Sunday, November 11, 2018

America Is Diverse, Not Divided

Consider this headline on Bloomberg: "Election Shows That U.S. Divisions Are Only Growing Wider -- Social discord, partisan rancor and government sclerosis are about to get worse."

Or this headline in The New Yorker: "America’s Fever Is Still Rising"

Consider also this map of "Red" and "Blue" states based on the recent mid-term election results:

Or this map of Congressional distict results:

Where in either map is there a modern-day equivalent of the Mason Dixon Line, which set the northern border of the pre-Civil war "slave" states and then the northern border of the short-lived Confederate States of America? Where is the divide?

How many of the fifty states are wholly "Red" or wholly "Blue"? Even presumably "deep blue" California and New York have noticeable swaths of Republican Red.

Contrary to the breathless hyperbolic headlines, what these maps illustrate is not division but diversity. Both Republicans and Democrats look to Washington DC for national leadership. Both Republicans and Democrats, in seeking power within the Federal government, evince an awareness of a truly united nation. Implicit in all the electioneering, the preening, the posturing, is the premise that these United States are still as we proclaim to be in our Pledge Of Allegiance, "...One Nation...Indivisible, with Liberty and Justice for all."

No, Republicans and Democrats do not agree on what constitutes "justice". Conservatives and progressives do not agree on what meaning we should have for "liberty."  Yet there is still much upon which Republicans and Democrats do agree, and we see this in the mid-term elections and the aftermath:
  • Republicans and Democrats agree that elections matter.
  • Republicans and Democrats agree that all votes are important.
  • Republicans and Democrats agree that electoral outcomes set the agenda, the direction, and the tone of each administration and session of Congress. 
  • By their politicking and even by their pandering, Republicans and Democrats alike acknowledge the eternal truth of Hamilton's assessment of American democracy: "Here, Sir, the people govern."
The legacy media--deservedly and derisively termed the "Fake News Media"--are championing a false vision of the United States. Through such hyperbolic headlines as mentioned above, through such blatant propaganda, they exacerbate disagreement into division. They have transformed worthy debates into "wedge issues" and then hammered relentlessly on those issues to produce the signs of division they so hypocritically bemoan today.

There are real issues and real disagreements among Americans. There are pressing issues for which our governments must devise solutions--our immigration system needs reform, our infrastructure needs repair--and there are real concerns about foreign policy, trade relations, healthcare, just to name a few. Americans do not see eye to eye on any of these issues.

Americans have never seen eye to eye on issues. Americans have disagreed and debated since the founding of the Republic. In virtually every decade since the Constitution was drafted in 1787, there has been passionate and partisan debate over contentious issues, ranging from the role of the Federal government to slavery to Manifest Destiny to the New Deal to the Civil Rights movement of the 1960s. Americans disagreed over Operation Iraqi Freedom. Americans disagreed over TARP and the bank bailouts of 2008, giving rise to the Tea Party, and disagreed over Obamacare, resulting in the wave election of 2010.

Yet the Republic has endured. The government stands. We The People are still here.

That is something the Fake News Media and anyone else who would promote the propaganda of rampant rancor and petty partisanship would do well to remember. For despite their very best efforts, the Union is still standing.

Wednesday, November 7, 2018

America Voted, And The Winner Was...."None Of The Above"

The results are in, and once again the American electorate has voted for gridlock.

With a number of races still to be called in the House, the Democrats thus far have an absolute minimum of seats needed to control that chamber.  The Republicans, meanwhile have added at least 3 seats to their majority in the Senate.

The legacy media is already giving their typical partisan spin on the results: Dana Milbank at the highly left-leaning Washington Post titled his assessment "America Steps Back From The Abyss". Fox News, ever the reliable establishmentarian conservative outlet, reaches the opposite conclusion with "Thanks to Trump, the Blue Wave Becomes a Ripple.".

Ultimately, both are wrong.

One of the enduring myths of government in the modern era is the notion that Americans want government to do much. Historically, Americans take a dim view of activist government. Since World War II, there have been only 14 out of 37 sessions of Congress (including the upcoming session) where the same party controlled the Senate, the House, and the Presidency:


During that same period, America has had 20 sessions of Congress with a Republican President and only 17 sessions with a Democrat President. Republicans have controlled the Senate for 13 sessions and the House for 11 Sessions. Only once has America voted to give a President a unified Congress, and that was in 2002, when President George W. Bush was handed a Republican Senate to go with a Republican House. In 2010 and now again in 2018 the voters have responded to unified government by giving control of the House to the opposition party.

What America rejects is not so much Democrat and Republican politicians, but rather unified and effective government under either.  If there is any historical consensus among the electorate, it is for a Republican President with at least one chamber of Congress in Democratic hands. Partisanship is not the expressed will of We The People, not over the long term.

America's notion of good government, then, is not government that is either Democrat Blue or Republican Red. Good government in this Republic is Democrats and Republicans together addressing the nation's issues and attending to the nation's business.  Divided government produced the 1986 tax reforms under Ronald Reagan, and the 1996 welfare reforms under Bill Clinton.

In contrast, the unified Democratic administration of Lyndon Johnson ended in the social upheaval and chaos of 1968. The unified Democratic administration of Jimmy Carter resulted in "stagflation" which ushered in the Reagan era. The unified Republican administration of George W. Bush authorized Operation Iraqi Freedom. The unified Democratic administration of  Barack Obama resulted in Obamacare.

America's experience of unified government does not encourage us to indulge in it often.

If there is an election mandate arising from the 2018 midterm election results it is this: Democrats and Republicans must work together, and the Congress must work with the President to conduct this nation's business. If there is an electoral rebuke to be derived from these results it is to the notion that either party is much trusted by the American electorate with untrammeled power.  America prefers government that does what is necessary but no more than that--Americans prefer government to do too little than too much.

When given the choice between Democrats in power and Republicans in power, the choice of We The People has been once again "none of the above."

Hopefully, our elected officials in Washington will understand this and will behave accordingly.

Sunday, November 4, 2018

Still "We The People"

On November 6, 2018, just two days from now, America will have an election.

In just two more days, America heads to the polls, in what is undoubtedly the most closely watched mid-term election at least since World War Two, if not in the history of the United States.

In just two more days, the entire House of Representatives will be (re)elected, and one third of the Senate will be (re)elected.

In just two more days, the political composition of our nation's government will be decided, and we will know how many Democrats and how many Republicans will sit in either house within the Congress.

There has been prognostication, punditry, and arrogant analysis on both sides ad nauseum. As of this writing, both sides are alternately acting as if they are on the cusp of electoral greatness and teetering on the brink of electoral disaster.  

As regards to which party might take control of either the House of Representatives or the Senate, my sentiment is best expressed by Clark Gable at the end of Gone With The Wind--"Frankly, my dear, I don't give a damn."

The Democrats may take control of the House. It is unlikely they will take control of the Senate. In no likely scenario do they have enough votes to impeach President Trump and throw him out of office.  

Regardless of the electoral outcome, Democrats and Republicans and President Trump will still have to work together to advance American interests and cultivate American prosperity.  In this regard the election of 2018 is exactly like every other mid-term and Presidential election we have had since the founding of the Republic.  On November 7, just like on every day after an election, the government will still have to govern, and the rest of us will still have to get up, go to work, and work to move our individual lives forward in whatever direction we have chosen.

Regardless of the electoral outcome, I hope the public discourse will shift away from politics and  towards policy.  Instead of discussing the merits and demerits of this or that political figure, the fitness or unfitness of Donald Trump for the Oval Office, let us instead discuss the merits and demerits of this or that policy. Let us sound off on whether more tax cuts are needed, on whether President Trump's border wall should be funded, on whether the government should continue to use tariffs as a weapon in internecine trade warfare with the world. Let us voice our opinions on immigration reform and on birthright citizenship. Let us turn our energies away from perfecting politics and towards perfecting policy.

Regardless of the electoral outcome, let us realize that we are defined by things other than how we cast our ballots. We are defined by our jobs, by our communities, by our families, and we are defined by our country. 

We The People are not merely Americans, we are America.  Whether we vote for Democrats, Republicans, Conservatives, Libertarians, Greens, or for any other political party, we are still just Americans--one people, not many hyphenated subdivisions of a people.

President Kennedy, speaking to the 1963 graduating class at American University, stated that "...our most basic common link is that we all inhabit this small planet. We all breathe the same air. We all cherish our children's future. And we are all mortal." 

A quarter century later, President Reagan, in his Farewell Address at the conclusion of his Presidency, reminded us that our government begins with us, with "We The People":
"We the People" tell the Government what to do, it doesn't tell us. "We the people" are the driver - the Government is the car. And we decide where it should go, and by what route, and how fast. Almost all the world's constitutions are documents in which governments tell the people what their privileges are. Our Constitution is a document in which "We the People" tell the Government what it is allowed to do. "We the people" are free.
Regardless of the electoral outcome, we still inhabit this one small planet. We still inhabit this one nation. We still breathe the same air. And we are all still mortal.

Regardless of the electoral outcome, we are still one people. We are still one nation. We are still the masters of our government, and never its servants. We still tell government where to go, how to get there, and how fast to go.  We are still free.

Regardless of the electoral outcome, we will never fully agree on either politics or policy. We will never, as a people, be unanimous in either support or opposition to a President, to an Administration, to a Congress, or to any act or policy they might seek to enact. We are one people, but not of one mind, and we are not meant to think and act in perfect uniformity. 

We are one people, and as a people we are meant to discuss and debate, to share ideas, to let ideas compete with ideas so that the best thoughts will prevail. Our more perfect Union was formed by debate, and it grows by debate. The true American Revolution came not on the battlefields of Lexington, Concord, Trenton, or Yorktown, but in the meeting hall in Philadelphia where Americans joined together to create a constitution and thereby recreate a government. 1787 was the first time in history men redefined their government without a shot fired in anger--a true political revolution unlike any before or since.

Let us remember that, let us be mindful of that, and let us always strive to live up to that. Let us be, now and always, "We The People".

Friday, November 2, 2018

"Subject To The Jurisdiction" -- What The Words Mean

President Trump, in his peculiarly Trumpian fashion, ignited a firestorm of debate and controversy when he speculated in an interview with Axios that he would end so-called "birthright citizenship" with an executive order. In the world according to Trump, he can end that practice with a single stroke of his pen.

Trump's speculation is controversial not because, as many commentators have suggested, the law surrounding birthright citizenship is settled and beyond contestation, but because in fact there are large swaths of gray surrounding the policy.  As I pointed out in my last posting, the existing case law is far narrower in its language and scope than many want to believe.

The one point of agreement on all sides is this: the nub of this question is the meaning of a particular phrase in Section 1 of the Fourteenth Amendment--"and subject to the jurisdiction thereof".  For clarity, here is the full first sentence of that section:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 
In order to fully apprehend the legal principles established by this sentence, we must first understand its grammar.  The subject of the sentence is "persons", the verb is "are"--present tense of the infinitive "to be"--and the modifiers of "persons" are "All", "born or naturalized in the United States", and "subject to the jurisdiction thereof." The complement to the verb is "citizens of the United States and of the State wherein they reside."

With this structure, "subject" is an adjective (because it modifies the noun "persons").  Here we must now ask the question: how does this adjective modify persons.  We can ascertain that by inspecting the other adjective and participle that also modify "persons", "born" and "naturalized".  An equivalent construction for each would be "All persons who are born..." and "All persons who are naturalized...." Given the parallel grammatical structure employed, we may apply this same alternate construction to "subject"--All persons who are subject to...."

That "subject" is an adjective is of crucial importance, because it governs what we can make of the prepositional phrase "to the jurisdiction thereof".  If "subject" were a verb, we would have to apply a transitive verb meaning, of which Merriam-Webster offers up three:
1a : to bring under control or dominion : SUBJUGATE
b : to make (someone, such as oneself) amenable to the discipline and control of a superior
2 : to make liable : PREDISPOSE
3 : to cause or force to undergo or endure (something unpleasant, inconvenient, or trying)
However, as an adjective "subject" has these meanings:
1 : owing obedience or allegiance to the power or dominion of another
2a : suffering a particular liability or exposure
b : having a tendency or inclination : PRONE
3 : contingent on or under the influence of some later action
Which of these meanings do we apply to the first sentence of the Fourteenth Amendment?  The general principle is that dictionary definitions are arranged chronologically--that is, the oldest (and therefore the original) definition appears first, and subsequent definitions appear thereafter. Absent any clear contextual reference to infer otherwise, we should generally apply that first, or denotative, definition. Thus, in the Fourteenth Amendment, "subject to the jurisdiction thereof" means "owing obedience or allegiance to the power or dominion of the jurisdiction of the United States."

However, we have positive proofs this is the correct definition as well.  One of the Fourteenth Amendment's primary authors, Senator Jacob Howard of Michigan, made this declaration regarding the phrasing:
The first amendment is to section one, declaring that all "persons born in the United States and Subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside. I do not propose to say anything on that subject except that the question of citizenship has been fully discussed in this body as not to need any further elucidation, in my opinion. This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country.
Senator Lyman Turnbull, another of the principle framers of the Fourteenth Amendment, and the actual author of the "subject to the jurisdiction thereof" phrase, amplified Senator Howard's commentary thus:
The provision is, that ‘all persons born in the United States, and subject to the jurisdiction thereof, are citizens.’ That means ‘subject to the complete jurisdiction thereof.’ What do we mean by ‘complete jurisdiction thereof?’ Not owing allegiance to anybody else. That is what it means.
From these proofs that "subject" is to be understood as "owing obedience or allegiance", we may also conclude the proper meaning of "jursidiction" in this regard is the second "the authority of a sovereign power to govern or legislate". The original definition of jurisdiction is focused on the operation of courts and judicial bodies, which is simply too narrow a definition to be coherently applied in this sentence.  

These definitions also comport with the notions of "subjectship" that formed the bulk of the reasoning in the pivotal Supreme Court Case United States v Wong Kim Ark (169 US 649 (1898)). Much of the reasoning in English common law in this realm dealt not with citizenship per se, but with subjectship--i.e., under what circumstances was a person deemed a subject of the British Crown?  

Interestingly, a number of legal commentators disregard both the grammatical construction of that first sentence in the Fourteenth Amendment and the substantive ramifications thereof.  Attorney and legal scholar James Ho, writing in the Los Angeles Times, offered this assessment:
When a person is "subject to the jurisdiction" of a court of law, that person is required to obey the orders of that court. The meaning of the phrase is simple: One is "subject to the jurisdiction" of another whenever one is obliged to obey the laws of another. The test is obedience, not allegiance.
The "jurisdiction" requirement excludes only those who are not required to obey U.S. law. This concept, like much of early U.S. law, derives from English common law. Under common law, foreign diplomats and enemy soldiers are not legally obliged to obey our law, and thus their offspring are not entitled to citizenship at birth. The 14th Amendment merely codified this common law doctrine.
There are two problems with this view.  First there is the obvious contradiction when considering the particular case of the illegal alien: The dictate of the law--and therefore of the orders of any court--is that said illegal alien not be in within the borders of the United States at all; if the requirement is obedience, and the person refuses to obey this most basic of instructions, the clear implication is they are placing themselves beyond the obedience necessary for conferring birthright citizenship.

Further, this view ignores the implicit social contract in subjectship as defined by Sir William Blackstone and referenced in Wong Kim Ark (emphasis added):
Two things usually concur to create citizenship: first, birth locally within the dominions of the sovereign, and secondly, birth within the protection and obedience, or, in other words, within the allegiance of the sovereign. That is, the party must be born within a place where the sovereign is at the time in full possession and exercise of his power, and the party must also, at his birth, derive protection from, and consequently owe obedience or allegiance to, the sovereign, as such, de facto
In other words, obedience and allegiance arise from the premise that the duty of the sovereign authority is to protect the inhabitants of the realm.  Yet the illegal alien is not protected by any sovereign authority--quite the contrary, if placed within the grasp of the sovereign authority he is presented with detention and deportation. If a person, at his birth, does not derive protection from the sovereign authority, how can there be a consequential owing of either obedience or allegiance, and thus a basis for bestowing citizenship?

Akhil Amar similarly ignores both the documented legislative background of the Fourteenth Amendment and the legal implications of the grammatical construction, even as he relies on the same formulation to (mis)state his case:
 ...the Fourteenth Amendment’s text is more capacious—speaking not just of African Americans, but of “[a]ll persons.” This sweeping language grants U.S. citizenship to everyone born here and subject to our laws. The only relevant exception today (given that Native Americans no longer live in the same kind of tribal regime that existed in the 1860s) is for those who owe their allegiance to another sovereign, such as the children of foreign diplomats.
Amar is relying on a specious inference that "subject to" relies on the secondary connotative meaning "suffering a particular liability or exposure." Even if we did not have the commentaries of the Fourteenth Amendment's authors declaiming this very posture, the grammatical construction of this first sentence within the Amendment simply does not allow for as an expansive interpretation as Amar desires. Again we are confronted with the paradox: if the test is obedience to the law, the illegal alien daily fails that test, for his presence is by definition a defiance of the law. If the test is allegiance, the illegal alien fails that test as well, by that same defiance. As a matter of law and of logic, if the illegal alien wishes to be subject to the laws of the United States, the first step he must take must necessarily be to remove himself from the United States.

As I have stated before, "...immigration is almost exclusively a matter of law, of what the law is, and what the law should be." Citizenship, birthright and otherwise, is likewise a matter of law--of specific law, of statutes, and precise language within the Constitution. All law is first and foremost an exercise in language--an assemblage of words whose meanings combine to elucidate the principles by which a society is to be governed.  As laws are devised in a specific place and time, forever fixed to that place and that time, so too is the language of the law fixed to that place and that time. It is quite proper to debate what the language of the law (and the law itself) should be, but that debate is fatally flawed if we conflate what the language is and what we desire the language to be.

If one wishes to discuss or debate a law, one must first understand the language of that law.  A law says whatever the words mean. This has always been the order of things; this shall always be the order of things.

Wednesday, October 31, 2018

President Trump's Radical Notion on Birthright Citizenship: Enforce The Law

Without a doubt, President Trump excels at one thing above all else: a perverse capacity to make liberal heads explode with a word. Witness his latest triggering of progressives in both government and the media with his contemplation of an executive order to curtail birthright citizenship.
"It was always told to me that you needed a Constitutional amendment–guess what? You don’t," Trump said. "Number one, you don’t need that. Number two, you can definitely do it with an act of Congress. But now they’re saying I can do it with just an executive order. Now, how ridiculous–we are the only country in the world where a person comes in, has a baby, and the baby is essentially a citizen of the United States for 85 years with all of those benefits? It’s ridiculous. It’s ridiculous–and it has to end."
However, there is one important facet of President Trump's speculations the media shamefully neglects in its pearl-clutching about birthright citizenship: the actual state of the law.

United States v Wong Kim Ark (169 US 649 (1898)) was the case that brought legal clarification to the 14th Amendment's citizenship clause, and the meaning of the pivotal phrase "subject to the jurisdiction". The standard elucidated within Wong Kim Ark is that a child born within the United States of parents with permanent legal residence and a permanent domicile within the United States, can claim citizenship at birth.  Permanent legal residence excludes transient migrants, "birth tourists", and illegal aliens from this class of persons. Wong Kim Ark makes repeated reference to this distinction, and clearly establishes the distinction as relevant in determining upon whom birthright citizenship may be conferred.

The closest we come to a judicial ruling that erases the distinction between children born of legal immigrants vs illegal aliens is Plyler v Doe (475 US 202 (1982)).  In that decision, Justice William Brennan asserted in a footnote to the ruling that there was no discernible difference "between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful".

However, Plyler's concern was not citizenship, but the applicability of laws (and thus the 14th Amendment's stricture for the equal protection of the laws).  Certainly even illegal aliens charged with crimes are liable to arrest and prosecution under US law--in this regard Plyler's observation is almost common-sensical.  Moreover, Brennan's assertion draws upon language within Wong Kim Ark that implies equivalence between the phrases "subject to the jurisdiction" and "within the jurisdiction", yet ignores the repeated use of the term "resident alien".  

The US Customs and Immigration Services uses the term "resident alien" with respect to three categories of persons: Permanent Resident, Conditional Resident, and Returning Resident.  All three categories are categories of LEGAL immigrant status.  An "illegal alien" is not (nor can be understood to be) a "resident alien". 

Thus Brennan's assertion is flatly contradicted both by current US law and regulation as well as by the broader language of Wong Kim Ark.

Where does this leave Trump's proposed executive order?

Intrinsically, executive orders enjoy shaky legal foundations, simply because no executive order can withstand the passage of contravening legislation. If Congress passes a law that negates an executive order, there is no doubt but that the law will prevail.  Thus any executive order drafted by President Trump would, much like President Obama's execrable DACA order, be ever at the whim of subsequent presidents as well as the Congress.

However, the order President Trump has described would be addressing illegal aliens and transient migrants, neither of whom qualify as "resident aliens", which qualification is clearly established by Wong Kim Ark as the essential predicate for birthright citizenship.  Thus, the particulars of the proposed executive order would appear to be in line with existing law and the 14th Amendment, and would amount to little more than a directive to the Departments of Justice and State to stringently apply existing legal standards with regards to acknowledgment of birthright citizenship.  Such an order, while amenable to the legislative acts of Congress, is unquestionably within a President's scope of Constitutional authority to see that the laws are faithfully executed.

Contrary to the media hype, President Trump is operating within the scope of existing law. It is his opponents and the media who are seeking to unilaterally (and illegally) nullify existing law.

Sunday, September 23, 2018

Women Refuse To Report Rape--But The "System" Is NOT To Blame

The"#MeToo" movement shone a media spotlight on workplace sexual harassment. Now Christine Blasey Ford is shining a media spotlight on sexual assault.  Social media even has a hashtag, "#WhyIDidntReport", as women share unreported sexual assault experiences.

What are the facts about reporting of rape and the prosecution of rape?
  1. According to RAINN (Rape And Incest National Network), only 310 of every 1,000 rapes are reported. For comparison, 627 of every 1,000 assaults are reported, and 619 out of every 1,000 robberies are reported. 
  2. Of 310 reported rapes, 57 (20%) result in an arrest, and 11 (3.5%) proceed to prosecution. For robberies, the percentages are 27% and 6%, respectively, and for assaults the percentages are 40.7% and 16.7%, respectively.
  3. Of every 11 prosecutions for rape, 7, or 63.6%, result in conviction. The conviction rates for robberies and assaults are 59.4% and 39%, respectively.
  4. The average sentence for sexual assault is between 8 and 9 years, nationwide (Note: this is a broad average and does not distinguish among categories of sexual assault).
  5. The reasons given for not reporting rape and sexual assault generally are as follows:
    • 20% feared retaliation
    • 13% believed the police would not do anything to help
    • 13% believed it was a personal matter
    • 8% reported to a different official
    • 8% believed it was not important enough to report
    • 7% did not want to get the perpetrator in trouble
    • 2% believed the police could not do anything to help
    • 30% gave another reason, or did not cite one reason
The reasons for not reporting deserve discussion. 

48% of unreported rapes are for reasons unique to the victim. 8% of unreported rapes are reported to someone besides law enforcement. Together, over half of unreported rapes are a simple choice not to report them to police. 

Only 15% of unreported rapes are because the victim believes the police can or will do nothing about the crime. 

These statistics prove that most who do not report a rape do not believe the legal system will ignore them.

The facts prove a prosecution for rape is more likely to result in a conviction than one for either robbery or assault. With a decade of incarceration the likely result from such a conviction, the facts also prove the prosecution of rape is taken very seriously in this country. 

The facts also prove that building the case for prosecution is far more problematic for rape than for robbery or assault. Rape cases are simply more difficult than robbery or assault cases. Still, when people make a credible case for their accusations of rape, they are the most likely of crime victims to see justice done.

Here we must acknowledge a fundamental truth: our criminal justice system is not an arbiter of truth. It is not intended to be. Our entire legal system focuses on two outcomes at trial: proven and unproven. 

This is why criminal verdicts are returned as either "guilty" or "not guilty". The verdict does not offer any commentary on the truth of a charge, merely on the evidence given. As David French points out in the National Review:
Anyone who tells you that we can statistically peg the number of “false” rape claims is peddling a fatally flawed statistic. There’s a simple reason why: Our system does not adjudicate whether a claim is true or false. It adjudicates burdens of proof. 
French highlights a study showing that 44.9% of reported rape cases were classified as "Case Did Not Proceed", the criteria for which were defined as follows:
This classification was applied if the report of a sexual assault did not result in a referral for prosecution or disciplinary action because of insufficient evidence or because the victim withdrew from the process or was unable to identify the perpetrator or because the victim mislabeled the incident (e.g., gave a truthful account of the incident, but the incident did not meet the legal elements of the crime of sexual assault).
If one excludes cases that did not proceed from the statistics, the percentages of rape reports leading to arrest and trial are higher than those for robbery. If we impute the reasons for non-reporting as potential reasons for victims withdrawing from the process, then half of the cases that do not proceed potentially are because the victim backs out. If we exclude half of the "do not proceed" cases from the statistics, the rape reports leading to arrest and trial are on par with robbery. By that measure, rape victims who report the crime to the police have the same expectation of justice as any other crime victim.

All this is speculation, but it serves to make clear a brutal reality about reporting rape: the lack of criminal sanction for rape stems mainly from the choices of rape victims either to not report or to not proceed. 

The choice to report a crime is a personal choice. The essence of liberty is choice. The essence of freedom is choice. A free people must be allowed to make choices for themselves, including the choice to report or not report rape. 

However, no choice is free from consequence, good and bad. Consequence always proceeds from choice. People must choose whether or not to report rape, but that choice determine the consequences they will have.

When rapes are reported, the system does respond. Even those who choose not to report acknowledge this. When there is evidence, the system works more for rape victims than for other victims of violent crime. The statistics prove this.

Another fact deserves mention: 0% of unreported crimes result in arrests, trials, or convictions. When crimes are not reported, the guilty are guaranteed to go free; with crimes are reported, their odds of escaping incarceration decline significantly. This is true even for rape cases. 

When people refuse to report rape and then proclaim that "the system" is somehow broken, they argue an absurdity. Refusing to report rape--or any crime--prevents the legal system from working. Refusing to report gives the criminal a free pass, something the legal system would not do.

#WhyIDidntReport should really be #WhyIConsented.



Saturday, September 22, 2018

What Will Democrats Do To Give Christine Blasey Ford....Anything?

As of this writing, Christine Blasey Ford, who has accused Supreme Court nominee Judge Brett Kavanaugh of attempted rape when they were in high school, has yet to agree to testify before the Senate Judiciary Committee, despite Committee Chairman Senator Chuck Grassley repeatedly extending the window for her to make up her mind. It is far from certain that she will testify, given Senator Grassley's unwillingness to accede to certain demands, chiefly that she testify after Judge Kavanaugh and that other witnesses be subpoenaed as well, in advance of her testimony.

The potential outcomes are that she either will or will not testify.

(Update: sources close the Senate Judiciary Committee are reporting that Ms. Ford and Judge Kavanaugh have agreed to appear Thursday, 26 September 2018. Some details are still being worked at this time.)

If she testifies, Judge Kavanaugh will appear to rebut her claims and defend himself against her accusations. Whether Mark Judge, an high school friend of Judge Kavanaugh whom Ms. Ford places in the room when she was attacked is subpoenaed seems unlikely, although a compelling statement by Ms. Ford could cause the committee to call him and potentially others as witnesses. If, as seems likely based on news reporting thus far, Ms. Ford's testimony largely repeats the charge without adding new detail pointing to new witnesses or possible corroborations, after the testimony is taken Judge Kavanaugh's nomination to the Supreme Court will likely proceed out of committee on a strict party line vote, and if he is confirmed it will likely again be on a strict party line vote.

If she does not testify, then Judge Kavanaugh's nomination appear to be a foregone conclusion. Certainly Senate Majority Leader Mitch McConnell feels quite confident about his chances before the full Senate.

Against the backdrop of these scenarios, with the strong probability that Judge Kavanaugh will be confirmed regardless of what she does, one can forgive Ms. Ford for not wanting to appear. A sense of futility would quite a normal state of mind under the circumstances.

Yet futility should be accompanied by frustration, for it need never have come down to this binary choice.
  • Senator Diane Feinstein did not have to withhold Ms. Ford's letter for six weeks, then leak its existence to the media rather than forwarding it to either the committee or to the FBI for inclusion in their background check on Judge Kavanaugh.
  • Democrats did not have make the ludicrous demand that the FBI investigate Ms Ford's claim, conveniently overlooking the jurisdictional reality that the FBI does not investigate sexual assault claims, and the procedure reality that the FBI does not make determinations of witness credibility when conducting background checks. As of this writing, the number of Democrats who have requested the Maryland State Police and the Maryland Attorney General investigate her accusation remains exactly zero.
  • Ms. Ford's attorney, Democrat activist Debra Katz, did not have to issue a serious of demands before Ms. Ford would deign to appear before the committee, demands which are not merely presumptuous in the extreme, but also fly directly in the face of American legal tradition--namely, that Judge Kavanaugh testify before Ms. Ford and not after, thus preventing him from effectively confronting her allegations.
  • Senator Kirsten Gillibrand did not have to absurdly and fatuously suggest that setting a time for a hearing where Ms. Ford could give her testimony and present her case against Judge Kavanaugh was, somehow, "silencing" her.
What should have happened? 

When Democrat politicians first met with Christine Ford and arranged for Debra Katz to represent her in this matter (it is no great leap to presume that Katz comes in via Senator Feinstein's office, given that Ms. Katz is a Beltway insider), they should have been preparing her from that point forward to testify. Senator Feinstein should have shared Ms. Ford's letter with the FBI immediately, allowing for Ms. Ford to be interviewed in private and for Judge Kavanaugh to respond in private, sparing both the public spectacle of the current media feeding frenzy. Senator Feinstein should have informed the Judiciary Committee of Ms. Ford's allegations, so that they could have been addressed in the regular order.

No Republican had a hand in any of these failures by Democrats. These are the results of choices made by Democrats and Democrats alone.

Further, to suggest, as Senator Gillibrand did, that Ms. Ford should be believed on the basis of her statement alone is monstrous. To believe blindly is to not care, neither about truth nor about Ms. Ford herself. Crime victims--assault victims in particular--get details wrong in almost every instance, including the identity of the perpetrator.  Add in the muddling influence of alcohol and the effect of time on memory, and the potential for error in her story increases exponentially. It is not a questioning of Ms. Ford's veracity to inquire skeptically as to her accuracy. 

Rather, to ignore her accuracy is to say her veracity is irrelevant. To ignore her accuracy is to say that it matters not what happened to her, it matters only that she is a woman, and that as a woman she is a victim of...something. To ignore her accuracy and proceed to destroy Judge Kavanaugh's life and reputation is to say it does not matter if her attacker receives a just penalty for his behavior.

To ignore Ms. Ford's accuracy is to ignore Ms. Ford. To ignore Ms. Ford's accuracy is to ignore Ms. Ford's trauma. It is as simple as that--and that is not justice by any measure.

What have the Republicans done in response to Ms. Ford's accusations?

Republican Senator Chuck Grassley, as chairman of the Judiciary Committee, has set a date for a hearing, where both Ms. Ford and Judge Kavanaugh will appear (though they would not be seated side by side, as some media outlets have reported). The agenda is for Ms. Ford to give her recitation of what happened to her 36 years ago, and for Judge Kavanaugh to respond in his own defense.  It is not a trial, and the committee is not a court, but the testimonies will be under oath, penalties of perjury would attach, and there would be a transcript of the proceedings. If relevant questions of fact arise during the proceedings, the committee has the ability to refer those questions to the FBI for further investigation as appropriate. The hearing, should it occur, potentially is the start of the investigation the Democrats have cried out for even as they have obstructed and prevented it.

That is what the Republicans have offered, and apparently in good faith. What have the Democrats offered? In encouraging Ms. Ford to not testify, what closure do they propose to give her? While they keep her name and her trauma in the headlines and on the news shows, seeking maximum political advantage against Republicans in the upcoming mid-terms, what solace do they provide?

While the Republicans are doing their utmost to hear Ms. Ford, and to give Ms. Ford the platform she needs, the Democrats are doing their utmost to ignore Ms. Ford. The Democrats have weaponized her claim against the Republicans, but have done nothing to bring her any healing or any closure. They have taken her claim and left her behind.

We do not at this time know--and quite possibly we may not be able to know--if it was Judge Kavanaugh who attempted to violate Ms. Ford thirty-six years ago. We do know who is violating Ms. Ford today: Senator Diane Feinstein, Senator Kirsten Gillibrand, Senator Charles Schumer, attorney Debra Katz....Democrats all.

Wednesday, September 19, 2018

Ford-Kavanaugh: Justice Denied (For Everyone)

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Let us be clear on one point about Christine Blasey-Ford's accusation: she is accusing Judge Kavanaugh of a crime. The letter she wrote to Senator Diane Feinstein in July of this year is crystal clear on that:
Brett Kavanaugh physically and sexually assaulted me during high school in the early 1980's.
Let us also be clear on one other point about Ms. Ford's accusation. The crime is the only thing which is clearly articulated.  She names Judge Kavanaugh as her assailant, she names Mark Judge as a witness to the assault, and she provides no other specifics whatsoever. She does not specify either time or place, nor does she provide even a hint of contemporaneous corroboration. Quite the contrary, she admits in subsequent interviews that she told no one until some thirty years after the fact, during a therapy session with her husband.

As I noted in my previous post, the credibility of the accusation may be summarized thus:

There are no recitations of events to friends at the time.
There is no police report.
There is no complaint made against Judge Kavanaugh either at his school or anywhere else.
There is no proffered diary entry from Ms. Ford's teenage years.
There is no evidence.
There is no corroboration.
However, credible or not, there is an accusation. Where there is an accuser and an accused, there are rights, and there are due process.  The accuser has the unequivocal right to seek redress of grievance (and there is no denying that actual or attempted sexual assault is a significant grievance), and the accused has the unequivocal right to defend himself. Through the rights enshrined within the First and Sixth Amendments to the Constitution, our notion of due process, of justice for both accuser and accused, are defined.

Those rights will not be respected in this instance. Christine Blasey-Ford will not be given her First Amendment right to petition for redress of grievance, and Judge Kavanaugh will not be given his Sixth Amendment right to confront his accuser and rebut her claims. Whatever outcome there may yet be in this saga, a due process that respects the rights of accuser and accused will not happen.

Consider the date of Ms. Ford's original letter to Senator Feinstein:  July 30, 2018. From that date until mid-September, Senator Feinstein was unarguably in possession of this accusation, this clear and unequivocal accusation of crime, and did exactly nothing. She did not pass it along to the FBI for its background check of Judge Kavanaugh. She did not bring it to the attention of the Senate Judiciary Committee. She did not question Judge Kavanaugh about it, not in the written questions posed to Judge Kavanaugh, not in private meeting with Judge Kavanaugh, and not in his public testimony before the committee.

Only after the public hearings had concluded did Senator Feinstein leak the existence of the letter to the media. 

Senator Feinstein cannot, of herself, provide any redress of grievance to Ms. Ford. She cannot dispense justice. She cannot call Judge Kavanaugh to account, except to confront him through the process of his confirmation to the Supreme Court, which she pointedly declined to do.

Even after the accusation became public, and the Judiciary Committee began grappling with the reality of it, Senator Feinstein and the rest of the Democrats on the Committee declined to participate in any process that would allow either Ms. Ford or Judge Kavanaugh to make their respective cases. Senate Democrats pointedly refused to participate in a staff phone call interview with Judge Kavanaugh to discuss the accusation, claiming a need for a full investigation by the FBI--conveniently ignoring the jurisidictional reality that a sexual assault in Maryland would be investigated by either the Maryland State Police or, more likely, the local police department (although with location of the assault unclear, local jurisdiction would be difficult to determine).

From the end of July straight up until now, the Senate Democrats have sought not a full and fair hearing, an open process by which both accuser and accused might receive the justice that is their Constitutional due, but delay, obfuscation, and dissemblage.

Whether Ms. Ford's accusation is credible and deserving of a hearing is no longer relevant. Whether Judge Kavanaugh is guilty or innocent is no longer relevant. These questions are no longer relevant because the Democrats, in pursuit of pure partisan political advantage for the upcoming mid-term elections, have sought to obstruct any and all process by which this matter might be aired, and the truth gainfully sought. Senator Feinstein, her fellow Democrats on the Judiciary Committee, and indeed every Democrat serving within the Senate, have conspired to obstruct justice. Their actions and inactions in this matter, from the end of July up to now, admit of no other interpretations.

There will be no justice done in the admittedly spectral case of Ford vs. Kavanaugh. The Democrats have made sure of that.


Sunday, September 16, 2018

Christine Blasey Ford: No Proof And Less Credibility

After the confirmation hearings by the Senate Judiciary Committee regarding the nomination of Appellate Judge Brett Kavanaugh to the Supreme Court concluded, comes an eleventh hour allegation of sexual assault against Judge Kavanaugh by a woman who claims to have known him in high school, when the assault presumably occurred.

To be sure, the details provided are, at the very least, salacious, and had they been contemporaneous with the event, tantamount to the accusation of crime.

However, they are not contemporaneous.  The assault, if it occurred, was in the early 1980s.  The accuser, Christine Blasey Ford, by her own admission did not mention it to anyone until decades later:
Ford said she told no one of the incident in any detail until 2012, when she was in couples therapy with her husband. The therapist’s notes, portions of which were provided by Ford and reviewed by The Washington Post, do not mention Kavanaugh’s name but say she reported that she was attacked by students “from an elitist boys’ school” who went on to become “highly respected and high-ranking members of society in Washington.” The notes say four boys were involved, a discrepancy Ford says was an error on the therapist’s part. Ford said there were four boys at the party but only two in the room.  
Note that Ms. Ford not only makes no mention of the event until 30 years after the fact, she made no mention of Kavanaugh's name at first, and goes on to challenge the accuracy of the therapist notes she herself provided, presumably to bolster her claims of trauma.

How is this a credible allegation? Where in this sordid tale is there anything that amounts to substance? Where are the provable facts, the evidence, the corroboration of her claims?  There is none.

There are no recitations of events to friends at the time.

There is no police report.

There is no complaint made against Judge Kavanaugh either at his school or anywhere else.

There is no proffered diary entry from Ms. Ford's teenage years.

There is, however, refutation against Ms. Ford's claims.  In her statement, she alleges that a friend of Judge Kavanaugh's, Mark Judge, was present during the assault.  Mark Judge has flatly denied such an event ever took place: 
Reached by email Sunday, Judge declined to comment. In an interview Friday with The Weekly Standard, before Ford’s name was known, he denied that any such incident occurred. “It’s just absolutely nuts. I never saw Brett act that way,” Judge said. He told the New York Times that Kavanaugh was a “brilliant student” who loved sports and was not “into anything crazy or illegal.”
Ms Ford does not accuse Mark Judge of any misconduct.  In fact, she credits Mark Judge with facilitating her escape from the situation:
Ford said she was able to escape when Kavanaugh’s friend and classmate at Georgetown Preparatory School, Mark Judge, jumped on top of them, sending all three tumbling. She said she ran from the room, briefly locked herself in a bathroom and then fled the house. 
Her presumed hero of the moment, in other words, claims the event never happened.

Those defending Ms. Ford and her allegations will no doubt raise the standard rhetorical question, "why would she lie about it?"  Given the severity of the offense, that is a reasonable question.  Amazingly, Ms. Ford herself, and her husband, provide the answer:
In an interview, her husband, Russell Ford, said that in the 2012 sessions, she recounted being trapped in a room with two drunken boys, one of whom pinned her to a bed, molested her and prevented her from screaming. He said he recalled that his wife used Kavanaugh’s last name and voiced concern that Kavanaugh — then a federal judge — might one day be nominated to the Supreme Court.
Several things are remarkable about this statement. 1) the revelation presumably came six years ago, and nothing was mentioned to anyone at the time; 2) Russell Ford recalls his wife using Kavanaugh's last name (but not his full name); and 3) Ms. Ford and her husband were concerned that Judge Kavanaugh might be elevated to the Supreme Court.

Until that nomination happened, Ms. Ford was willing to "let bygones be bygones," and move on with her life. By her own admission, Ms. Ford is making this statement specifically to prevent Judge Kavanaugh from being confirmed as a Supreme Court Justice.

She is not seeking redress, she is not seeking justice, she is seeking merely to hurt Judge Kavanaugh.

Again comes the question: how is this a credible allegation? And again comes the answer:

There are no recitations of events to friends at the time.

There is no police report.

There is no complaint made against Judge Kavanaugh either at his school or anywhere else.

There is no proffered diary entry from Ms. Ford's teenage years.

There is no evidence.

There is no corroboration.

From this answer comes the conclusion: this is no credible allegation.  Not only is the allegation unproven, but the span of time since the alleged events has rendered the allegation unprovable.  It cannot be proven to be true, and it cannot be proven to be false.

Claims which cannot be proven have no place within a court of law. They have no place before the Supreme Court of the United States. They should have no place in the proceedings for confirmation of Supreme Court Justices.

Christine Ford's allegation have no place in the public dialog. Period.

Wednesday, August 22, 2018

More Convictions, More Guilty Pleas, Still No Evidence Against Donald Trump

Last month--July, 2018--I observed that, despite nearly two years of investigation, there was as yet no credible case of wrongdoing to be made against President Trump.

At the time, Paul Manafort's trial had not concluded, and Michael Cohen had not entered any guilty pleas. Now, Paul Manafort has been convicted on 8 counts of tax evasion and bank fraud, and Michael Cohen has pleaded guilty to tax evasion, lying to investigators, and, intriguingly, two counts of campaign finance violations.

Does this mean the "beginning of the end" for President Trump?  On the facts, Trump's demise seems as remote now as it did last month.

Manafort's offenses took place years before he became involved in the Trump campaign--his convictions, while of some comfort no doubt to Mueller, do not advance in any way a case against the President.  They do not bolster claims of "collusion" or of conspiracy, nor do they build a case of obstruction of justice. As big a headline as Manafort's conviction is, in the ongoing effort to unseat Donald Trump his conviction is simply not relevant.

Arguably, Michael Cohen's plea deal does create a legal issue for Donald Trump, but while Cohen is now alleging Donald Trump violated campaign finance laws, the best witness against Michael Cohen is none other than....Michael Cohen.

Previously, prosecutors have alleged that Cohen made payments to two women in order to buy their silence about alleged extramarital affairs with Donald Trump many years ago, and that he was repaid by the Trump campaign through a set of "sham" invoices submitted by Cohen for legal work. Cohen himself recorded a conversation with Donald Trump where they discussed one of the payments.  Yet that recording--quite unlike the recordings that doomed Richard Nixon during Watergate--have shown to have exactly zero traction as proof of malfeasance by Donald Trump.

Further, Michael Cohen has made numerous public statements denying the very thing he is now alleging.  We must therefore ask the question "was he lying then, or is he lying now?" With federal prosecutors threatening him with decades of jail time, the notion that he might, in the vernacular popularized by Alan Dershowitz, "not merely sing, but compose" is not at all unreasonable--a possibility that is strengthened by the fact that one of the offenses to which Cohen has pled guilty is lying to investigators; it is hard to fathom how a witness who is an admitted liar can enjoy much credibility at trial.

Finally, there is the reality of Michael Cohen being a lawyer and Trump's "fixer". As a lawyer, one of Cohen's ethical obligations to his client is to advise him of when a particular course of action is against the law, and to guide him so as to avoid violating the law. The crux of the prosecution's allegations of campaign finance violation is that Cohen was repaid by the Trump Campaign, as opposed to the Trump Organization--which would have not been subject to the same scrutiny regarding campaign finance law.  In other words, it is not the payments themselves that were illegal, but that they were paid out via a political campaign entity and not a private business.

Thus we have the conundrum that if Cohen knew or had reason to believe the campaign paying off the two women was an illegal activity, why did he a) not advise Trump to take a different tack on the matter, or b) bill the Trump Organization or even Donald Trump personally for reimbursement? By the same token, if a member of the bar submitted invoices to the Trump Campaign for reimbursement of expenditures in this fashion, is it unreasonable to impute from those invoices the likelihood that Cohen did not consider the modality of payments to be illegal?  

That Donald Trump largely self-funded his campaign only makes the legal case against him even murkier--ultimately, the argument that Cohen might simply have been repaid from the wrong checking account cannot be dismissed. Impeachment over what amounts to a bookkeeping error is too absurd even for the most rabid of Never Trumpers.

As for the payments and the extramarital affairs, the legal assessment of both, as well as their potential for supporting impeachment, can be summed up as "so what?" For all society's railings against adultery, it is not a crime. Buying silence--especially when the payments were solicited by the women involved, as is the case here--is also not intrinsically criminal.  In neither case did Donald Trump suborn perjury or encourage anyone to make false statements to law enforcement.

Moreover, President Obama received the largest FEC fine in history for improprieties in how his 2008 campaign handled contributions, and no one--not even the most strident of Obama critics--mentioned impeachment over the matter.

As a practical matter, when evidence is murky and unclear, that becomes "reasonable doubt" to a jury. Despite the fulminations and jeremiads against Trump coming on the heels of Cohen's guilty plea, the reality of Cohen's latest statements is that they are murky and unclear, and easily challenged by Cohen's previous testimony (some of which may might have been under oath before Congress, raising the specter of perjury charges). Cohen himself is a damaged witness of dubious credibility.

Unless more damaging material comes to light, either in regards to Cohen's allegations or to any other matter under scrutiny by the Mueller investigation, we still do not have clear evidence of any crime committed by Donald Trump.