Monthly Archives: June 2021

Courting Disaster

Random Thoughts

(In reference to a report the FBI has advised Trump Org COO Matthew Calamari Sr. and his son to “lawyer up,”) you know the world is upside-down when the Calamari are ordering lawyers for the whole table.

~Stephen Colbert/June 23, 2021

I know, making fun of lawyers is a very low BAR to overcome. Until this week, Steven Wright held the title for excellence in Comic/Attorney Privilege with his one-liner, “It’s 99 percent of lawyers who give the rest a bad name.”  But seriously folks, sometimes it is that one percent that can make all the difference in the world.  Such was the case Thursday, when a New York state appellate court, in response to a request filed by the Attorney Grievance Committee for the First Judicial Department of New York to suspend Rudy Giuliani’s law license, ruled the former New York City mayor and Trump advocate had violated multiple standards of conduct, making false statements in regard to voting fraud during the 2020 presidential election.

In particular, the court’s finding focused on Rule 3.1 of 22 NYCRR 1200, “Rules of Professional Conduct.”  This section addresses “Non-Meritorious Claims and Contentions.”  The following language would seem to nail Giuliani for his conduct related to claims of voting fraud following the 2020 election.

(a) A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous.

(b) A lawyer’s conduct is “frivolous” for purposes of this Rule if:

(3) the lawyer knowingly asserts material factual statements that are false.

A common defense in these kinds of cases is for the defendant to claim, “I did not know the information was false,” something that is very hard to prove without corroborating tangible evidence such as handwritten notes, emails, recordings or confessions.  There is circumstantial evidence Giuliani has, in fact, confessed.  Despite making outrageous claims in front of the Four Seasons Landscaping Company or before an assembly of Republican state senators in Michigan, he presented an entirely different story when it came to representing his client before a legal tribunal.

Boockvar asks judge to dismiss Pa. suit based on Trump's 'conjectural theories' | Pittsburgh Post-GazetteOne example is Donald J. Trump for President v. Boockvar, in which Giuliani charged former Pennsylvania Secretary of State Kathy Boockvar with state law violations in the administration of voting in six counties.  During a November 17, 2020 pre-trial hearing, U.S. District Judge Matthew Brann asked Giuliani, “So you are alleging fraud?”  To which, Giuliani answered, “Yes, your honor.”  However, immediately following the hearing, Giuliani informed Brann the complaint had been amended prior to the hearing and did not allege fraud.  Braun dismissed the case on November 21, stating, “Respondent repeatedly represented to the court that his client, the plaintiff, was pursuing a fraud claim, when indisputably it was not.”

Why did Giuliani amend the filing?  Because by choosing to contrast his statements before the bar with those he was willing to make in parking lots or in Washington, D.C. on January 6th, he avoided possible sanctions for making a frivolous case based on false evidence before an actual court.  And there lies the rub.  I would not be surprised if Giuliani’s law license is reinstated following a full hearing.  Why?  Because his counsel (for his sake, one hopes he does not represent himself) will argue the New York code only governs conduct in a courtroom.  Giuliani can argue his statements outside the halls of justice represent his first amendment right to express his opinion, and therefore, did not violate the code of conduct.

No matter what any reasonable person thinks, he might be technically correct.  The solution?  The American Bar Association (ABA) claims, “Lawyers are officers of the court thus subjecting themselves to the court’s supervision and to duties geared to protect the vigor, fairness, and integrity of processes of litigation.”  If that is the case, should a lawyer’s professional conduct extend beyond the confines of a courtroom?  Imagine a doctor publicly touting a dangerous drug he or she would not administer to one’s own patients.  Or prescribing drugs for a non-patient from his home instead of at his office.  Would such action be any less offensive?

Solving the Giuliani problem is actually quite easy.  The ABA and state affiliates simply need to amend the code of professional conduct to clarify the phrase “if there is a basis in law or fact,” by extending it to all public conduct.  In other words, violations include any instance in which an attorney makes a public statement of fact which he or she is unwilling to repeat before a judge or any other legal proceeding.

Doctors have the Hippocratic Oath, “First, do no harm.”  Under current rules of conduct such as those in 22 NYSRR 1200, attorneys can operate under the Hypocritical Oath, “Do no harm only when you are in court.”

For what it’s worth.
Dr. ESP

 

Manchin and Gomorrah

Politics

 

Watching West Virginia senator Joe Manchin’s efforts to build bipartisan support for a voting rights bill, I had a deja vu moment.  This all seemed much too familiar.  But when and where had I been exposed to a similar situation?

Memory recall in instances like this often depends on finding a unique connection between the past and the present.  Parsing the leadup to this afternoon’s procedural vote to limit debate paving the way for consideration of the “For the People Voting Rights Act,” I identified several possibilities.  Was the nexus related to the topic itself?  Was this debate akin to the 1965 deliberations over the previous voting rights act which Southern Democrats tried to derail using the filibuster?  Or was it just one more reminder of the multiple times a GOP senate minority used the filibuster to block popular legislation?  Or was it something more subtle?

To find the answer, I decided to examine the situation as follows.  From Joe Manchin’s perspective, what was his ultimate goal?  What would he consider success?  And there was the answer.  Bipartisan success required his identifying 10 Republican senators who would vote for closure, averting a bill-killing filibuster.  Exactly, 10 righteous men and women who would put democracy above party.  Joe Manchin was akin to a modern day Abraham who pleaded with God not to destroy Sodom and Gomorrah if only he could find 10 individuals worthy of redemption.  Except, in this case, he was pleading with GOP not to blow up the Senate.

The exact deja vu moment was Genesis 18:22-33, “Abraham Pleads for Sodom.”  As did Abraham, Manchin began his negotiations thinking that he might be able to build a consensus with all 50 Republicans joining the Democrats.  But then he wondered, “What if such a high goal is unattainable?”  That is when he began to bargain.  Paraphrasing Abraham: “What if the number is five less than fifty?  Will you destroy this institution for lack of five votes?”

And his conscience answered, “If you find forty-five, there is no need to destroy it.”

Manchin to himself: “What if only forty are found there.”

His conscience: “For the sake of forty, our democracy will not be destroyed.

This back and forth continued, until Manchin reached what he believed was the minimum number of righteous senators to save democracy.  “I know I am asking much, but let me speak just once more.  What if only ten can be found there?”  Rabbinic commentaries of this account question why Abraham stopped at 10.  They asked, “If God would not destroy Sodom for the sake of 10 righteous men, would he not do the same to save just one?”

Not that it would have made a difference this afternoon in the Senate.  The vote was 50-50.  There was not a single righteous GOP senator who would ask, “How dare we call this chamber the world’s most deliberative body if we are not willing even to debate voting rights much less enact legislation?”  As did Abraham, after making his case, maybe it is time for the Senate to “leave and return home. (Genesis 18:33)”  Because they do not need a god to destroy democracy.  This afternoon, they proved they are more than capable of doing it on their own.

Democracy can still be saved.  Not by blowing up the Senate.  By ending the filibuster in its current form.  And again, Manchin is the key.  All it takes is a change in perspective.  Instead of looking across the aisle for 10 righteous men and women, he must recognize there are 51 within his own ranks.  He can still be the lead negotiator.  He can vote to waive a cloture vote, avoiding a filibuster, if his colleagues are willing to consider his compromise proposal which protects early voting, makes election day a national holiday in exchange for an ID requirement that can be met in a number of ways.  Urging fellow Democrats not to make “the perfect the enemy of the good,” both Stacy Abrams and Barack Obama have called the Manchin proposal a good start.

POSTSCRIPT

In truth, there is nothing “magic” about the number 60.  Several times since the filibuster was introduced in 1837, the rules governing cloture have been revised.  Most notably from two-thirds of those present to three-fifths of all members (thus the current 60).  And Senate actions subject to the filibuster have also been modified, most recently a GOP rule change in 2017 that waived the filibuster for confirmation of federal judges.

If the ultimate goal of the filibuster is to protect the rights of the minority, let me suggest a solution.  What if a bill’s adoption was viewed as bi-partisan if the majority required for passage contained at least one Republican and one Democratic vote.  For example, the recent bill establishing a January 6th commission would have passed with 55 votes since it included five Republicans.  In the current Congress, a Republican proposal would likewise pass if Mitch McConnell, et. al., could recruit one Democrat to support it.  Otherwise, a filibuster could be called only on a straight party vote regardless of the number of seats held by each party.

In biblical terms, passage of a bill would then be dependent on finding “one righteous member” of the opposite party.  I know.  That is a LOT to ask for.

For what it’s worth.
Dr. ESP

 

BAD Dogma!

Religion

Contrary to common newspaper usage, I am not the Catholic candidate for president. I am the Democratic Party’s candidate for president, who happens also to be a Catholic. I do not speak for my church on public matters, and the church does not speak for me.

~John F. Kennedy/September 12, 1960

Question #1 du jour:  Have you ever wondered why American voters in 1960 were so concerned about a Catholic becoming president?

On Friday, the U.S. Conference of Catholic Bishops voted (168-55) to clarify whether the church should prohibit politicians who support abortion rights from participating in the holy sacrament of communion.  Although not mentioned by name, the vote was seen as directed at President Biden who, throughout his career, has had to reconcile personal views with political stances on issues which pit him against Catholic doctrine.  You could not follow this story without coming upon a variation of the following response to the bishops’ action.  “The church has no right to deny Biden communion until it denies communion to pedophile priests.”  True, but not the core issue.

During the 2012 vice-presidential debate, Biden explained his position as follows.

I accept my church’s position on abortion as what we call de fide doctrine. Life begins at conception. That’s the church’s judgment. I accept it in my personal life. But I refuse to impose it on equally devout Christians and Muslims and Jews. I just refuse to impose that on others.”

The American bishops, in their communique, are saying just the opposite.  Perhaps they overslept and missed the seminary class on the synoptic gospels.  You know, the one where Jesus says, “Render under Caesar the things that are Caesar’s, and unto God the things that are God’s.” (Matthew 22.21)  Ironically, a majority of Catholics agree with Jesus.  According to a 2020 survey by Pew Research, 56 percent of declared Catholics said abortion should be legal in all or most cases.  Instead of punishing those who share this opinion, the bishops should honor Biden’s example of making personal choices consistent with Catholic doctrine regardless of national policy.

Vice President Mike Pence calls off Florida appearances | BlogsEqually ironic, many protestants, especially white evangelicals, who feared papal influence over American politics seem to turn the other cheek when it comes to their own denominations.  Consider the most recent example.  On the same day the bishops raised the communion question, former vice-president Mike Pence was called a traitor and heckled during a speech at the Faith & Freedom Coalition Conference in Orlando.  In response, Pence declared, “I’m a Christian, a conservative and a Republican in that order.”  For someone who wants to be the next president, you would think “being an American” should appear somewhere on that list.  Imagine the outcry if JFK had opened his 1960 campaign speech before the Greater Houston Ministerial Association, “I am a Catholic, a liberal and a Democrat in that order.”

Question #2 du jour:  Why are “former Catholics” the fastest growing religious denomination in the United States?

One day earlier, the U.S. Supreme Court demonstrated how a unanimous decision in one’s favor can actually be a major loss for the same party.  The plaintiff in the case was a Philadelphia-based Roman Catholic adoption agency with which the city refused to contract because Catholic Social Services (CSS) refused to work with same-sex foster parents.  The opinion, written by Chief Justice John Roberts, focused on the establishment clause in the First Amendment to the Constitution, pointing out the local government’s actions violated CSS’ free exercise of religion.  The Court does not rule 9-0 unless the constitutional principle on which the case is decided is on solid ground.

How could this then be viewed as a loss for the Church?  Because it again exposed what may be the single most significant fallacy in the Catholic modus operandi, the dogma of papal infallibility.   I do not mean to offend Catholics, but consider the following description of papal infallibility in the Encyclopedia Britannica.

Papal infallibility, in Roman Catholic theology, the doctrine that the pope, acting as supreme teacher and under certain conditions, cannot err when he teaches in matters of faith or morals.

Sorry, but the term “supreme teacher” conjures comparisons with autocrats like Kim Jung-Un.  Or reminds me that our own country was governed for four years by someone who claimed he never made a mistake.

The recent Court decision is just the latest example of the conflict between allegiance to an individual and the teachings which are the core tenets of Catholicism.  On one hand, the Church preaches that the gospel is the divine word of God delivered to the people by his only son Jesus Christ.  Yet, nowhere do the gospels refer to discrimination against same sex couples.  In fact, one could argue it says just the opposite.  “For ye are all the children of God by faith in Christ Jesus.” (Galatians 3:26/King James Bible)

So where did this ban against same-sex foster parents originate?  Catholic attitudes toward homosexuality are contained in the Catechism of the Catholic Church.  A tome with such a formal title must date back many centuries if not millennia.  Hardly.  It was commissioned by John Paul II in 1986, drafted by 12 bishops and cardinals and personally approved by the Pope on June 25, 1992.  I hate to keep making analogies, but how is this different from the Florida Board of Education proposing a Catechism of American History in response to the 1619 Project which will eventually be blessed by Pope DeSantis?

What does this have to do with an 18 percent decline in Catholic affiliation over the past two decades?  Rather than looking to the Church for moral guidance, more and more Americans are relying on their daily experience.  And attitudes toward the LGBT+ community is the clearest example.  The Church’s attitude toward homosexuality is contained in the 1992 Catechism.

Although the particular inclination of the homosexual person is not a sin, it is a more or less strong tendency ordered toward an intrinsic moral evil; and thus the inclination itself must be seen as an objective disorder.

In contrast, a June 8, 2021 Gallup report documents an increase in support for same-sex marriage from 27 percent in 1997 to 70 percent today.  Support among young adults, age 18-34, is 84 percent.  To paraphrase FDR, “The only thing you have to fear is what the Church teaches you to fear.”  Instead of familiarity breeding contempt, in this case, it promotes acceptance.

A CAVEAT

The Catholic Church is not unlike many corporations who believe their own propaganda and are mired in old ways of doing business.  In response, you often hear a CEO suggesting  “it is time we return to our entrepreneurial roots.”  Academic management research suggests changing the culture of a large organization takes years if not decades.  This is one area where the Church, because of papal infallibility, may have an advantage.  In the right hands, absolute authority could accelerate change.

Pope Francis Tells Catholics to Confess Their Sin Directly to God Instead of Through a Priest During Coronavirus Pandemic | BCNN1 - Black Christian News NetworkDespite pushback from conservative bishops and cardinals, Pope Francis has challenged some traditional teachings from the past.  For example, he acknowledged even atheists can go to heaven (that’s a relief).  He has promoted economic justice and challenged corporate greed and trickle down economics.  And just this weekend, he cautioned the American conference of bishops about their rush to judgment on who is worthy of communion.

During a strategic planning exercise during my time at the Ewing Kauffman Foundation, I asked to see the file of Mr. K’s handwritten notes on which he based the charity’s endowment.  It gave me an entirely new perspective about his intent and how I should approach my own work.  I imagine the Catholic Church might have the same epiphany if it went back to their founding entrepreneurs’ original notes.

For what it’s worth.
Dr. ESP

Theory Theory

Culture

 

Juneteenth commemorates the day abolition made it to Texas.  Slaves had officially been freed three years earlier.  But word had not gotten to Texas because they only had Fox News.

~Comedian Costaki Economopoulos

While I felt the first observance of June 19th as an official national holiday was a good time to explore the current debate over “critical race theory (CRT),” a local columnist Steve Nicklas chose otherwise.  His column is called, “Steve’s Market Place,” though the only thing he seems to be selling is systemic ignorance.  Praising Florida Governor Ron DeSantis for banning discussion of critical race theory in public schools, Nicklas explains:

(Children) should not learn controversial policies like critical race theory, racism, discrimination, etc.  They especially should not learn about it in taxpayer funded public schools.

He goes on to quote DeSantis, who claims CRT teaches “kids to hate their country, and to hate each other.”

Ironically, these frequent opponents of “cancel culture” are the leading proponents of banning debate whether legal and institutional barriers to African-American participation in society has a lasting de facto impact long after their de jure prohibition.  Yet, that is not their most egregious violation of the learning process.  The operative word in CRT is neither “critical” or “race.”  It is the term “theory,” which is at the very heart of scholarship.  It is the middle waystation along a learning process which begins with a hypothesis and ends with empirical evidence which either confirms or debunks the theory.

Nor are most theories written in stone.  At one time, scientist assumed atoms were the smallest particle of matter.  However, with more sophisticated tools of observation, such as electron microscopes, theories about the composition of matter have been updated multiple times (from atoms to quarks to preons).

Theories have a second role in the scientific exploration of the universe.  They force us to ask the next question.  I recently listened to Neil deGrasse Tyson explain the empirical evidence he believes proves the big bang theory.  The interviewer then asked, “Was there anything before the big bang?”  To which, Tyson replied, “That’s a great question, and someday I hope to have the answer.”  Tyson further admitted the evidence only explains “what happened,” not “why it happened.” This is how we learn and civilization advances.

Of course, folks like Nicklas and DeSantis will be the first to accuse people like me of making this about race.  But take the word “race” out of the equation.  Has either Nicklas or DeSantis attached the same stigma to the “critical theory” whether the 2020 election was stolen or January 6th was not an insurrection?  Didn’t the governor just mandate a moment of silence at the beginning of each school day under the theory reflection will make a difference in the quality of a child’s education?  When the only time a politician or pundit rails against debating a theory is when it is associated with race, it is difficult to believe race is not the defining factor.

However, the more dangerous precedent is suppressing Socratic debate, which facilitates dialogue among individuals with differing opinions, information and experience as a means of challenging the status quo and stimulating critical thinking. Just imagine if academia over the past 2,500 years was governed by the Nicklas and DeSantis principle of avoiding “controversial” ideas.  Would we still believe the sun revolves around the earth or that leeches are the preferred treatment of most diseases?

James Samuel Coleman - WikipediaOf course, the ultimate irony is DeSantis’ positing his own theory–teaching racial history in public schools leads to young people hating America and fomenting interracial enmity.  Wouldn’t it be nice to know if he is right?  Too bad he has not reached out to someone like the late sociologist James Coleman, who produced the evidence racially separate equation was anything but equal, to test his theory.  I wonder why.  I have my own theory.  Maybe he already knows the answer.

For what it’s worth.
Dr. ESP

מתוך רבים, אחד

Politics

The title of today’s blog is the Hebrew translation of the Latin phrase “E Pluribus Unum” or in English, “Out of many, one.”  The Latin version is prominently displayed on the Great Seal of the United States and most U.S. currency.  Reference to “many” has always been viewed as a descriptor of the diverse American population.  Diverse in terms of nation of origin, race, religion, gender and ideology.  However, this past Sunday, we witnessed a different, and perhaps, more utilitarian value of this adage.

Naftali Bennett: The rise of Israel's new PM - BBC NewsBy a vote of 60-59, the Israeli Knesset (parliament) sanctioned a new governing coalition, headed by prime minister Naftali Bennett, consisting of members from eight political parties.  מתוך רבים, אחד A New York Times headline describes the alliance as “A Fragile Israeli Coalition, With Some Underlying Glue.”  Fragile because its membership spans the political spectrum ranging from Bennett, Israel’s first orthodox Jewish prime minister and leader of the ultranationalist Yamina party, to Mansour Abbas, the first Arab-Israeli citizen to serve as a deputy minister.  The glue?  A desire to deny former prime minister Benjamin Netanyahu another four years in office after what coalition members viewed as a 12-year toxic environment which divided the country.

Some American analysts such as Richard Haass, author and president of the Council on Foreign Relations, express pessimism about the coalition’s future.  Haass believes the new government will have a difficult time reconciling intra-coalition differences when faced with contentious issues such as expansion of Jewish settlements on the West Bank.  In contrast, Susan Page, Washington bureau chief for USA Today, has a more optimistic outlook.  Page hopes the coalition, in order hold together, will be forced to find more centrist common ground, promoting compromise over confrontation.

I was originally going to title this entry, “David Versus Goliath: The Sequel,” with Israeli as the sling-shot toting future king and America as his adversary.  But in this version, David does not slay the giant.  Instead he sees the titan as merely a bigger version of himself, struggling with many  of the same issues, primarily interested in his own security and prosperity.  David says to Goliath, “We have too many experiences in common from which we can both learn.  Like us, your current legislative majority is hanging on by a thread, one vote, 51-50 counting your vice-president.  At any time, that majority could collapse.”

The litmus test for membership in the Israeli coalition?  Ensuring Netanyahu does not return to power.  All else is negotiable.  Which raises the question, “Why hasn’t a multi-party alliance coalesced in the U.S. Congress to ensure that Trump and his message of faux populism laced with corruption are banished from the political landscape?”  This is where David (aka Israel) provides the model America could emulate.

I know, you are going to point out we are mired in a two party system.  That may true de jure, based on the labels on which most sitting members ran for election.  De facto, there are at least six parties.

  • Progressive Democrats (Warren, AOC)
  • Centrist Left Democrats (the majority of the current members of Congress)
  • Conservative Democrats (Manchin, Sinema)
  • Conservative Republicans (Cheney, Romney)
  • Insurrectionist Republicans (Hawley, Greene, Jordan, et. al.)
  • Independents (Sanders, King)

In Israel, no member of the new governing coalition is expected to change his/her party affiliation.  Their only obligation is to caucus with the majority on parliamentary votes of confidence.  Why couldn’t the same be true in Congress?  Cheney and Romney need not switch parties.  But they should consider becoming part of a “democracy caucus” for which the unifying glue is unconditional support of expanded voting rights and accepting the will of the people.  Imagine if Romney or Cheney gave the the following speech on the floor of their respective chambers of Congress.

Today, I re-affirm my commitment to conservative Republican values and allegiance to the Constitution.  However, I fear both are threatened if the current leadership of my party continues to question the outcome of the 2020 presidential elections, pursues policies which restrict the ability of Americans to vote and promotes debunked conspiracy theories.  Therefore, until such time as my party rebuffs such attacks on democracy and the rule of law, I cannot support any return to power by Republican leadership.  On matters of leadership and legislative rules, I will caucus with the Democrats.

How farfetched is this scenario?  The seed has already been planted in the form of the “problem solvers caucus,” a bi-partisan group of 56 House members who are “committed to finding common ground on many of the key issues facing the nation.”  Their current agenda includes response to the pandemic, infrastructure, health care, immigration, criminal justice reform and gun/school safety.  Ironically, voting rights is not on the list.  However, the caucus did support several House rules changes to reduce gridlock authorized by Speaker Nancy Pelosi.

Mitch McConnell and Kevin McCarthy continue to support Trump and his Trumpettes in Congress because they believe it is their path to re-assume the leadership in 2022.  But what happens if the ten Republican representatives and seven GOP senators who voted their conscience when it came to Trump’s second impeachment told the minority leadership, “We do not give a damn if a majority of the next Congress is elected as Republicans, you have already proven you cannot be trusted with the power of majority status.  Therefore, on the first day of the 118th Congress next January we will caucus with the Democrats.”

Seventeen GOP members of Congress–Liz Cheney (WY), Tom Rice (SC), Dan Newhouse (WA), Adam Kinzinger (IL), Anthony Gonzalez (OH), Fred Upton (MI), James Beutler (WA), Peter Meijer (MI), John Katko (NY), David Valadao (CA), Richard Burr (NC), Bill Cassidy (LA), Susan Collins (ME), Lisa Murkowski (AK), Mitt Romney (UT), Ben Sasse (NE) and Pat Toomey (PA)–have the power to shut down the caravans that continue to make the unholy pilgrimage to Mar-a-Lago.  My bet is many of the cowards who fear Trump voters while denouncing the former guy behind closed doors, will quickly turn once they realize permanent minority status is the consequence of doing otherwise.  As members on both sides of the aisle have often declared, “Being the minority party in Congress is no fun.”

For what it’s worth.
Dr. ESP