Offensive Speech in Terrible Times

Like many other campuses around the United States, mine is papered with despicable flyers espousing an ignorant perspective on the Israel-Hamas war. My Jewish students are understandably upset and infuriated, and so am I. Every day brings fresh, unbearable details about the massacre. The contrast between that and my outside surroundings is a dissonance that fractures me to the core. In the coming days, many campuses, including ours, will see abominable displays of hatred, antisemitism, and a breathtaking level of illiteracy regarding international affairs. We’ll see laughable, imaginary coalitions between, say, Hamas and the fight for trans rights. This will be ugly and it will be emotionally difficult to stomach. It already has been a difficult struggle to function at work and it’s likely to endure for some time.

At such times, supporting a legal regime that has absolute free speech is deeply distressing and challenging. I finally found out who first wrote, “I detest what you write, but I would give my life to make it possible for you to continue to write”–it was Voltaire biographer Evelyn Beatrice Hall, in 1906. For First Amendment enthusiasts, this era epitomizes that sentiment–the price of freedom is walking around with a broken heart, even if the open goal of the speakers is to break it.

The image above depicts the Illinois Holocaust Museum in Skokie, IL; in the 1970s, Skokie was the setting for a free speech debate culminating in a Supreme Court decision that in many ways reminds me of the situation on the ground today. David Goldberger, at the time the legal director of the ACLU of Illinois (and later an Ohio State law professor specializing in free speech) has written a fascinating account, complete with images, of his representation of the Nazis in this case–not only what it was like to have them for clients, but also the public response. I really recommend that you read it verbatim. Among many things I didn’t know was the fact that Meir Kahane, in many ways the ideological granddaddy of murderous Jewish nationalists like Ben Gvir et al., started his activity in the US with the Jewish Defense League, who appeared at the ACLU offices with baseball bats! Another thing I didn’t know was that the ACLU’s choice to represent the Nazis in the Skokie trial led to tens of thousands of resignations, but also to some support letters from holocaust survivors who said that “they wanted to be able to see their enemies in plain sight so they would know who they were.” The ACLU is taking the same approach regarding the protests we are experiencing now.

I really recommend reading Goldberger’s entire account, and it’s even more interesting to ponder it through a comparative lens. Not all countries have absolute free speech; many place limitations on hate speech and incitement to racism or violence. That approach ushers its own host of problems: what is and is not “hate speech” or “incitement” is a subjective determination, and judicially delving into these questions inevitably brings in ideological perspectives and heuristics. I’m already seeing some troubling incidents in Israel in which universities and schools waste precious time and energy on McCarthyist investigations of their students, faculty, and staff.

It’s important to distinguish the general question of what should and should not be legally allowed from the more particular question, what these opinions tell us about the quality of the education we provide and about the quality of the people who espouse them. For some idea on how these ideas fester and infect people to this degree, read Julia Steinberg’s account of her own education. It exposes many of the flaws of what passes nowadays for progressive education, and dovetails with my unwillingness to responsibly participate in similar indoctrination efforts at my workplace and elsewhere. Steinberg’s piece was an important reminder that hateful idiots don’t spring into being, fully formed, in college or law school; they are raised to be the way they are in their K-12 years. I, for one, plan to keep a very watchful eye on my child’s education, to ensure that essentialist, separatist identitarian rubbish isn’t inflicted on the kids in this mindless manner.

It is also important to distinguish the right to free speech from the consequences of putting oneself out in public espousing horrendous views. Several law students in fancy schools are finding out, to their shock and surprise, that law firms are not all that keen to hire people who publicly extol the virtues of slaughtering, raping, maiming, burning alive, beheading, and kidnapping people. That being an antisemitic idiot with repugnant views is not a professional asset and has consequences in the job market shouldn’t be particularly surprising, unless you spent your undergraduate years under the tutelage of morally bankrupt people for whom espousing these “edgy” and “interesting” views was a calculated career strategy that catapulted them to prominence in fields like ethnic studies (read here a courageous letter by a UC Regent calling out the Ethnic Studies faculty council letter for what it is.) No wonder these students think they can spew horrid opinions in public and face no consequences whatsoever. What I find most amazing about the whole thing is that some of my colleagues are surprised by what they see on the campus quad. How is any of this surprising? Academic institutions, including the ones I work for, have breathed life into this Golem for years, and the last thing they should find astonishing is when it comes for them. They taught these people, but they didn’t educate them, and the proof’s in the rancid pudding.

Georgia Indictment Calls Trump & Co. What They Are: A Criminal Organization

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.

The Call Is Coming from Inside the House

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.


Hat-tip to Paul Belonick and Emily Murphy for the NAACP links.

Yet Another Trump Indictment Explainer

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 KPFA and here’s a link to the show. Here are some of the basics.


The indictment consists of four counts, all of which are based on the same factual basis:

  1. 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);
  2. 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);
  3. 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
  4. 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.]


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 also unsure. 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.

Your One-Stop-Shop for Trump Indictment Explainers

Well, here we are: the arraignment of Individual One for a 34-felony indictment, has happened, and by tomorrow, many questions and explainers will be swirling around, so I gathered a few of the basics in this post (I would say I curated them for you, but I’m fed up with everyone saying “especially curated” as if compiling any list of thingamajigs were an artistic accomplishment comparable to putting together an exhibit at the Louvre. Thank you for listening to my TED talk.) If you’d like to take another look at the original materials, here’s the indictment and here’s the statement of facts. The NYT has provided an annotated version. For more, click here for a KPFA interview in which I discussed the indictment and next steps with veteran journalist Mitch Jeserich. Things to watch out for:

1) Why aren’t they listing the crime Trump was trying to commit by paying the hush money? This article suggests it’s a strategic choice (but wouldn’t they have to prove that, as an element of the felony? the NYT seems to think they don’t have to prove that, only the intent. I’m not 100% sure this is true.) And there’s also a jurisdictional question: Can that crime be a federal crime? Here’s coverage on Vox explaining this problem and how the rule of lenity plays into this. 

2) Why no conspiracy charges? I haven’t seen this covered anywhere and, honestly, I’m perplexed. Under NY law, here are the various permutations of conspiracy. If they can prove what’s in the statement of facts beyond reasonable doubt, they have conspiracy in the bag. Odd. 

3) Is everyone rejoicing? Look at this Gallup poll. Big shocker: opinions vary across the political spectrum. 60% of people approve of the decision to indict, and 76% think the decision was politically motivated (this obv. includes a big chunk of those who approve of the indictment.)

4) Is there going to be a mug shot? Not unless it’s photoshopped (I know fake ones are already in wide circulation.) He did get fingerprinted, but here are the prosaic reasons for the lack of a mugshot. 

5) What is the defense going to do in terms of pretrial motions? If I were the defense here, I would try to move to dismiss on the basis of general due process concerns (political targeting, the vagueness in the indictment.) If I were unsuccessful, I would move to change venue out of New York, where it will be difficult to find a sympathetic jury, but this maneuver is likely to fail (exposure to the upcoming media circus will be a factor anywhere in the country.)

6) What did Trump say at his press conference at Mar-a-Lago? As expected, he denounced Bragg as politically motivated. Here’s the coverage on Fox News (!).

“Sanctuary Cities” Are Not Biblical Sanctuaries

It’s been a month since I posted here! Life is thick with responsibilities and joys–family, athletics, spirituality, the daily grind of work–and so I haven’t had a chance to come up for air. But I wanted to briefly comment on a recent Chron story that one of my students (thank you!) sent me. It involves an unusual request by San Francisco’s D.A., Brooke Jenkins, to solicit federal cooperation in a matter involving two men accused of (unrelated) heinous crimes who are currently abroad, having fled our jurisdiction: she wants them extradited and tried here in San Francisco.

The simple and accurate response to this is exactly the one that Supervisor Aaron Peskin, often the voice of reason on the Board, voices in the article:

[T]he waiver Jenkins is pressing for is unnecessary, because nothing in San Francisco’s sanctuary city law prevents Homeland Security from apprehending and extraditing the two fugitives so that they can be prosecuted in San Francisco. He added, moreover, that the board would have to approve an ordinance to grant the exception, which means it would have to be debated in committee, subjected to two board hearings, signed by the mayor and set on the books for 30 days before taking effect, in late March at the earliest. 

By contrast, he said, “the feds can apprehend these people tomorrow.”

I feel like I need to highlight this because, in my circles and more generally, there seems to be an exaggerated sense of the protections that sanctuary cities or states can afford undocumented immigrants and other noncitizens. It seems we have forgotten the Trump days in which ICE personnel roamed the streets of the Mission looking for potential people to deport and we all had our cellphones at the ready in case someone was nabbed off the streets and needed help. They were not doing anything unlawful; they were doing something meanspirited and cruel, which is a completely different problem. While the federal government and the state of California are two separate sovereigns, they do operate in the same physical territory, a little bit like China Miéville’s book The City and the City. We don’t have to cooperate with them, but we can’t stop them from operating throughout the same geographic space on their own accord.

This has a few important corollaries. First, it is one more example in which the concept of geographic space needs to enter the criminal justice conversation. I have high expectations of carceral geography as a field of study, but I worry that it’s become basically like sociology of punishment with more abstruse jargon and a lot of metaphor, when there’s lots to be said about the practicalities of physical space. In that respect, our forthcoming book FESTER espouses a really pedestrian understanding of geography with immediate practical implications: you can’t treat prisons as if they exist apart from their surrounding counties when a deadly pandemic is on the loose. The same spatial problem, also with eminently practical implications, is present in the sanctuary city context: if you operate in the same space as someone you don’t cooperate with, at some point you will collide, and you’ll have to figure out how to work out the collision (in Miéville’s book, by the way, these situations require a third police force, called “breach.”)

Second, and related, people tend to forget the many points of contact between local and federal justice that cannot be avoided even with the most assiduous sanctuary city laws, and even if everyone on the local level religiously complies with them (some don’t.) Anytime someone is arrested, their fingerprints find their way into a federal database, where they are matched with the people who are here lawfully. If they are not, it’s not particularly challenging to figure out where they are. If local jail authorities will not allow ICE into their facilities (which, under sanctuary state/city laws, is okay), ICE officers can ambush noncitizens who are heading to meet their probation officers and arrest them in the parking lot. ICE holds on people serving state sentences are lawful and, the minute the person exits the state facility, they will end up in the feds’ hands.

The only thing limiting federal intervention is the extent to which the feds are interested in intervening, which is a direct function of presidential policy. Removal rates in the Biden era were much lower than in the Trump era. During the Obama era, they were fairly high, but federal policy emphasized people convicted of serious crimes, whereas under Trump there was the deliberately inflammatory persecution of DACA recipients (some of the most upstanding Americans I know.) Who gets targeted, and how many get targeted, is purely the function of who is president and what they (or their constituents) care about. This is stuff that local authorities can do very little about, given the many interfaces these systems share.

Legal historian Karl Shoemaker, an acclaimed Medieval historian and fellow JSP alum, wrote a fantastic book about the legal and moral rationales behind sanctuary in the Middle Ages and its decline toward the Early Modern period. As Shoemaker explains in the book, during these times, in which ecclesiastic authorities governed the legal universe, claiming sanctuary truly meant escaping any legal responsibility for one’s crime. It is no coincidence that these rationales, which seeped into British common law from ecclesiastic law, faded in the Sixteenth century, with the advent of the idea of a secular state.

The key to understanding the feeble protection that sanctuary state laws offer our noncitizen friends and neighbors is to remember that, back in the Middle Ages (and certainly in Biblical times, whence the idea of sanctuary emerged,) there were no competing secular jurisdictions jockeying for position. What we call “sanctuary” is a far cry from the ironclad religious protection of yore, and would be better described as “noncooperation” with a legitimate sovereign occupying the same physical space. Can the feds find these two men who are accused of heinous crimes, see to their extradition, and hand them over to Brooke Jenkins? Sure. The question is whether they want to.

Rise of the Innocence Podcast

A short while ago, I chaired a panel to celebrate Paul Kaplan and Daniel LaChance’s new book Crimesploitation, which examines the lowbrow and middlebrow shows that shed glamorous and lurid light on crime: Cops, To Catch a Predator, etc. As I wrote in my review of the book, this read coincided with the week in which Adnan Syed, whose case was the subject of the first season of the podcast Serial, was set free by a Baltimore court after serving 23 years of incarceration. Here is a timeline of Syed’s case, which clearly indicates that the push to exonerate him came from the investigation in the podcast. Following in Serial’s footsteps was Undisclosed, a more pro-defense oriented podcast, which highlighted more discoveries.

In the book, Kaplan and LaChance examine a TV show that came out more or less when Serial emerged on the scene: Making a Murderer, which followed the murder case against Steven Avery and Brendan Dassey. It’s hard to argue against anything that creates a push for justice, and the authors don’t do that, but they do voice a critique against these wrongful conviction media products: by singling out specific cases of injustice, Kaplan and LaChance argue, they “fail[] to achieve the goal of critiquing the substance and structure of the criminal justice system and the bigger picture of hegemonic power relations in the United States that supports it” (94). In other words, “the protection of factually innocent people from the devastation of incarceration. . . becomes the most pressing criminal justice policy imperative, leaving untouched the question of why such a devastating punishment is so easily and readily meted out.” 

Kaplan and LaChance’s critique is well taken. The concern is that the focus on innocence will gloss over the fact that guilty people, as well as the innocent ones, don’t deserve neglect, sadism, cruelty, incompetence, and other cruel and, sadly, not unusual aspects of incarceration. I saw some of this play out in the conversation about vaccines, when jail vaccine advocates referred to the presumption of innocence to make a bid for vaccines that everyone, guilty and innocent alike, should have received immediately simply by virtue of being human and in a congregate setting with little control over their surroundings (and said so here.) But wrongful convictions are their own genre of awfulness, and while we need to support everyone who is incarcerated, I don’t think that infighting between innocence projects and prison advocacy projects helps the overall goal of making the world a better place.

Moreover, I think I am more optimistic than Kaplan and LaChance about these shows. For every person who might watch them and think, “wow, this is a unique instance of miscarriage of justice” there must be several who walk away from it thinking “if this atrocity happened in a case that was highlighted by a podcast, imagine how many more people are languishing in prison for crimes they did not commit who haven’t been featured in podcasts yet.” I said as much in my commentary on the podcast and on the radio.

Happily, the high-profile success of the vanguard shows of this genre led to a whole slew of podcasts seeking justice for the wrongfully convicted. Just recently, the podcast Proof led to the exoneration of two men in Georgia. At the same time, a seemingly contradictory trend is visible: podcasts that reopen cold cases and present theories of the case can help revive interest in unsolved murders and sometimes put terrifyingly violent people behind bars, as well as highlight atrocious behavior that might or might not be criminally defined in an effort to get justice for the victims. I say “seemingly” because, in both cases, the underlying assumption seems to be: podcasters can grease and speed up the wheels of justice faster and better than, say, Innocence Project lawyers.

Why is that? Consider what might be the first example of this genre: Paradise Lost and Paradise Lost 2, the documentaries about the murders of three children in West Memphis, Arkansas, and the convictions of Damien Echols, Jesse Miskelley and Jason Baldwin. The documentaries evoked enormous interest in the cases, and with the weight of celebrities and advocates, within a few years, everyone who knew something about these cases became convinced that the three were wrongly convicted. This newly fueled interest led to some movement in the case, ending in a new trial for Echols and, eventually, in an Alford plea for all defendants that set them free. Shortly after the plea, understanding the power of media, Echols and his wife Lorri Davis produced a documentary of their own in 2012, which featured better forensics and more novel analyses of the evidence.

What happened with the West Memphis Three case is instructive. The media can bring to the public voices form the scene. Unbound by technicalities and rules of evidence and of legal ethics, they can reinterview witnesses, examine forensic evidence with improved technologies, and have candid conversations with legal actors (some of whom might be retired at that point.) They can tell a story in emotionally artful ways that can persuade the public that an injustice has been done. I’m beginning to think that the Innocence Project might want to invest a considerable part of its budget in podcasting.

One argument against the use of podcasts in this way might be that they draw arbitrary, sporadic attention to certain cases at the expense of others. That is surely a problem. But isn’t sporadic, arbitrary attention that corrects injustice better than no attention at all?

The other challenge might be that the proliferation of these podcasts, with every fresh journalist or journalism aspirant hoping to be the one to stand on the courtroom stairs and celebrate, their impact will become marginally smaller, to the point that we will stop paying attention. I don’t think we’re at that inflection point yet. Moreover, the exoneration technologies (primarily the improvement and lower costs of DNA testing) are exposing more and more of these cases (there are also stark racial patterns) and I think we still need all the podcasts we can get.

Fighting Ridiculous Court Fees – One Piece at a Time

I’m attending the Annual Meeting of the American Society of Criminology and finding many of the talks illuminating and refreshing. It could be that the overall quality of work has improved, or that I make better choices about which panels to attend. Either way, this morning I’m following a series of panels about improving indigent representation, and have just come out of a conversation with the folks who run the campaign to End Justice Fees.

Those who followed the report on Ferguson are not strangers to the problem, but the public at large is likely ignorant of the immense (to the tune of billions of dollars!) toll of court fees and warrants. Even to me–who thought nothing would surprise me after learning about pay-to-stay and the resulting lawsuits–some of the details were shocking. The campaign’s website offers a wealth of information on the different things people get charged for: electronic monitoring, probation (yes, you pay for the pleasure of being monitored!), and–much to my horror–legal defense. Remember Gideon v. Wainwright, the landmark Warren Court case that required states to fund the defense of the indigent? Well, it turns out that, in 42 states, free representation means free for those who pay the fees (three figure amounts that many defendants cannot afford.)

Just like I found out in Cheap on Crime about pay-to-stay schemes, the absurdity of padding the pockets of municipalities and counties by charging the poor, rather than the rich, is in plain evidence. The fees are rarely recouped, resulting in crushing debt that kills the spirit of countless families and does not make up for the deficits. Figuring out the expense of keeping this ridiculous system in place is difficult (I wish someone took this on! I would, but my plate is full), but even though the numbers are elusive, I don’t think it’s outlandish to assume that pursuing lawsuits against hundreds of thousands of people for not paying what, for them, is a lot of money, but for the system is pennies, is not an economically efficient scheme. That this is costly beyond the obvious is evident from yet another horrible data point: in the Alabama Appleseed survey of people with court debt, they found that 38% of respondents had to resort to actually committing a crime in order to be able to pay the court fees (which are sometimes imposed for mere infractions or traffic violations.)

The good folks from End Justice Fees have come to the conclusion that advocacy works better than litigation for eliminating these fees. Here are some of the ground that they’ve made in California, per their website:

  • CA AB 199 makes the balance of any court-imposed costs assessed prior to July 1, 2022 unenforceable and uncollectible and vacates any portion of a judgment imposing civil assessments charged by traffic courts
  • Eliminated 17 additional criminal administrative fees and vacated $534 million in outstanding debt (2021).
  • California’s Families Over Fees Act repealed 23 criminal administrative fees and vacated $16 billion in outstanding debt (2020)
  • California ended the assessment of new juvenile fees (2017) and discharged outstanding fees (2020)
  • Ordinance eliminated local criminal administrative fees imposed in San Francisco (2018)
  • San Francisco made all jail phone calls free for incarcerated people and ended commissary markups (2020)
  • San Diego eliminated fees for phone calls and video visits (2022)

I’m also happy to report that, per their presentation, we are among the minority of states that do not charge people for their own representation which, under Gideon, indigent folks should pay for free.

The crux of the problem, with litigation, is that Bearden v. Georgia, the case often used to argue against punishing the poor for being poor, requires an investigation of means before incarceration–but the practice in many places is to arrest people for the purpose of assessing their means, which is technically a violation of Bearden but municipalities and courts claim is the only practical way to get ahold of the person.

This strikes me as the sort of initiative that decent people of all political stripes can and should get behind. It should yield the sort of coalitions I covered in Cheap on Crime and bring about more justice on an everyday level without slogans. Want to “dismantle” “abolish” “repeal” “defund” stuff? Here’s a good place to start on the ground and deliver immediate relief to people struggling with financial craziness.

Understanding Newsom as a Politician following Injection Site Bill Veto

The harm reduction community is deeply dispirited over Gov. Newsom’s rejection of the proposed safe drug injection/overdose prevention site in Oakland. Marisa Kendall reports for the Mercury News:

Senate Bill 57 would have allowed the two Bay Area cities to become among the first in the country to open facilities where users could bring drugs and consume them in a safe, supervised setting. The bill passed the state legislature this month. But after rejecting the bill, Newsom expressed worry that the law could actually make the drug crisis worse in those three cities.

“The unlimited number of safe injection sites that this bill would authorize — facilities which could exist well into the later part of this decade — could induce a world of unintended consequences,” he wrote in a veto message. “It is possible that these sites would help improve the safety and health of our urban areas, but if done without a strong plan, they could work against this purpose.”

Newsom added that he is instructing the secretary of Health and Human Services to convene a group of city and county officials to discuss overdose prevention strategies and how to implement a more limited pilot program.

This is a great disappointment, but not a big surprise. Kendall ties this position to Newsom’s possible presidential candidacy:

The move comes amid mounting speculation that Newsom might be eyeing a presidential run. And while it’s unclear whether those ambitions played into his decision, rejecting the bill likely will only help him on the national stage, where the majority of voters would likely balk at the idea of facilitating drug use, said Claremont McKenna College political science professor Jack Pitney.

“There’s a solid policy rationale for the veto,” Pitney said, “but politically, he’s dodged a potentially big problem.”

I have a few thoughts to offer about this observation. For many years–since my graduate school days in the early 2000s–I liked Newsom and believed in him, though I always knew that a politician is a politician, not the messiah (some of the Obama disappointees fell into that trap.) I admired his administration’s bold moves to the point that I was delighted to be considered for his penal code revision commission and sorely disappointed not to have been picked. In hindsight, though, not working for this administration was a blessing. I can’t imagine being able to help the people at San Quentin as much or in the ways that I did if I felt bound by loyalty to the Newsom administration.

Watching Newsom, Bonta, and others handle the executive and judicial aspects of the COVID-19 crisis was sobering. In Chapter 7 of our forthcoming book FESTER (the manuscript is due with UC Press this week!) we make the following observations about Newsom:

[T]he Governor’s [paltry COVID-19 release] program was overly sensitive to public backlash, and featured the classic hallmarks of the age-violence-risk paradox. Bifurcation—applying early releases and good time credits only to nonserious, nonviolent, nonsexual offenses—was in evidence in every category on the plan, despite the lack of correlation between the crime of commitment and risk to public safety. At first blush, such kowtowing to public outcry would seem uncharacteristic of Newsom, whose political path, from his early days as Mayor of San Francisco, featured bold, high-profile moves to advance progressive values and objectives, which he presented as doing the right thing no matter the backlash. His move to legalize same-sex marriage in California—the subject of ferocious litigation that culminated in a Supreme Court victory—was perceived by some, at the time, to be political suicide. Similarly, his moratorium on the death penalty was criticized for not reflecting the wish of a small but consistent majority of Californians. In both of these cases, Newsom correctly read the political winds, and his predictions proved true; his self-styled image of an idealistic pioneer was boosted by the fact that his executive decisions preceded wider societal shifts. But Newsom’s reluctance to release people convicted of violent crime reflected age-old wisdom in California politics that, even in the bluest of counties, it is not a wise political move to flout entrenched fears of violent crime. Reflective of the justifiability of this concern was a disparaging story in the Los Angeles Times about Newsom’s plan titled, “California is releasing some murderers due to COVID-19. Some say it should free more.” After a barrage of phone calls from Coalition members, the newspaper changed the headline, but the content, which rehearsed tired tough-on-crime tropes from the Reagan administration days, remained unaltered: the writers chose to interview crime victims who, while entitled to their personal opinions, were neither the statewide curators of victims’ perspectives nor qualified to offer broad insights on emergency healthcare policies. They also mentioned, without a shred of irony, Willie Horton.

. . .

Three examples of such aging, low-risk people drive home the extent to which age-violence-risk paradox was part of the Newsom administration’s calculus. Twice during the pandemic, the parole board recommended parole for Leslie Van Houten, born in 1950 and housed at California Institute for Women (CIW.) Van Houten had been consistently recommended for parole since 2017, but governors–first Brown, now Newsom–keep reversing the recommendation for what appear, in light of her exemplary prison record, pure political spite. Van Houten has maintained a clean disciplinary record, participated in a variety of laudable programs, and incessantly excavated her psyche to show “insight” to the Board. She participated in the Manson murders when she was 19 years old, manipulated and sexually exploited in a setting that, with today’s #MeToo sensibilities, might have shed a completely different light on her involvement.

As one of us has explained elsewhere, the Manson family cases shine a light on the question of redeemability, featuring people who have clearly done their utmost to undergo, live, and exude transformation but whose notoriety stands in their way. But van Houten’s two last hearings featured an additional consideration: the parole hopeful was over 70 years old and CIW, where she was housed, was experiencing an outbreak just as she was denied parole.

Another notorious member of the “Class of ‘72’”—the 107 people condemned to death whose sentences were commuted to life with parole after People v. Anderson—was Sirhan Sirhan, who had assassinated Robert Kennedy. At the time of his COVID parole hearing, Sirhan was 77 years old. The Chronicle’s Bob Egelko forecasted his parole bid:

“Anybody that has ever walked into my office, you have to walk by photographs of Bobby Kennedy’s funeral procession, those famous train photos,” the governor said, according to a transcript provided by his office. “The first photograph, the only photograph you will see in my office is a photo of my father and Bobby Kennedy just days before Bobby Kennedy was murdered.”

At the time of Sirhan’s parole bid, Newsom was facing a recall election in which he had everything to lose, and absolutely nothing to gain, from releasing Sirhan. As Egelko explained, Newsom’s leading opponents in the recall, all of whom were well to his right politically, would seem equally unlikely to approve Sirhan’s parole. Moreover, any decision to release Kennedy’s murderer would surely become a flash point in the 2022 governor’s election.

“I’d be shocked if Newsom didn’t reverse” the parole board’s decision, said Robert Weisberg, a Stanford criminal law professor. Although the governor would have to explain why he believed Sirhan still posed a threat of violence, Weisberg said, he would most likely be “responding to a public view that this guy’s crime was so heinous that he shouldn’t be paroled.”

Predictably, Newsom vetoed Sirhan’s parole and, perhaps hoping to win political points while facing a recall election, took the trouble to pen an op-ed about it in the Los Angeles Times:

“Kennedy’s assassination not only changed the course of this nation and robbed the world of a promising young leader, it also left his 11 children without a father and his wife without a husband. Kennedy’s family bears his loss every day. Millions of Americans lost a unifier in a time of national turmoil and grief, just nine weeks after the assassination of the Rev. Martin Luther King, Jr., and four-and-a-half years after the murder of Kennedy’s brother, President John F. Kennedy.

“Yet, after decades in prison, Sirhan still lacks the insight that would prevent him from making the kind of dangerous and destructive decisions he made in the past. The most glaring proof of Sirhan’s deficient insight is his shifting narrative about his assassination of Kennedy, and his current refusal to accept responsibility for it.”

The language in Newsom’s op-ed echoes the concept of “insight”, which parole researchers broadly agree is a deliberately opaque, vague term used to justify denials based on the now-prohibited consideration of the heinousness of the original crime. Kathryne Young explains that “insight” is. Kristen Bell identifies the same obfuscation with regard to juvenile parole hearings. And Rita Shah, in a review of my previous book Yesterday’s Monsters, pithily explains that “Like rehabilitation, insight seems be a bullshit term as determining whether one has gained insight or is on the road to rehabilitation appears to be the criminal legal system’s equivalent of ‘I’ll know when I see it.’”

But the absurdities in Van Houten and Sirhan’s cases pales in comparison with the continued incarceration of Gerald Albert Oates who, at the age of 94, is the oldest living person incarcerated at CDCR. After a parole denial in 2018 because, unbelievably, Oates is still categorized as “high risk” by CDCR,[8] he remained incarcerated throughout the COVID-19 crisis, apparently surviving the Newsom Administration’s project to identify priorities for release. Oates’ case highlights the extent to which the calcification of fear and loathing of so-called “violent offenders”, wrought by the age-violence-risk paradox, stood in the way of making parole decisions that made sense, practically and medically.

There you have it: a politician I used to respect and admire. Over the course of the last few years, I have come to realize that his true gift is his keen sense of smell for where public opinion will be two weeks from now, appearing as a maverick when pushing initiatives that he knows will shortly enjoy wide public support. Because he knows that people addicted to drugs in the streets and people languishing in overcrowded prisons (1) don’t vote and (2) don’t matter to voters, he can afford to continue running California as if their lives don’t matter at all.

Last comment: Whatever Newsom is doing is playing out marvelously in California, where a recent poll shows him a reelection shoe-in (long-time readers will recognize his opponent, Brian Dahle, an old-skool law and order guy who opposed the recent prison closure in Susanville.) But it might not earn him as many points as he hopes in less-blue pastures on the national stage; he’s not getting any love for this on Fox News, where they can see right through it (even a broken clock shows the right time twice a day.)

Trump Search Warrant Unsealed. Where’s the Affidavit?

Well, it’s happened: A search of Trump’s Mar-a-Lago residence yielded numerous items, all of which are listed in the search warrant, which you can read here in all its glory.

If you still can’t make heads nor tails of this, it’s because all we have seen so far is the warrant, which lists the place to be searched and items to be sealed, and not the affidavit, in which law enforcement officers detail their probable cause for the judge. As explained here, for reasons involving the ongoing investigation, it is unlikely that we’ll actually see the affidavit before formal charges are brought, so speculation abounds. Nevertheless, there are some things we can learn from the warrant. Here’s the description of the items sought:

a. Any physical documents with classification markings, along with any containers/boxes (including any other contents) in which such documents are located, as well as any other containers/boxes that are collectively stored or found together with the aforementioned documents and containers/boxes;

b. Information, including communications in any form, regarding the retrieval, storage, or transmission of national defense information or classified material;

c. Any government and/or Presidential Records created between January 20, 2017, and January 20, 2021; or

d. Any evidence of the knowing alteration, destruction, or concealment of any government and/or Presidential Records, or of any documents with classification markings.

Contrast this with the three crimes listed in the warrant and you get a fuller picture of the suspicions against Trump. Here’s an excerpt from this New York Times story, which describes these federal laws:

The first law, Section 793 of Title 18 of the U.S. Code, is better known as the Espionage Act. It criminalizes the unauthorized retention or disclosure of information related to national defense that could be used to harm the United States or aid a foreign adversary. Each offense can carry a penalty of up to 10 years in prison.

Despite its name, the Espionage Act is not limited to instances of spying for a foreign power and is written in a way that broadly covers mishandling of security-related secrets. The government has frequently used it to prosecute officials who have leaked information to the news media for the purpose of whistle-blowing or otherwise informing the public, for example.

Importantly, Congress enacted the Espionage Act in 1917, during World War I — decades before President Harry S. Truman issued an executive order that created the modern classification system, under which documents can be deemed confidential, secret or top secret. The president is the ultimate arbiter of whether any of those classifications applies — or should be lifted.

As a result, while these classifications — especially top secret ones — can be good indicators that a document probably meets the standard of being “national defense information” covered by the Espionage Act, charges under that law can be brought against someone who hoarded national security secrets even if they were not deemed classified.

The list of items that the warrant authorized the F.B.I. to seize captured this nuance. It said agents could take “documents with classification markings,” along with anything else in the boxes or containers where they found such files, but also any information “regarding the retrieval, storage or transmission of national defense information or classified material.”

The government has not said what specific documents investigators thought Mr. Trump had kept at Mar-a-Lago, nor what they found there. The inventory of items was vague, including multiple mentions of “miscellaneous top-secret documents,” for example.

But the invocation of “the retrieval, storage or transmission” of secret information in the warrant offered a potential clue to at least one category of the files the F.B.I. may have been looking for. One possible interpretation of that phrase is that it hinted at encrypted communications, hacking or surveillance abilities.

The other two laws invoked in the warrant do not have to do with national security.

The second, Section 1519, is an obstruction law that is part of the Sarbanes-Oxley Act, a broad set of reforms enacted by Congress in 2002 after financial scandals at firms like Enron, Arthur Andersen and WorldCom.

Section 1519 sets a penalty of up to 20 years in prison per offense for the act of destroying or concealing documents or records “with the intent to impede, obstruct or influence the investigation or proper administration of any matter” within the jurisdiction of federal departments or agencies.

The warrant does not specify whether that obstruction effort is a reference to the government’s attempts to retrieve all the publicly owned documents that should be given to the National Archives and Records Administration, or something separate.

The third law that investigators cite in the warrant, Section 2071, criminalizes the theft or destruction of government documents. It makes it a crime, punishable in part by up to three years in prison per offense, for anyone with custody of any record or document from federal court or public office to willfully and unlawfully conceal, remove, mutilate, falsify or destroy it.

Given that the ongoing investigation is still shrouded in mystery, assuming that there isn’t some glaring horror, this is beginning to look like Al Capone’s prosecution for tax evasion.