christian apocalyptic cults. The legislators at the hearing tiptoed between expressing deep concern and sympathy and reminding everyone that cult members were adults with the freedom of religion and expression.
To this day, whenever I see people criticize radical activist movements that fall prey to unsavory activity and conflict, the demonizing language compares the movement to a cult. This is not a scientific or easy process, because cults turn out to be quite a malleable category. But one need not go into the reeds to identify pathological cultish elements in pretty much every activist movement, including influential and notable ones. Three years ago I wrote a post about this stuff that identified a lot of the obvious issues: betrayals of the cause, identitarian splintering, sexual exploitation or perceived exploitation, financial malfeasance, etc. Having read a lot about movements in the 1960s and 1970s, I see situations where the FBI were infiltrating and persecuting organizations and cells and eventually didn’t have to do anything to hasten their demise: these outfits crumbled on their own, without the malignant interference of the feds, because they suffered from these inherent issues. Stanley Nelson’s fantastic documentary about the Black Panthers is a case in point: there’s nothing the FBI could have done to dissolve the Panthers that Huey Newton didn’t do himself. Larry Kramer’s acerbic account of ACT UP in The Normal Heart shows the awful indifference and demonization the activists were working against, but also how they sabotaged themselves through horrendous infighting. I see this stuff again and again.
Here are some factors–and this is by no means an exhaustive list–that are part of this malignant cocktail. Oftentimes, radical organizing draws people who seek the type of camaraderie and belonging that membership in a close-knit group of likeminded people working for an important cause can provide. Some young folks get swept in this energy because home life is rife with trauma or neglect, or because their school or employment networks haven’t improved their lot socially. I’m not saying their commitment to the goal is not genuine; all I’m saying is that excitement about a common vision is infectious and promises an embrace that is very difficult to resist if one feels lonely or traumatized. The fact that a lot of radical movements strive toward ideological purity is also part of this. It isolated people and drives them further into the insular experience of the group, with no reality checks and balances on the outside. I’ve spoken to mixed-race couples that broke up on account of a commitment to racial justice that was so strong that it eclipsed years of love and commitment. I know of people who took the Liberation Pledge (not to eat where animals are served) and ended up unable to eat with anyone from their family or friend group outside vegan movements. Not only does this mean all of one’s social efforts are invested in a relatively small group of people, but that group ends up being an echo chamber and it’s very difficult to test ideas in the real world. And moreover, anytime purity and adherence to principles are the yardstick for worthiness, people turn on each other and compete over who is a more zealous advocate for social change. This process of eating each other seems to accelerate as shit starts hitting the fan, because people who are afraid and fighting for their own survival are sure to lash out at the people standing closest to them.
The fact that crappy things are happening to committed activists throughout the social justice field is not cause for cheer, but I think that anyone who thinks their organization is uniquely pathological might derive some comfort from knowing that, apparently, homo sapiens seems to find a way to ruin communities centered on ideals and struggles pretty much all the time. I don’t think we’ve found a way to organize and seek social change that doesn’t end up marred in these kinds of self destructive crap. I wish we could, but I’m in my late forties, have organized and agitated plenty, and I’m just not seeing it. The one that came closest to being a healthy organizing container, for me, was the #StopSanQuentinOutbreak coalition; it wasn’t without its warts, but it was highly effective and overall a really positive, supportive environment. I suspect the magic had something to do with the fact that, in addition to the long-term decarceration vision, we had tangible, short-term emergency goals, and thus no time for faffing. Perhaps human nature, like nature in general, abhors a vacuum, and will fill any available space with infighting and oneupmanship.
I don’t know what the answer is. But I do think that understanding we’re talking about universal phenomena that radical movements go through can be helpful to people who think they’re stuck in a uniquely dysfunctional scenario. Every unhappy family, as Tolstoy famously wrote, is unhappy in its own unique way, but they are still all unhappy. And that means that any person who believes in an ideal, a vision, a blueprint for far-reaching social change, and is committed enough to put a lot of work into it, will experience heartbreak from time to time. If this is you now, then it’s simply your turn. Offer yourself all the kindness you need to get through the rough patch, and then see if there’s another path for you to change the world or bring about your values in a way that supports your heart better.
One more indictment! This time, it comes from Fulton County, Georgia, where Trump tried to bulldoze the Secretary of State into “finding” him enough votes to win. Eighteen additional friends (and 30 unnamed co-conspirators, probably anonymized to entice them to flip on the named defendants as in the recent federal indictment) come aboard for the ride with RICO violations and a conspiracy. Read the indictment in full here.
This is a lengthy indictment, containing 41 charges, the first of which is a violation of the Georgia RICO Act, which requires that the defendants “while associated with an enterprise, unlawfully conspired and endeavored to conduct and participate in, directly and indirectly, such enterprise through pattern of racketeering activity.” Beyond the strategic value of using the RICO Act as a framework for the conspiracy (it is easier to prove than its federal equivalent, and it encompasses a lot of the remaining charges, thus helping create a streamlined narrative), there’s something symbolic about relying on a statutory machine birthed for the purpose of bringing down crime organizations, which, come to think of it, is exactly what this enterprise was.
One’s gotta love the simplicity of the opening paragraph:
Defendant Donald John Trump lost the United States presidential election held on November 3, 2020. One of the states he lost was Georgia. Trump and the other Defendants charged in this Indictment refused to accept that Trump lost, and they knowingly and willfully joined conspiracy to unlawfully change the outcome of the election in favor of Trump. That conspiracy contained common plan and purpose to commit two or more acts of racketeering activity in Fulton County, Georgia, elsewhere in the State of Georgia, and in other states.
After defining the relationship between the defendants and their co-conspirators as an “enterprise,” the indictment continues its on-the-nose organized crime reference by listing the “manner and methods of the enterprise”: holding hearings in which they issued false statements about the election results, repeating these falsehoods to various office holders in Georgia, convening a fake slate of electors (complete with forged documentation–as part of the Eastman-Chesebro scheme), false accusations of election workers, stealing data, soliciting the assistance of Pence and the DOJ to bring about the reversal of fortune in Georgia and, of course, the inevitable coverup, including perjury.
As per RICO requirements, the indictment then lists 161 racketeering acts, breaking the aforementioned modus operandi into discrete events. These are a real eye opener even for those of you who were following the events in real time. At the time, I was under the impression that the Trump phone call to Georgia Secretary of State Brad Raffensperger was the coup de grâce of the whole thing, and I don’t think that was far from the truth, particularly if you listen to the whole thing:
I remember listening only to the critical bit, in which Trump bullies and threatens Raffensperger, but in the full recording you can hear his usual tactics: bombard the listeners with facts that sort of sound valid but are completely false, and revert to insults, etc., when that doesn’t yield immediate submission.
Thing is, reading each of the additional acts fleshes out a story of brutal, systematic intimidation, complete with utter disregard for the safety of election workers who simply did their job and were rewarded with death threats. The remaining 40 charges are of more particular crimes: forgeries, impersonations, threats against public office holders, etc. The emerging picture is well worth the criminal enterprise framing; this indictment, even more than the federal ones, calls Trump and his lackeys what they are.
Our family tragedy kept me in Israel for three and a half months, during which my weekly escape was the second season of HaShotreem (“The Cops”) on Israel’s Channel 12 (all episodes available on the Mako website.) The show’s first season closely followed real-life events that occurred in Nahariya in 2006. At that time, northern seaside city Nahariya was controlled and terrorized by mob boss Michael Mor, whose stronghold on drugs, protection money, etc., extended to the city’s legitimate businesses and political structure. By contrast to the U.S., Israel has a national police force, rather than independent units for different municipalities. Nonetheless, the Nahariya police could not take on Mor and his organization; national headquarters refused to offer them help, because Mor was perceived to be a local threat, rather than someone serious on a national scale; and, consequently, their intelligence and covert operations units fell apart. Major Yaniv Ashur was summoned to rehabilitate the unit and confront Mor’s organization. Ashur’s invigorated, aggressive investigation saw some success: Mor was sentenced to seven months in prison for criminal threats.
But the retaliation from Mor’s side took a sinister turn: his people targeted the investigative detectives and threw grenades into their home, and even tried to kill the current mayor, vice mayor, and former mayor. The inability to protect themselves and their families, and Mor’s impunity, brought the cops, who received no backing or protection from the station or from headquarters, to hatch a desperate plan: they decided to shake up Mor’s confidence in order to push him to make a mistake. After consulting with an explosives expert, they laid pipe bombs under Mor’s vehicle and close to a home he owned. No one was hurt, and the investigating officers initially suspected Mor’s underworld competitors. Eventually, however, through an informant, the police arrived at the truth and managed to turn one of the “avenging cops” state witness against the others. The officers were tried, convicted, and sentenced to a year in prison.
The whole affair was silenced, but somehow, the names of the suspected cops leaked to the newspaper in the form of a fictitious obituary. Mor and his associates were suspected of paying for the ad, but have declined. In any case, even after the cops’ release from prison, they continued to be targeted by Mor, until his recent arrest.
The second season of HaShotreem, which ended last Tuesday, was fictional, but shared some elements with the first. In the series, the cops, recently released from prison thanks to a campaign spearheaded by their families and generally regarded as heroes in Nahariya, are unable to return to the force because of their criminal record and face dangerous retaliation efforts from the underworld. In their despair, they take a deal offered by their colleague who turned state witness (and, in the show, remained a cop): they agree to become undercover agents working for the crime boss’s competitor and bring him down in return for restoring their efforts. In the meantime, an anti-corruption candidate challenges the current mayor (who is mixed up with the underworld). The cops engage in dangerous missions as double agents, sometimes exceeding the framework and permissions of their jobs, and end up bringing down both their nemesis and his competitor. Here’s the first episode of the second season:
https://www.youtube.com/watch?v=YTwfQXoQois&t=17s
Commentators and reviewers have praised the acting and action scenes and the show’s riveting plot, but complained that, beyond that, it does not offer a moral center. They make a valuable point. At no point during the narrative are the viewers conflicted about the goodness or moral validity of the cops’ actions. They say to their commander, “we’ve learned from our mistakes,” but have they? No one makes any convincing argument that crossing the line like this could be problematic and, in the long run, erode what little legitimacy the police still has in high-crime neighborhoods. In that respect, the cops are quintessentially Israeli heroes: good guys fighting bad guys with the end justifying any means, and with no questions about shades of gray in “goodness” and “badness.”
Admittedly, I too have empathy for the show’s protagonists and for their real-life counterparts. They were placed in an impossible situation, with serious life threats against them and their families, with no backup or protection from their superiors, and later faced a thankless system. But one does not have to eschew this narrative wholesale to ask more difficult questions about how such events can affect the legitimacy of the police overall, or about whether we truly believe that, whenever the police crosses the line, it’s for a laudable goal and against a deserving target.
It’s been especially demoralizing to think about this slippery slope in light of what is happening as the show is broadcast: the increased military and border patrol support for horrendous settler violence in Palestine; the deliberate boundary-blurring similarities between police officers and rightwinger goons beating up protestors; deliberately sloppy police investigations leaving rightwing murderers free; and the constant talk of creating right-wing militias that will further blur the line between goon and lawman. How could the show’s producers not notice that this issue raises concerns that every Israeli should be pondering in 2023?
In the previous two installments of this series, I discussed parallel processes I see in Israel and in California: rising crime rates and resulting miseries within underserved communities–Arab-Israeli towns and villages, and Black communities in Bay Area cities (disproportionately affecting these communities both in terms of perpetrators and victims). In the first installment, I showed that these issues have yielded calls from “inside the house” to improve police response to crime rates. In the second installment, I discussed a curious difference: the Arab Israeli calls are monolithic and they demand solidarity from allies in securing police presence and protection, whereas Black American calls–the recent NAACP letters in Oakland and San Francisco–are heavily contested and far from representative of the defund-abolish-dismantle-repeal sentiment. I proposed a few differences between the two scenarios and concluded that the problem is one of intra-movement politics.
In this last installment in the series, I want to posit two additional issues: one of timing and one of civic expectation. The first is, in some ways, a continuation of the argument I made in my article Bad Role Models, in which I discussed American influence on Israeli criminal justice. In that article, I showed how criminal justice developments in the U.S. migrated to Israel through a process of elite networking, often with a delay of 15-20 years, to the point that Israel implements American policies long after empirical evidence already undermines their merit or efficacy. I listed four developmental stage: the rise of American criminal justice as a model of influence; the “decade of rights”, inspired by the mistaken perception in 1990s Israel that American criminal justice is pro-defendant; the “law and order period” in the 2000s, in which Israel adopted victim rights and anti-sex-offender paradigms that were already being eschewed in the U.S.; and the “era of contrition”, in which new Israeli elites, who learned about mass incarceration in the U.S., started chipping at the punitive block.
My friend and colleague Hagit Lernau thinks that the Arab Israeli faith in policing as an answer to violent crime might be temporary, an echo of the period in the 1980s and 1990s in which Black politicians and police chiefs in D.C. wanted massive police intervention in the crack epidemic. In Locking Up Our Own, James Forman found great empathy for these Black power brokers, even though, as an abolitionist, he disagrees with them. He does not think the crime problem was exaggerated or did not exist–he fully admits that the calls for more policing came out of real distress that was grounded in fact–even as he rejects the premise that aggressive enforcement could have improved things.
To understand Hagit’s argument, let’s locate Forman’s politicians and cops along a timeline. Their preoccupation with internal community problems of crime can be seen as a retreat from Martin Luther King Jr.’s general message of a great project of equality, as well as from Malcolm X’s general message of militant opposition to white supremacy, toward sectorial interests of personal safety within Black cities and neighborhoods. This retreat, which happened in the 1980s-1990s, can be seen as a harbinger of the Arab-Israeli retreat from full commitment to the idea of Palestinian liberation/independence toward sectorial interests of citizens within the 1967 borders. If so, we might expect that the later developments in critical race perspectives on criminal justice–the academic concerns about police oppression and race and their migration to the mainstream of the progressive movement–might eventually make it in Arab-Israeli societies, perhaps through a process of elite networking (or through some other process) and we simply have to work through the delay. But eventually the moment of yearning for police will pass, and we’ll be in a defund/dismantle/abolish/repeal moment in Israel, too.
Here’s another theory on how this could happen: Perhaps, as in the case of D.C., the disillusionment that accompanies massive, oppressive police presence will cool the population’s enthusiasm for enforcement. A couple of weeks ago I talked to a friend who is a police detective investigating serious crimes, including in Arab-Israeli towns and villages. My friend tells me that, as soon as a serious crime is committed in a village, the police’s modus operandi is to send in border patrol officers, who proceed to harass and humiliate everyone around them and make life in the village unbearable. Unsurprisingly, after a few weeks of this, the officers who want to actually solve the crime encounter a wall of silence and mistrust. It is only a question of time until this realization becomes generalized and the community nationwide will stop calling for the police to help.
Which brings me to my second point, the issue of civic expectation. The famous serenity prayer invites us to have the wisdom to tell apart things that can be changed (and require courage) from things that are immutable (and require serenity.) The Forman moment, as well as the current moment in the Arab-Israeli crime prevention movement, assume that crime-ridden streets can be cleaned and that the erosion in public safety can be stopped, or even reversed, if the Israeli government wakes up from its appalling neglect and acts. The Defund movement makes the opposite assumption: nothing good can come from police intervention, so they might as well stay out of it and leave us to resolve the crime problem through non-criminal-justice means. I think both perspectives miss out on an important dimension: it doesn’t just matter how much policing is taking place, but also what kind of policing.
William Muir’s 1977 classic Police: Streetcorner Politicians offers a matrix that characterizes police officers based on their psychology. Muir is interested in two dimensions: the officer’s proactivity and their worldview. These create four types of cops.
Proactive
Reactive
Tragic
Professional
Reciprocator
Cynical
Enforcer
Avoider
Adapted from: William Muir, Police: Streetcorner Politicians (Chicago, 1977)
Out of these four, Muir’s preference is for the professional, whom he sees as an energetic, passionate problem solver who has compassion for their community. But preferring the professional to other types depends on the extent to which one believes that cops can still have a tragic/empathetic approach to human nature and the human condition. People who assume that all cops are cynical about the people they serve face a choice between enforcers and avoiders and might prefer avoiders. People who believe that some cops can be professional and compassionate, will prefer professionals to reciprocators.
If Muir’s typology is not applied to individual cops, but rather to hypothetical cops as “ideal types” of what we would and would not like to see in the streets, I think the best way to understand the Arab-Israeli call for help is as a call for professionals, not for enforcers. Which raises the question, given that we pay taxes so that we can have police services, why not insist that the force hire professionals rather than enforcers? Why give up and settle for avoiders, or for shrinking the force (and its utility) altogether? How much despair people experience and, consequently, how much they believe that they can have the police force they deserve, could be (as I argued in the previous installment) a function of where they live or (as I argue in this installment) on what moment we are in.
In the last few days, I’ve been thinking a lot about the issue I brought up in my previous post The Call Is Coming from Inside the House–situations in which a minority community with an appalling history of oppression by law enforcement asks for law enforcement intervention due to rising crime rates. I compared the Arab Israeli protests for law enforcement intervention to the letters recently penned by NAACP leaderships in Oakland and San Francisco.
What I didn’t discuss was an obvious difference in the way these calls for enhanced law enforcement reverberate within these communities and outside them, which puzzles me. As I explained in that post, the Arab Israeli community is fairly united in its call for police intervention and personal safety. The pressure on allies and other members of the center-left opposition to Netanyahu is to participate in protests calling for the police to investigate and solve these crimes. People get excoriated for not embracing this call.
By contrast, the NAACP calls I looked at in the previous post have by no means represented the consensus in the Black community and, in fact, provoked a lot of strife and antagonism. There is serious critique and questioning of the concept of “Black-on-Black crime”, efforts to present police violence as a much more important and salient problem than the crime problem, and pretty oppressive silencing of the few white voices that don’t fall in line with the “don’t call 911” ethos.
This difference in approaches is striking not only within minority groups and their adjacent communities, but also among academic and human rights milieus. In Israel, ACRI (the equivalent of the ACLU) feels deeply conflicted on what to do and who to support. And in the U.S., academics and nonprofits by and large fall in line with the idea that the priority is to curb police violence, rather than intra-racial civilian violence.
At the recommendation of a friend, I started listening to Micha Goodman and Efrat Shapira-Rosenberg’s podcast Miflegeth HaMahshavot (“The Party of Thoughts”), which explains ideologies in Israeli politics. In one early episode, they explain the rise of Ra’am, the first time a major Arab party was part of the Knesset. According to Goldman, this election represents the triumph of sectorial interests, which Ra’am sought to promote, over the big issue of the Palestinian occupation that the Joint Party, the other Arab party, sought to promote. Ironically, though, Ra’am is an Islamist party, presumably less inclined toward compromises, which raises the question how it came to offer Arab-Israeli voters a pragmatist, sectorial platform. Goodman thinks that it reflects a unique form of religious pragmatism: we, humans, worry about our immediate, short-term issues (chief among which is the intraracial crime problem), while God/Allah will worry about our ultimate salvation (an Arab state from Jordan to the Mediterranean sea).
If applied to the U.S., Goldman’s might predict a similar sectorial emphasis on restoring personal safety to the neighborhoods referred to in Supreme Court jurisprudence “high crime areas” and in sociological parlance “neighborhoods where poor people of color live.” And yet, that’s not what we’re seeing. Either fighting crime is not (or, until recently, was not) a sectorial issue of high priority for Black communities, or police violence is more of an issue of that sort. Why are we not seeing parallel processes in the two countries, then? hypothesis would So, why is there a difference?
I’ve tried to hash this with friends, and I’m not sure I’ve nailed the issue, though I have some thoughts. Let’s work through this the way Hercule Poirot would solve a crime: by gathering suspects and eliminating them from our inquiries. The first two possibilities are related to the with the relevant weight of the crime and police problems in the two countries, and I find both unpersuasive:
The crime problem and the threat to personal safety are much more serious in Israel than in the U.S. This is not something that is easy to measure, and geography makes a big difference. Crime is not evenly distributed in either country. The existence of “million dollar blocks” and places ravaged by gang warfare is unfortunate, but not fictional. I think in both places there are people living under a serious threat of violent crime.
Police violence toward minorities is a much more serious problem in the U.S. than it is in Israel. This is also something that is difficult to measure, especially due to problems of underreporting. Again, geography makes a big difference, because in both countries enforcement is selective and very geography-driven. In addition, the national security/conflict in Israel throws in another factor (there are now voices calling to involve Israel’s security service, the Shabak, in crime solving in Arab Israeli villages. Yikes.) I would have to parse out the statistics, but I don’t see that Arab Israelis are more fortunate than Black Americans in the treatment they receive from the police.
If we accept the premise that crime rates and police violence are serious problems for both populations in both countries, we should consider the extent to which the crime picture emerging from the two context is different. In other words, can Arab-Israeli crime be distinguished from Israeli crime in general to the degree that Black crime can be disaggregated from American crime? How easy is it to treat it as a unique, endemic problem? Again, two options emerge, one sociological and one involving framing.
The sociological issue: Perhaps voices in the Arab-Israeli community are more successful in raising crime rates as a problem because intra-racial violent crime in Israel is, or is perceived as, more of a stereotypically/characteristically Arab/Palestinian problem than intra-racial violent crime in the U.S. is perceived as a stereotypically Black problem. This requires viewing murder cases, including unsolved murders, through a criminological lens. I have the 2021 data. What it tells us is that Arab- Israeli murders might not be as distinctive as the media suggests. In a previous post I described the disturbing statistics about the murder of Arab women, but those are less than 13% of overall murders in the Arab community. We know most of these are shoot-outs and most of the victims are under 30 years old. This doesn’t seem to paint a picture full of honor killings and, in fact, resembles organized crime killings in the U.S. Both countries also feature problems involving the proliferation of guns in criminal hands that are certainly not limited to this or that ethnic/racial group. It is true that, in Israel, 64% of murder cases are perpetrated by Arabs (usually against Arabs), who are merely 21.1% of the general population. FBI UCR data for 2019 shows that African-Americans (who were 14% of the U.S. population in 2021) accounted for 55.9% of all homicide offenders in 2019. In both cases we have considerable overrepresentation that cannot be explained merely by discriminatory policing/investigatory practices.
The framing issue: Perhaps politicians on the left in Israel feel more comfortable calling for police intervention to solve intra-racial crime in Israel because there it is not perceived as being tied to, or stemming from, the Jewish/Zionist hegemony to the extent that intra-racial crime in the U.S. is perceived as a response to white supremacy. Even if this is true, it raises a further question: what impacts the framing?
Which brings us to the final frontier: I think that a big difference between Israel and the U.S. has to do with intra-movement politics and positionality, and these factors are responsible for how the problem is framed:
I think that Goodman is right in that Israeli Palestinians/Arabs have become more invested in sectorial politics, while the U.S. Black community has by-and-large retained its interest in the bigger questions of criminalization/incarceration.
This could be related to the respective size of the two countries in two ways. First, in Israel there’s more segregation in terms of where people live. This means that educated, middle-class Arab Israelis will live in closer proximity to crime than middle-class Black Americans and, because of that, will be more invested in personal safety and law enforcement (this is in line with James Forman’s argument about D.C., which is a city in which Black politicians and police officers hold considerable power and use it to “lock up their own.”) Second, the sheer population of the minority group is so much smaller in Israel that, to the extent that someone even cares about the plight of the community, it will hear mostly from middle-class, law-abiding folks afraid to let their kids outside to play; in the U.S. there’s a multiplicity of voices which, amplified by social media and activism, includes the interests of those more concerned about police persecution than about crime prevention.
Finally, I think the Israeli scenario contains an important factor: Arab/Palestinians who are Israeli citizens are in a completely different situation than Palestinians living in Palestine. The latter are in such dire straits, and treated so appallingly by the army, the security services, and the settlers, that the police-citizen encounters against Israeli citizens, ugly as they may be, don’t even register as a problem by comparison.
The image above, captured by movement photographer Gal Mosenson, comes from a protest held yesterday in Tel Aviv in support of the Arab-Israeli population. As some commentators have mentioned, Arab-Israelis are conspicuously and understandably absent from the pro-democracy, anti-government protests; the proliferation of Israeli flag and the coalition with centrist movements, obscuring the occupation of Palestinian land and the horrors visited not only on Palestinian refugees but on Israeli citizens who are ethnically Palestinian, are huge hindrances to collaboration. Yesterday’s protest organizers asked their Jewish allies to show up without protest t-shirts or Israeli flags.
I’ve previously posted about rising crime rates amongst Arab-Israelis, and things have grown even more dire since then: the number of murder victims is skyrocketing. The confusion among civil rights organizations whether to support the Arab-Israeli demand for assistance from a police force that oppresses and uses violence echoes some of the dilemmas that James Forman spelled out in Locking Up Our Own. But there’s something deeply patronizing about downplaying calls from thoughtful citizens who have realized that they simply cannot have their kids leave the house out of fear of shoot-outs and family vendettas gone wrong.
Meanwhile, in the New World, similar calls are being heard regarding crime rates in Oakland and San Francisco. The Oakland call comes from no other than the NAACP:
Oakland residents are sick and tired of our intolerable public safety crisis that overwhelmingly impacts minority communities. Murders, shootings, violent armed robberies, home invasions, car break-ins, sideshows, and highway shootouts have become a pervasive fixture of life in Oakland. We call on all elected leaders to unite and declare a state of emergency and bring together massive resources to address our public safety crisis.
African Americans are disproportionately hit the hardest by crime in East Oakland and other parts of the city. But residents from all parts of the city report that they do not feel safe. Women are targeted by young mobs and viciously beaten and robbed in downtown and uptown neighborhoods. Asians are assaulted in Chinatown. Street vendors are robbed in Fruitvale. News crews have their cameras stolen while they report on crime. PG&E workers are robbed and now require private security when they are out working. Everyone is in danger.
Failed leadership, including the movement to defund the police, our District Attorney’s unwillingness to charge and prosecute people who murder and commit life threatening serious crimes, and the proliferation of anti-police rhetoric have created a heyday for Oakland criminals. If there are no consequences for committing crime in Oakland, crime will continue to soar.
People are moving out of Oakland in droves. They are afraid to venture out of their homes to go to work, shop, or dine in Oakland and this is destroying economic activity. Businesses, small and large, struggle and close, tax revenues vanish, and we are creating the notorious doom-loop where life in our city continues to spiral downward. As economic pain increases, the conditions that help create crime and criminals are exacerbated by desperate people with no employment opportunities.
Notably, their call to action recognizes the progressive shaming that hinders action, and they call out the relevant communities without mincing words:
We urge African Americans to speak out and demand improved public safety. We also encourage Oakland’s White, Asian, and Latino communities to speak out against crime and stop allowing themselves to be shamed into silence. There is nothing compassionate or progressive about allowing criminal behavior to fester and rob Oakland residents of their basic rights to public safety. It is not racist or unkind to want to be safe from crime. No one should live in fear in our city.
A somewhat more tepid call, but still important, comes from San Francisco’s NAACP President:
It can be difficult to exercise compassion when the situation is this dire. In one of the wealthiest cities in the world, poverty remains a significant problem, made worse by ever-increasing income inequality. Too often, our reaction to this suffering is to call for it to be removed in sweeps that only create more suffering by moving the problem to a new place in the city. We have seen regrettable responses, such as the owner of a North Beach art gallery who sprayed an unhoused woman with a hose when she refused to move from the sidewalk in front of his business. I understand his frustration, but as difficult as it is, we must exercise compassion; today, I am working with the gallery owner to help him through this challenge.
But compassion must be accompanied by responsibility.
First and foremost is for people in this city to take personal responsibility, even in the most difficult of circumstances of being unhoused.
Setting up an encampment underneath an occupied building and setting open fires, as has happened recently in the Haight, is utterly unacceptable. So is erecting a tent city that prevents others from safely walking in their neighborhoods or makes it dangerous for them to come and go from their own homes. Engaging in open drug use, committing violence and carelessly creating unsanitary conditions are all the outcome of a lack of personal responsibility.
We also must practice community responsibility. Those who need help should be able to receive it, and we need to take the steps to streamline the creation of safe, affordable housing to get people off the streets permanently. At the same time, there must be consequences for those who refuse help yet continue to refuse to take personal responsibility for their actions.
Perhaps the most important thing we need, however, is accountability — by the city, by the array of agencies and organizations that serve the unhoused and those dealing with addiction, and by the larger community. Too much money is spent without effective oversight, coordination and collaboration. We can provide an individual with some of the help they need but fail to connect them with other essential resources. Organizations duplicate efforts, work at odds with one another, and in the end, fail to solve the problem they all profess to be fighting.
I assume the culture wars will now lead to an argument that the NAACP has sold out to white supremacy or whatever (the term “personal accountability” in particular, as my friend Paul Belonick notes, will be read by some as a right-wing dog whistle), but that would be reductive, disappointing, and mostly disrespectful. At some point, this movement will have to contend with the fact that the call is coming from inside the house, and that the big talk about “lived experience” means we should believe people who tell us they can’t live with crime around them.
Twenty years ago, when I studied radical/critical criminology, it struck me that the biggest weakness of Marxist/critical race theories were that, for all the political incentives of the oppressed to fight against the machine, the vast majority of poor people of color do not commit crime. And the fact that crime, especially violent crime, tends to operate intraracially. The radical rhetoric was intoxicating, but after years in the military defense, seeing how the haves and the have-nots fared, I realized that left realism was the best framework for understanding what I saw around me. What is novel and worthwhile about the calls for help from the Arab-Israeli community and from the Bay Area NAACP chapters is that it’s not just about oppression: they realize that enforcement must come hand in hand with opportunities for youth, otherwise there is no hope for the community. The Oakland NAACP writes:
Our youth must be given alternatives to the crippling desperation that leads to crime, drugs, and prison. They need quality education, mentorship, and, most importantly, real economic opportunities. Oakland should focus on creating skilled industrial and logistics jobs that pay family sustaining wages, and vocational training so Oakland residents can perform those jobs. With this focus we can produce hundreds, if not thousands, of the types of jobs desperately needed to stem economic despair. Unfortunately, progressive policies and failed leadership have chased away or delayed significant blue collar job development in the city, the Port of Oakland, and the former Army Base. That must change!
We also must continue with mentoring programs like the Oakland branch of the national OK Program that steers youth away from criminal activity. We believe that young people currently in the criminal life will choose another path if they are shown a way.
The idea that improving opportunities reduces crime is not new. It comes from Cloward and Ohlin, architects of Opportunities Theory. Even in the late 1950s it was evident that young people treated as second-class citizens make use of the opportunities available to them, and those tend to be illegitimate opportunities. This is common sense, but what I see all around me (Elizabeth Hinton’s From the War on Poverty to the War on Crime is a prime example, but there are others for sure) is derision of Cloward and Ohlin as white, top-down do-gooders who are almost (if not absolutely) worse than rightwingers. The appeal of Hinton’s argument is that it is clever and counterintuitive, and it is just perverse enough to appeal to academics who don’t have to actually deal with the people victimized by crime in dilapidated neighborhoods. Margo Schlanger presents this critique against another one of these lefties-are-worse-than-conservatives books, Naomi Murakawa’s The First Civil Right.
The secret truth–the thing that happens to best reflect reality, but does not fill auditoriums or gets you coffee with the cool people at socio-legal conferences and punishment workshops–is that Cloward and Ohlin were right. It’s not sexy to talk about namby-pamby proposals for reform, but Lyndon Johnson had the right idea initially, as did Kennedy, and the reason it didn’t work is related to a lot of things, but not to the fact that crime was just a figment of the conservative imagination. Crime was real in the 1950s, and it was real in the 1980s, when lots of people had to live in environments saturated with lethal violence brought about by the crack epidemic. That the CIA is now widely, and rightfully, acknowledged as having at least negligently brought that about by turning a blind eye from midlevel drug dealers, doesn’t mean those years did not exist. It does not mean that thousands of people did not die from addiction or addiction-adjacent violence, and many more ended up incarcerated for the same reasons. Reality is not spicy, but it’s an essential ingredient in cooking up criminal justice policy. And who best to obtain a reality check from than the people who have to live with the outcomes?
If I’m going to be truly respectful–listening to people’s “lived experience” in crime-ravaged zones not only when it fits my politics, but whenever they opine about something they actually know best–I have to respect that the call for crime control is coming from inside the house, from unimpeachable, reliable sources, and that the wave of pretending that crime doesn’t exist either has crested or is very close to cresting. Criminal justice professionals like Pamela Price might realize that her constituents don’t actually want the sort of nonjustice her office is doling out (I read that scenario as different from Chesa’s recall, but there are parallels.) Whoever brings about nonjustice ends up with Nancy O’Malley or Brooke Jenkins as DAs, and that is not a scenario in which anyone, right to left, can thrive.
Last night I finished copyediting FESTER (or, more accurately, responding to our copyeditor’s queries, which were blissfully few.) Indexing, cover art, and other stuff should follow, and we won’t be at your favorite book purveyor until January 2024. But we already have an ISBN for all three editions–hardcover, paperback, and ebook–and that makes the book feel more real somehow. As regular readers know, this has been a rough, rough summer, submerged in heartbreak and tragedy for my family and beyond, and any step forward feels like an accomplishment.
Reading the book again after several months of disengagement clarified some of what happened in the world since then. In Chapter 7, we wrote about Leslie Van Houten’s parole quest in the context of COVID-19 (I still think that denying a fully rehabilitated septuagenarian person’s parole while their institution experiences an outbreak reeks of politicization); I don’t think either of us imagined that, so shortly afterward, Van Houten would prevail in court and the judges would call Newsom’s “lack of insight” bluff so plainly and explicitly, resulting in her release. Having reread our manuscript, I now wonder whether the court’s newfound courage to push against denial decisions that turn our prisons into nursing homes is part of the sad legacy of the pandemic. Recall that it was the California Court of Appeal that recognized the gerontological aspect of the prison pandemic and urged CDCR to factor people’s age into account more clearly when seeking population reductions. Everything involving work is wrapped in a fog of exhaustion and despair now, but just a couple of short weeks ago I managed to give an interview about Van Houten’s release to Nightline, and was later dismayed that the mainstream coverage of her release was idiosyncratic and focused on the uniqueness of the case. I wish they had made more of an effort to see the decision as part of a possible post-pandemic reckoning.
Another thing that struck me lately was how not just courts, but everyone, seem so eager to file the COVID disaster away as a “one off” and learn nothing from it. A week ago I gave a talk (on a different topic) to police detectives investigating serious crime in Haifa. Conversation veered toward the age of prisoners; at least one of the officers expressed strong, even angry, resistance, sharing anecdotes about the rising crime toll in Arab towns and villages and saying that age does not seem to be a barrier for family vendettas. This may well be true (and here, it is a true epidemic), but it’s also true that family honor killings are a unique phenomenon with unique features and by no means characterize crime throughout the world. When I talked about the risks of incubating COVID in prisons, the chorus in the room was “that was an isolated case, it has nothing to teach us about appropriate sentencing.” For this reason, I’m delighted that the UCLA COVID-Behind Bars Data Project is pivoting toward charting mortality in correctional facilities more generally. With valley fever still a factor in central valley prisons, mpox in jails, and who knows what other horrors that flourish in filthy, overcrowded places in the wings, I want to see more thought put into the continuum between prisons and their communities. If we encounter questions about this on the book tour, we should have data on other mortality factors and chronic disease issues to show the relevance of COVID to the next phase in correctional policies.
I also reread the parts we wrote about the #StopSanQuentinOutbreak coalition, which would later be partly depicted in Adamu Chan’s film What These Walls Won’t Hold. In the last few weeks I’ve watched, with bitterness and dismay, the internal splits in Israel’s protest movement and in the open rescue community. It’s the stuff of my nightmares and the main reason I stay away from many activist spaces, particularly with younger people who take to in-movement splintering with natural joy that repels me. I can’t stand the moralizing, schoolmarmish idioms, flagellation (of self and others), massive hatred directed at the people who are closest to the haters and most want to help, and since it’s such a defining feature of any experience on the left I try to avoid this stuff like the plague and work around it as much as possible. The #StopSanQuentinOutbreak coalition was different. This is not to say it was completely devoid of the usual diseases of activist space: there was a “white people group,” though I’m not sure whatever for (I seemed to be the only person to whom this wasn’t clear) and there were some of the usual speech tics of the movement. But for the most part, what I experienced was a bunch of great people from all walks of life–family members, folks just recently released who rolled their sleeves right away and got to work, people of all ages and professions–who came together to do whatever it took to save lives and get folks out. Perhaps the urgency of the group was part of the appeal: most folks belonged to the big tent of abolitionism (whatever the hell that even means anymore) but the dismantlement of all prisons was not on the table. Saving old, infirm people from a preventable disease augmented by the ineptitude, indifference, and sometime sadism of a garbage system was. Which made a lot of the usual shibboleths and speechifying unnecessary and freed everyone, regardless of perspective, to tend to what was in front of them in a practical way. Perhaps if the left were less precious, smug, and academic, and engaged in activism as an emergency response (climate! Collapsing democracies worldwide! Health and poverty crises!) we could unite more and accomplish more. This is why I still maintain (and you’ll see it in the book) that aggressive pruning of the prison system (Cut 50!), particularly in the context of aging and infirm people, is eminently practical and achievable and not at all an abolitionist pipe dream. If we treat this with the urgency it deserves, rather than as an esthetic prop for our goodness, you’ll be surprised what we can accomplish.
As FESTER continues its production journey, I’ll share info about our cover art, blurbs, reviews, and release. Expect a big party in 2024 and a string of fabulous book tour conversations in the year to follow.
It’s a surreal experience to read the new Trump indictment, which you can find here verbatim with NYT annotations, while in Israel – it reads disturbingly prophetic about other parts of the world. It’s also been deeply unpleasant to relive the events from last year, as they are narrated chronologically and concisely (rather than revealed daily through the news cycle.) I just spoke about this with the one and only Mitch Jeserich on KPFAand here’s a link to the show. Here are some of the basics.
Charges
The indictment consists of four counts, all of which are based on the same factual basis:
Conspiracy to Defraud the United States, which requires proving that (a) two or more people (b) conspire to commit an offense against or defraud the United States and (c) at least one of them commits an act to further the conspiracy (5yrs max and/or a fine);
Conspiracy to Obstruct Justice, which requires proving that (a) two or more people (b) conspire to obstruct justice [see below] and (c) at least one of them commits an act to further the conspiracy (sentence is the same as for obstruction, a 3yr exposure);
Obstruction or Attempted Obstruction of Justice, which requires proving that the defendant (a) knowingly (b) use intimidation/threats/corruption to (c) persuade or attempt to persuade another person to (d) change documents or withhold records needed for an official proceeding, or, which is more directly applicable here, that the defendant (a) corruptly (b) obstruct, influence, or impede, (c) an official proceeding (3yr exposure); and
Conspiracy Against Rights, which requires proving that (a) two or more persons (b) conspire to injure, oppress, threaten, or intimidate any person (c) in the free exercise or enjoyment of any right or privilege [in this case, the right to vote.]
Who
Only Trump is listed by name in the indictment, with six other co-conspirators referenced by numbers. The purpose is, likely, to leave the door open for any of them to decide to testify against Trump before they are named and officially charged. Five of the co-conspirators are fairly easy to identify based on the information we already have about the 2020 election putsch: Co-conspirator 1 is Rudy Giuliani, Trump’s right-hand and spreader-par-excellence of manufactured election fraud conspiracies; co-conspirator 2 is John Eastman, the spirit behind the effort to puppeteer Pence, VP and President of the Senate, into subverting his ceremonial role by refusing to certify the electors for Biden and certifying fake electors for Trump in their stead; co-conspirator 3 is Sidney Powell, disgraced attorney who tried (and lost) Trump’s baseless election cases; co-conspirator 4 is Jeffrey Clark, Trump’s man in the Department of Justice who met with Trump behind his bosses’ back to further the conspiracies even they would not back and tried to fire his own boss; co-conspirator 5 is likely Kenneth Chesebro, the mind behind the fake electors’ scheme and the operator filing sham legal proceedings so as to swindle the fake electors into agreeing to participate in the scam; I’m unclear on who the sixth co-conspirator can be, and it looks like mainstream media commentators are alsounsure. This person, who is described as a “political consultant,” was behind some of the memos that crafted the language submitted to the fake electors.
What They Did
The story of what happened before January 6th was eclipsed by the violent putsch that follows, which is why you can be forgiven for forgetting the details (they were also doled out chaotically and serially while the events were happening.) Reading the indictment brought the story and the characters back into clear focus, and here’s a simple (hopefully not oversimplified) chronology.
The way the U.S. presidential election works is this: each state has its own regulations for figuring out the popular vote.
This means that, when challenging presidential election results, candidates have to interact with state bureaucracies and pursue litigation in the different states attacking the integrity of the election. The indictment does not attack all of Trump’s litigation challenges which, while frivolous (32 submitted, 0 won) were not unlawful. It focuses on illegitimate pressures and threats that Trump & Co. placed upon various state bureaucrats, most famously in Georgia (the “find me enough votes” threat emitted to the Georgia Secretary of State, now the focus of a state criminal investigation that might ensnare Trump in more criminal proceedings.) Trump’s incessant harassment of state bureaucrats–most of them loyal to Trump, people who worked for his campaign and hoped he would win but did not go as far as to throw the election his way–consisted of banding around (and repeating) false theories of fraud (which Giuliani and others parroted around social media), consistently ignoring the refutations of state officials, lying to them about supposed evidence that backed up the conspiracy theories, threatening them with criminal charges or political consequences, and repeatedly pestering them to deliver results in the face of no factual support for fraud claims.
Severe as these behaviors were, the heart of the indictment has to do with how Trump and his co-conspirators attempted to manipulate the electoral college process to thwart the popular vote. This NPR story, published during Trump’s scheming but before January 6th, offers a good primer to how states select their electors. In short, there are 538 electors, one for each U.S. senator and U.S. representative, plus three for Washington, D.C. Electors are selected by the state, usually from lists made by state parties. In 32 states and D.C., electors must vote for the candidate the party has nominated, and the Supreme Court has found that laws that bind electors to the outcome of the popular vote are constitutional. The list of electors by party is certified at the state level and then sent, through a special verification process, to the senate, where it is ceremonially certified by the Vice President. The electors then cast their votes–if a candidate won by majority, he or she receives all the electoral votes–and thus the presidential election is decided (watch this video of how the electors announce their vote casting.)
Trump’s conspiracy targeted this process. [Probably] John Eastman and [probably] Kenneth Chesebro concocted a legal theory according to which the Vice President, who is also the President of the Senate, holds an authority over the electoral process that goes beyond his purely ceremonial role of certifying the electors. According to their theory, Mike Pence could simply refuse to certify the electors’ votes, opting instead to certify votes by a slate of alternative electors casting their votes for Trump. To make this theory into reality, they reached out to prospective electors to persuade them to participate in this scheme. Some refused to have anything to do with it, and many others expressed doubts about the legality of this plan. To mollify and assuage them, the co-conspirators lied to some of the alternative electors in some of the states, telling them that their votes for Trump would only be used in the event that litigation produces evidence of election fraud. For verisimilitude of these false claims, Trump’s operatives–Giuliani, Powell, and their lackeys–actually filed frivolous cases in the seven states in which this plan was pursued, persuading the so-called alternative electors that things were being set in motion that could result in their votes counting (the plan was to push forward these fictitious votes regardless of the lawsuits.) In some cases, the co-conspirators (notably, Chesebro) crafted the fallacious elector certificates themselves. The co-conspirators tried to push these slates of electors onto the Vice President’s staff, in some cases with the staff members declining to receive them on his behalf.
Pence also had to be convinced to go along with this scheme, and so, Trump et al. conducted numerous meetings with Pence, putting direct pressure on him to participate in the face of his repeated declarations that he did not believe he had the authority to thwart the popular vote. Trump’s choice of words at these meetings matters: he threatened Pence to publicly criticize him for his refusal to participate in the plan (this rebuke reverberating in the social networks during the ramp-up toward January 6) and included only certain people at the meetings (notably, not the White House Counsel, who repeatedly stated that the plan was not legitimate.) Trump also used Jeff Clark to pressure his superiors at the Justice Department (notably, Jeffrey Rosen, then the Acting Attorney General) to go along with the electoral thwarting plan. You can find more information about the near-catastrophe in the Justice Department in this Washington Post piece. Essentially, if Rosen et al. were not going to go with the fraudulent electoral votes, Trump would fire them and place Jeff Clark atop the Justice Department; he backed down from this plan only when told by White House counsel that mass resignations would ensue.
Even though the indictment does not tackle Trump’s role in inciting the Jan. 6 putsch, it does tie those events to the charged offenses. While engaging in the machinations required for the fraudulent electoral plan, Trump continuously manufactured public belief in the integrity of the plan by tweeting about it to his fans and stoking their anger toward Pence and others who would not play ball. This was the trigger for the Jan 6 gathering, which Trump initiated, and the hook for the insurgents’ rage.
Criminal Behavior vs. Atrocious Behavior that Isn’t Criminal
The indictment seeks to provide clarity on what parts of Trump’s behavior surrounding the elections were and were not criminal. Much of his truly atrocious behavior, such as the lies he massively and systematically spread about the legality of the election, were the epitome of maliciousness and political irresponsibility, but according to the indictment do not constitute criminal offenses, as they fall under the umbrella of free speech: Trump had “a right, like any American. . . to claim, falsely, that there had been outcome-determinative fraud during the election and that he had won.” He also had a right–which he used, by engaging in frivolous litigation–to use legitimate means to challenge the results of the election. The indictment distinguishes these behaviors from the unlawful steps Trump and his co-conspirators undertook to change the results of the election–namely, threats, pressure, and efforts to bring about a fictitious and delusional legal process by which Pence, singlehandedly, would discount the votes of American citizens and instead would hand the decisionmaking process to fake electors.
This distinction might be clear to me and you, but I decided to take a trip through the looking glass and read up on Fox News to see what Jonathan Turley and Andy McCarthy are peddling. Out of all the drivel in that story (political witchhunt yada yada) the least preposterous proposition comes from Andy McCarthy, who has this to say about the fake electors theory: “[I]n this country, what we do with frivolous legal theories is we figure that the jury system will take care of it or the political system will. We don’t criminalize them. And that’s what this indictment attempts to do.” In other words, McCarthy seems to bundle John Eastman and Ken Chesebro’s fake electors plan with the legitimate efforts to reverse the course of the election: rather than a malicious, fictitious scheme to wrest the election results from the hands of the electorate, this was merely a legal theory–and don’t all legal theories stand a chance? The answer the indictment provides is this: there’s a difference between submitting to a court the possibility that the Dominion machines were flawed or that people who shouldn’t vote did (nonexistent folks, nonresidents, noncitizens, dead people), all of which are legitimate challenges to the election whether they succeed or (as in this case) fail, and submitting a proceeding according to which it is, on this planet, totally fine to substitute actual votes for imaginary ones and then threaten, pressure, and push people to pretend that the imaginary votes are real. At least McCarthy admits the theory was “frivolous”; even a broken clock shows the right time twice a day.
The Mental Element (Mens Rea)
All the charges pursued in the indictment require a fairly high degree of intent: conspiracy calls for intent to further the aims of the conspiracy itself, and obstruction of justice requires general intent. For our purposes, a criminal conviction here could result only if a jury agrees that Trump actually knew that the false fraud theories he was peddling on social media and threatening state secretaries to accept were, indeed, false. The indictment spends a long time elaborating how we know that Trump was lying, rather than delusional. I’m not sure the distinction is as clear to me as it is to them. We’re clearly talking about someone with serious delusions of grandeur, and I think that serial liars and psychopaths are successful in what they do because, on some level, they believe the lies they tell. I wonder whether the defense theory here will be that the lies were actually true (this is not a winning proposition in court, but they might luck out with some Trumper jurors) or that Trump thought they were true (which is also going to be tough to prove, given the multiple sources, including people close to him and credible to him, who repeatedly tried to disabuse him of these notions.) I’m betting his ego will not let him claim any sort of mental deficiency or clinical delusion.
What This Portends for 2024
Dan Rather (whose newsletter Steady is always a worthy read) wrote today:
Today marks a reckoning, but it’s far from a resolution. The danger Trump and his legions of MAGA supporters pose remains very present, very real, and very dire. The polls indicate this con man, divisive charlatan, and wrecking ball to the rule of law is running away with the Republican nomination for the presidency. And he looks, at this point, despite everything, to be competitive with President Biden. He could be reelected.
The more scrutiny he receives, the more evidence of his unfitness for office is laid out publicly, the more his stalwarts rally behind him. Trump has no coherent or persuasive rejoinders to the numerous charges he faces. He instinctively relies on his overused playbook of lies, divisiveness, and dystopian rhetoric. It’s all he’s got. Nevertheless, his crowds roar their delight without hesitation.
This is certainly true with respect to the Fox News commentators whose takes I read this morning, and I’m sure the talking points were set long ago. Nothing will persuade the truly faithful. A lot of what will happens here depends on timing. Should Trump be able to run and, perhaps, get elected, all this effort will come to naught, and if, Goddess forbid, I were on the defense team, my number one mission would be to file for continuances upon continuances. It’s not likely that there will be immediate movement on this in a criminal courtroom anytime soon. The voir dire will be absolute hell and the media coverage will be ridiculous.
