The pandemic rages on with more victims than ever. The President of the United States cares only about convincing as many of his followers as possible that the recent election was stolen, while knowing it was not. OMG, what crazy, stupid, lawless thing will the President do next? If we find ourselves anxiously fretting over this, the Donald has us right where he wants us.
OK, so how is one to react to the latest assault on our country’s democracy? Matter-of-factly. The time has come to stop rewarding Donald Trump and his followers with howls of outrage, however deserved. With the possible exception of the inherent pleasure they derive from wrongdoing, nothing pleases Trump or a true Trumpster more than the apoplexy they elicit with bad behavior.
So, it’s not “You make me so mad I can’t sleep!” Rather, it’s time to shrug and say, “We expected nothing but the worst possible behavior from you, Mr. President. Someone willing to obstruct justice as you have is certainly going to obstruct a transition. Hire your movers and the best criminal defense team you can find. Pitch a reality TV show. Please excuse us, though; we have a lot to do, repairing the damage you’ve done to this country.”
We Saw This Coming, Right?
We were expecting, maybe, bowing to the will of the people? A gracious acceptance of obvious reality? Cooperative transfer of power in the nation’s best interests? An end, or even slowdown, to the barrage of lies? Doing the right thing?
We thought that after the election Donald Trump would urge all Americans to take reasonable measures to protect themselves and each other? Tamp down the politicization of the pandemic? Do something that actually would help the economy?
This Republican “leadership” (excuse the expression) was going to rein in Donald Trump? They were going to say harming the country with lies demeaning its democracy was going too far? They’re going to get interested in saving lives after a quarter-million lost?
C’mon. Seriously?
This is not to suggest that dishonesty does not matter; quite the contrary. Honest, experienced election officials – Republican, Democratic, and Independent – are receiving death threats for doing their jobs and telling the truth. Exhausted health workers report patients using their dying breaths to deny the virus killing them.
The most famous current report comes from South Dakota, where nearly a half million bikers sneered at science with a super-spreader event in Sturgis. There is no doubt why the Upper Midwest became one of the nation’s hotspots this fall. Unmasked and undistanced partiers went home to every state, and, combined with smaller but similarly foolish gatherings everywhere, have made the whole country a hot spot again. Dishonesty matters, alright, especially when believed.
A Few Undeniable Facts – Election
By all accounts, regardless of political persuasion, 2020 was the cleanest election anyone can remember. That stands to reason, since everyone knew it would be the most scrutinized election ever. Elections generally are clean; our system works. But the chance of getting away with election fraud in this one was closer to zero than ever.
Joe Biden won. His 306 electoral college votes were the same number garnered by Trump in 2016. For four years we’ve been hearing from the Donald that this was a “landslide”, despite losing the popular vote by around 2.9 million votes. In contrast, Biden’s 306 electoral votes in 2020 saw a corresponding popular vote victory of over 5.5 million. It’s a clear, solid win.
Any assertion to the contrary is not only incorrect, but a knowing lie. Everyone with access to the facts knows this election was clean. To suggest it was stolen is a slander against our country, and all those who work hard and well on its elections.
Overturning any election in court requires compelling proof. In cases filed against this election, forget about proving anything – what’s being alleged is incoherent. If any specific fact is asserted, it turns out not only false but often the opposite of the truth. The suits filed aren’t just losers; they are frivolous.
Yes, He Knows
By the way, of course Trump knows he lost. He knew he was cooked when Biden won the South Carolina primary and then did so well on Super Tuesday. Why else would he be furious with Elizabeth Warren for not pulling out of the race and backing Sanders? Trump knew he’d have a chance against Bernie. Why else did he pursue that idiocy in the Ukraine before Biden was even the nominee?
If he knows he lost, why this behavior now? The easy answer is he’s just being the Donald. It’s no mere sore-loser petulance, however. The sad truth seems to include: (1) This keeps him the lead story, even as a lame duck, as long as possible. (2) Whatever can be done to hurt Biden, he’ll do. (3) He enjoys harming people in general, and our country and its core values in particular. (4) There are a few more items on the to-do list Vladimir gave him. (5) He is helping himself to one last fleecing of his adoring followers. As has been reported elsewhere, the small print in the current fundraising indicates that little or no money raised actually funds the baseless lawsuits.
A Few Undeniable Facts – Pandemic
COVID-19 is not just another flu. It is more contagious, more stealthy, and much more deadly. Its presence in a person days before symptoms manifest means that people unknowingly spread the virus everywhere, unless they take measures.
Transmission of COVID-19 is by personal contact, specifically most often by respiratory droplets. How long they linger, and under what circumstances, are still not fully understood. It’s easy to understand, though, that people breathing on each other spreads the coronavirus. Keeping a distance of about six feet, and knocking down droplets with masks, obviously help. So do circulating clean air, cleaning surfaces, and avoiding crowds.
At any time in our history other than the Trump Era, denying any of the above would have been regarded universally as sheer lunacy. Yet, one mask seen at a farm stand said “This Is What Tyranny Looks Like!” No. This is what common sense looks like.
The message from the White House has been “Ignore those fins of the great white shark. Everyone in the ocean!” (Indeed, not to beat the point to death, but the presidential response to COVID since March has been a real-world, large-scale rendition of the film Jaws, complete with mayor telling citizens to ignore the experts for fear of slowing an economy.)
The Need for Consequences
The expression is “No good deed goes unpunished.” The only thing worse than good deeds being punished, though, is bad deeds going unpunished. The wrongdoing recently, like that of the last four years, has been so voluminous and so serious as to require consequences. Otherwise, there will be no credible deterrent to future crimes and unethical behavior in high places. Don’t go after little stuff, but don’t ignore really bad stuff, either.
This is not for Joe Biden’s attention, by the way. He has even more important things to do. At every level, state and federal, we have good people who have made it their lives’ work to respond to bad behavior. Unfettered, these experts can be trusted to just do their jobs in various realms.
The Civil Case Realm
It is entirely appropriate in most jurisdictions to request both attorneys’ fees and sanctions in response to frivolous litigation. Without a shred of evidence, the suits being filed by or on behalf of Donald Trump are the epitome of frivolous. Every pleading in response to this nonsense should contain requests for sanctions and attorneys’ fees. It’s bad enough that gullible Trump supporters send their money in for this “cause”, only to have all or most of it diverted. Why should taxpayers have to fund the defense?
It is worth remembering that certain doctrines of law, like fraud and the RICO (Racketeer Influenced and Corrupt Organizations) Act, operate in both the civil and criminal arenas.
One other thought: How about a writ of mandamus against public servants who refuse to do their job in critical areas? This tends to come up when dedicated professionals are fired in favor of political hacks and donors. There are very good reasons for the Hatch Act and for political appointees to be greatly outnumbered in the public workforce.
The Ethical Realm
It is unethical for any lawyer to file pleadings lacking any merit. (RPC 3.1: A lawyer shall not bring or defend a proceeding, nor assert or controvert an issue therein unless the lawyer knows or reasonably believes that there is a basis in law and fact for doing so that is not frivolous.)
It is separately and especially unethical to do so knowingly. (RPC 3.3: A lawyer shall not knowingly: (1) make a false statement of material fact or law to a tribunal; (2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting an illegal, criminal or fraudulent act by the client… (4) offer evidence that the lawyer knows to be false… or (5) fail to disclose to the tribunal a material fact knowing that the omission is reasonably certain to mislead the tribunal…)
Attorney Ethics prosecutors, often called Bar Counsel, should prepare themselves for a wave of cases. The Rules of Professional Conduct are not limited to those in private practice, by the way; they apply to all licensed lawyers.
Lawyers aren’t the only ones with ethics standards. Other professions, like medicine, have them. All three branches of the federal government have offices to ensure ethical conduct. While Trump and congressional Republicans each consider whether there is any act whatever Trump could do that would draw condemnation, here’s a link to the Office of Congressional Ethics: https://oce.house.gov/learn/citizen-s-guide
The Criminal Realm
The enormity in volume, scope, and severity of the crimes committed by and on behalf of Donald Trump boggles the mind. And that’s just what we already know. History will teach that our President Law ‘n’ Order broke more laws than any other ever, perhaps more than all others combined.
Crimes (like perjury, fraud, treason) each have elements that must be proven. They either happened or they didn’t. They either can or cannot be proven beyond a reasonable doubt.
The topic of pardons would justify its own post. Suffice it to say (as I have been for a couple years) that on his way out, Trump will
- Pardon a long list of bad actors who committed crimes at his behest or for his benefit and
- Either resign and have Pence pardon him, or pardon himself – or both
Donald Trump may find one last constitutional crisis irresistible, so brace yourself for that self-pardon thing. I’m not aware of anything definitive on whether a president can do it, but there’s this from a memorandum opinion written in the time of Nixon out of Justice’s Office of Legal Counsel:
“Pursuant to Article II, Section 2 of the Constitution, the ‘Power to grant…Pardons for Offenses against the United States…’ is vested in the President. This raises the question whether the President can pardon himself. Under the fundamental rule that no one may be a judge in his own case, it would seem that the question should be answered in the negative.”
As to Vice President Pence: he is not in Jerry Ford’s position; Trump is not in Richard Nixon’s position; and someday maybe we’ll count the number of Trumpian scandals that dwarf Watergate. Depending on how far Trump is willing to go with his treachery before January 20, the 25th Amendment, Section 4, might be the more to the point than Article II.
Finally, I’ve seen a suggestion that Biden should pardon Trump. I don’t think he should, and I don’t think he will.
A Quick Story
As an undergrad a long time ago at Rutgers, I bought an advance general admission ticket to a concert. I was excited because it was my first chance to see Archie Shepp, then as now one of my favorite tenor saxophonists. Excited enough was I to not pay attention as I approached the outside doors. Someone stuck out his hand and I handed him my ticket. While peering inside the lobby, I didn’t notice at first that the stub wasn’t given back to me. I looked back and the guy was gone, with my ticket.
At first, I was puzzled. Looking back inside the lobby, I realized they were actually taking tickets at the doors from the lobby into the venue. The ticket was gone, I couldn’t prove anything or identify the guy, and I couldn’t afford another ticket. I was almost as angry at myself as the thief. How could I have been so stupid? I hated the feeling of being “had”. (Indeed, until now, I haven’t told this story to very many people.)
It’s happened to most of us, one way or another, and we all hate the feeling of having been had. For at least two reasons, we don’t want to believe that’s what has happened. First, someone did something wrong to us. Second, we feel really foolish.
Millions have been had by Donald Trump. Some will never realize it; some will realize it, but never admit it. Some have realized it, or are beginning to realize it, already; for others it will take a while. It’s never easy, and it hurts. He’s quite the con man.
All cons are not the same, but it does feel better to learn from it and let it go. I’ve enjoyed many great events at Rutgers over the years. I’ve also seen Archie Shepp play three times now, worn out some of his albums, and loved every second of it.
So…
True and False.
Good and Bad.
Right and Wrong.
My parents taught me all about these concepts – which was which, and why the distinctions between them always matter. I’m eternally grateful. It’s time to fix the mess we’re in, preferably together. We’ve never needed these, our first principles and the building blocks of society, more.
To be effective, it’s better to skip the snark and the vitriol, but we must insist on fairness, and answer every lie with the truth. Investigate all wrongdoing, wherever the truth takes us. Prosecute proven crimes. Discipline breaches of Ethics. Do all this not out of spite or revenge, but simple justice. We can’t afford not to do it.
Matter-of-factly.
Ken Bossong
© 2020 Kenneth J. Bossong