Where’s the Justice?
A reflection on the sorry state of deliberation and the freedoms so associated.
September 27, 2018
I recall that moment when I became convinced that Brett Kavanaugh was lying during his confirmation hearing. It was when he turned on Sen. Amy Klobuchar following her question that perhaps his memory about the Ford incident was impaired due to his intoxication at the time, comparing his behavior to a symptom of her father’s incipient alcoholism, forgetfulness.
It was a ‘charm conceit,’ designed to get Kavanaugh to fess up to what had been alleged by Dr. Christine Blasey Ford.
Ironically, the exchange would have saved Kavanaugh a shred of decency, had he reckoned that in the light of “me too,” his decades earlier behavior could be viewed as sexual assault. America probably would have barely noticed, shrugged off the incident, confirmed his appointment and moved on.
Instead of acknowledging the ambiguity in his recall, Kavanaugh evaded Klobuchar’s invitation and turned on the Senator:
“Perhaps, Senator, you have a (alcoholic) problem.”
That’s when I was convinced, Kavanaugh was lying.
He was lying, however, not convincingly.
How can this be?
What Kavanaugh was doing was positioning; he was “positioning” the Senator’s observation so as to suppress conviction with doubt.
Kavanaugh was ‘counter-inviting’ Klobechar, inviting her to join him in his world of deceit, as if to say,
‘Oh, come on Senator, you’ve had a few tipples in the day, haven’t you? We’re not perfect at remembering every action in detail, are we not?’
Translation: We’ll never really know, will we.
For me that was the clincher: who claims the remedy to their miscreant behavior?
A liar.
August 22, 2022
Lawrence O’Donnell and Rachel Maddow reported during their evening news presentations (1) that a Justice of the DC Court of Appeals had decided that former Attorney General William Barr in his “memo” following the public release of the Mueller Report refused to take up the recommendation to further investigate whether criminal acts were performed based on erroneously claiming that the DOJ ‘found no criminal activity.’
That’s it. We’re done here, so move on?
Indulge me a ‘repeat’ for emphasis:
For me that was the clincher: who claims the remedy to their miscreant behavior? A liar.
Like Kavanaugh, Barr presumed a remedy to his obstructing the claims in the report of obstruction of justice: no one would read the report, engage in the observations thereof, if he decided there was no criminal activity.
The troubling aspect to this is what Maddow asserted earlier in her news hour: America moves on. (2) This is the sinister side of positioning, what others have labeled “disingenuous.” (3) By claiming the remedy, the miscreant invites the public, those who sway in the direction of probity, to accept the deceit.
Pepper scoffed at recent claims, made by conservative Justices on the U.S. Supreme Court, that the state legislatures are more suited than the judiciary to adjudicate the divisive issue of abortion. In Dobbs v. Jackson Women’s Health Organization, the case that overturned Roe, Brett Kavanaugh issued a concurring opinion in which he argued that the Court was merely restoring “the people’s authority to address the issue of abortion through the processes of democratic self-government.” Pepper said of Kavanaugh’s concurrence, “It’s so disingenuous — total gaslighting. Many statehouses no longer have representative democracy. Because they’ve been gerrymandered, they don’t reflect the will of the people.”
quote from, Jane Mayer, “State Legislatures are Torching Democracy,” The New Yorker, August 15
There is also the sinister purpose behind promulgating “The Big Lie:” it’s after life — to position elections won by Democrats as inherently flawed. In this scenario, a vote cast for a Democrat is suspect, challenged, disputed, discarded.
Trump and his allies have successively coupled election denial with what one political scientist has called the “nationalization of local politics.” (4)
Casting inexperienced and moneyed candidates for local office as fair election champions, the door swings open for more right-wing groups to influence public policy. One glove fits the other hand: election denial and voter suppression.
How does one vote “for democracy,” if democracy is being shredded at the same time? It’s like building institutions of self-government while they are being dismantled.
The ‘alternative’ con is ‘positioning:’ posing as ‘remedy,’ an ill-begotten outcome.
And then, ‘move on.’
September 2, 2022
To render a decision on whether there is the evidence of obstruction, a judge would preclude compartmentalizing the evidence in lieu of deliberating how the evidence gathering could proceed.
In other words, ‘proceed with caution, but not delay the process.’
Which is precisely the opposite of what Judge Aileen M. Cannon of the US Southern District Court did today in weighing the Trump lawyers’ request for a “Special Master,” to oversee evidence: delay instead of deliberate.
There is a difference. And it is an example of a justice choosing to strike a position in lieu of making a decision: a judicial version of “kicking the can down the road.” So, parties seeking resolution leave the court with no guidance on how to proceed, which brought them to court in the first place.
In the case of former Trump Attorney, Michael Cohen, at the request of a special investigation, he handed over documents and requested the review of a “third party,” (“Special Master”) to help in weighing which documents could be construed as “private,” eg., protected by attorney-client privilege, and which could not. (5)
In the case of Donald Trump, however, one, because some of the documents were not disclosed, and therefore de facto were excluded by defense, and two Trump’s lawyers did not request “third party” review, the so-called “Special Master” role was aborted.
Until today, when the Trump legal team tried to resurrect it.
Justice Cannon instructed that the elusive “Special Master” role remain as the defense requested, leaving the process of evidence gathering encumbered, exposed to ‘privilege.’
In granting Mr. Trump’s request, the judge, Aileen M. Cannon of the Southern District of Florida, gave the so-called special master expansive powers, with the authority to evaluate documents not only for those covered by attorney-client privilege, but also for those potentially protected by executive privilege. (6)
What the public heard from Judge Cannon’s office was an announcement of a non-decision, a press release, normally the product of a public relations professional — not a judge.
Sept. 4
On Sunday talk shows, ‘legal-eagle media tyoes’ compared Trump’s Mar-a-Lago FBI raid falsehood, to the “Big Lie,” proposing that America view the kerfuffle between Trump’s legal team and DOJ over “Special Master,” as a normal Trump delaying tactic.
It’s more than that.
It’s a demonstration of supporting your position by raising doubt about intent. Trump thinks he has privilege, and that the other side will challenge which documents, if any, can be excluded. Which ‘perfectly’ describes his intent of withholding some documents for review by a “third party.”
We’ll never know. Will we?
It’s also an attempt to raise doubt about deliberation, which, unchallenged, can fester over time. The Trump strategy is to appear aggrieved, force delay, sample America’s attention span and attempt to disinform.
It’s about Trump. It’s not about the law.
America moves on.
August 24, updated September 6
Notes
1-MSNBC, “Monday with Rachel Maddow,” and “Last Word with Lawrence O’Donnell”
2-Due to legal maneuvering in the indictment dismissal and subsequent pardon of former President Nixon and Vice President Agnew, the decision in the 1973 case brought by the Justice Department that no President can be tried for criminal behavior while serving office was never tested.. then or since. “America just moved on.” Rachel Maddow.
3-“disingenuous,” cite Mayer
4-Mayer, cite speaker
5-Charles Savage, “Special Masters and the Trump Records Investigation, Explained,” New York Times, September 6
https://www.nytimes.com/2022/09/06/us/politics/special-master-trump-cannon.html?smid=nytcore-ios-share&referringSource=articleShare
6=Charles Savage, ibid.
