Chris Hedges's Blog, page 337

Prosecutors Seek New Sentence in Laquan McDonald Case

CHICAGO — Prosecutors on Monday asked Illinois’ highest court to review the less than seven year prison sentence for the white Chicago police officer who fatally shot black teenager Laquan McDonald — an unusual move in what was already a rare case.

Illinois Attorney General Kwame Raoul and the special prosecutor who won a murder conviction against former officer Jason Van Dyke, Kane County State’s Attorney Joseph McMahon, said they believe Cook County Judge Vincent Gaughan improperly applied the law last month when he sentenced Van Dyke to six years and nine months in prison. Raoul and McMahon filed a request with the Illinois Supreme Court seeking an order that could ultimately result in the court forcing Gaughan to impose a longer sentence.

“This is the first step in asking the court to declare that the trial court improperly sentenced Jason Van Dyke for the murder and aggravated battery of Laquan McDonald and to order a new sentencing hearing,” Attorney General Kwame Raoul said at a news conference.

Monday’s court filing was the latest chapter in an ongoing saga that has included massive demonstrations, the firing of the police superintendent by the mayor and the ouster of the county’s top prosecutors by voters a few months later. Police video of the shooting that the city released in 2015 under court order showed Van Dyke firing 16 bullets into McDonald, some of them after the 17-year-old fell to the ground.

The sentence for Van Dyke was the first imposed on a Chicago police officer for an on-duty shooting in a half century. It followed a jury’s decision in October to convict the officer of second-degree murder and 16 counts of aggravated battery with a firearm.

The central issue in prosecutors’ petition is an Illinois law that allows a judge to sentence a person for only the most serious crime when he is convicted of multiple crimes for what amounts to a single act. Gaughan determined that second-degree murder was the more serious crime, although it carries a lighter sentence than aggravated battery. The murder charge calls for a sentence of between four and 20 years in prison, compared with six to 30 years in prison for aggravated battery.

Both Raoul and McMahon steered clear of saying whether they believed the sentence was too short. But McMahon had argued in court documents ahead of the January hearing that Gaughan should impose a sentence of at least 18 years in prison. Defense attorneys had sought probation.

One of Van Dyke’s attorneys, Darren O’Brien, said Monday that prosecutors’ contention that the judge should sentence Van Dyke on the aggravated battery charge because it is more serious than second-degree murder doesn’t make sense.

“It’s common sense that the lesser harm of getting shot would merge into the greater harm of getting killed,” O’Brien said.

At the January sentencing hearing, Van Dyke, Gaughan, too, had said it was “common sense” that second-degree murder was the more serious charge, calling it an “easy answer.”

Prosecutors in their legal filing pointed to a 2004 Illinois Supreme Court ruling in which a majority of justices concluded that aggravated battery is the more serious charge because it carries a stiffer penalty.

Prosecutors cannot directly appeal a sentence but are seeking what is called a writ of mandamus, which can result in an order from the Illinois Supreme Court telling a judge to adhere to the correct law.

“This is the only way for us to challenge the legality of a sentence,” McMahon told reporters.

Absent a new sentence, Van Dyke will likely serve only about three years, with credit for good behavior.

Van Dyke’s attorneys have notified the court of plans to appeal the conviction, but O’Brien declined to discuss what arguments they may make.

Raoul took office in January, and Van Dyke’s attorneys have decried the decision to review the sentence as a political stunt.

Raoul bristled at that suggestion.

“This is not a political question,” he said. “This is a question of law.”

America’s Egregious Economic Inequality in a Single Statistic

As egregious as America’s economic inequality may appear, the reality is somehow even worse. Those are the findings of the University of California, Berkeley’s Gabriel Zucman, whose latest research reveals that the .00025 percent now own more than the bottom 60 percent. To put that statistic in perspective, 400 individuals control more wealth than 150 million combined.

“After a period of remarkable stability in the 1950s and 1960s, the top 0.1% wealth share reached its low-water mark in the 1970s, and since the 1980s it has been gradually rising to close 20% in recent years,” Zucman writes. “U.S. wealth concentrations seem to have returned to levels last seen during the Roaring 20s.”

The numbers tell the story of our neoliberal age. Citing data from the World Inequality Database, whose executive committee includes Zucman and “Capital in the Twenty-First Century” author Thomas Piketty, among other economists, The Washington Post reports that those in the lower economic bracket mentioned above saw their share of the nation’s wealth dip from 5.7 to 2.1 percent between 1987 and 2014.

While the U.S. offers a dramatic data point, this ongoing redistribution upward is a worldwide phenomenon. According to an Oxfam International report published last month, the combined wealth of the world’s billionaires is growing $2.5 billion per day while the poorer half of the planet grows progressively poorer. Just 226 individuals are now worth as much as 3.8 billion ($1.4 trillion). At the same time, the total number of billionaires—2,208—has nearly doubled since the global financial crisis of 2008.

“More broadly, wealth serves two purposes,” Zucman notes in his introduction. “For everybody except the rich, its main function is to provide security. It enables individuals to smooth shocks (what is known as the precautionary saving motive) and to maintain consumption during retirement (the life-cycle saving motive). For the rich, wealth begets power.”

In recent months, there has been a concerted effort among the left wing of the Democratic Party to address the imbalance. Rep. Alexandria Ocasio-Cortez has floated the idea of a 70 percent marginal tax rate on income earned in excess of $10 million; Sen. Elizabeth Warren has proposed a wealth tax targeting the top .1 percent of American families; while Sen. Bernie Sanders has introduced the For the 99.8% Act, which would dramatically expand the scope of the estate tax, among other ameliorative measures. These proposals have proved enormously popular, with a spate of recent surveys indicating widespread support for soaking the rich.

Read Zucman’s working paper here.

Does Kamala Harris Deserve to Call Herself a Progressive?

“I think [marijuana] gives a lot of people joy and we need more joy in the world,” said Sen. Kamala Harris, D-Calif., on The Breakfast Club radio show Monday, explaining that she supports legalizing the drug. It was a fairly lighthearted interview with the 2020 presidential candidate, but as Addy Baird writes in ThinkProgress, Harris the presidential candidate’s views on marijuana are “basically unrecognizable compared with the Harris of just a few years ago.” In 2010, while running for attorney general of California, she came out against legalization, claiming it would, according New York Magazine, encourage “driving while high.”

Harris’s progressive shift since 2016 on this and a number of issues, including criminal justice and health care, has, as Briahna Joy Gray writes in The Guardian, “left some progressives skeptical,” especially since her change of heart is not, according to Gray, ideologically consistent.

Since announcing her presidential run, Harris told a CNN town hall that “I feel very strongly about this, we need to have ‘Medicare for All’, ” before backtracking the next day, saying she did not necessarily mean eliminating private insurance entirely.

“There’s a persistent tension,” Gray continues, “between the firmness with which Harris commits herself to her catchphrases and the shallowness of her political commitments (and her record).” Gray notes that Maya Harris, Kamala’s sister and policy adviser, also advised Hillary Clinton in 2016, and that year, Clinton said in a speech that a single payer health care system would “never, ever come to pass.”

Harris’s prosecutorial past however, more than her apparent changes of heart on health care and marijuana, are most concerning to critics. As Gray points out, she “[failed] to prosecute ‘foreclosure King’ turned Treasury secretary Steve Mnuchin, while supporting an anti-truancy initiative that criminalized noncompliant parents and threatened them with jail time …”

Baird, in ThinkProgress, makes similar observations, writing that Harris “has a complicated prosecutorial history with sex work, school truancy, and wrongful convictions.”

In 2015, when she was California’s attorney general, Harris fought against proposals to legalize sex work. More recently, she voted for SESTA (Stop Enabling Sex Traffickers Act), a bill that sex workers and advocates say unfairly labels sex work as sex trafficking, and, as  Samantha Cole wrote in Vice’s Motherboard, “sex workers and advocacy groups warned would have a disastrous impact on sex workers’ lives.”

Harris’s history of doubling down on what critics see as wrongful convictions is also giving progressives pause. Writing in a New York Times Op-Ed, law professor and attorney Lara Bazelon cites the case of George Gage, a man accused of sexually abusing his stepdaughter. Gage was convicted largely on the basis of the stepdaughter’s testimony, even though, as Bazelon points out, the judge later found “that the prosecutor had unlawfully held back potentially exculpatory evidence, including medical reports indicating that the stepdaughter had been repeatedly untruthful with law enforcement.”

The stepdaughter’s mother, Bazelon writes, called her a “pathological liar.”

When the  case reached the United States Court of Appeals for the 9th Circuit in San Francisco, Harris’s office defended the conviction on the grounds that Gage didn’t correctly raise the issue, while forced to act as his own lawyer. The appellate judges sent the case to mediation, which, according to Bazelon, was “a clear signal for Ms. Harris to dismiss the case.” She didn’t, and Gage remains in jail.

Gray believes Harris is getting better at discussing economic inequality, citing recent speeches in which Harris “routinely hits populist themes, referencing the fact that 40% of Americans are $500 away from an economic emergency, and arguing ‘they’re trying to divide us. They’re trying to have us point fingers at each other’. ”

The speeches, however, may not be enough to convince critics like Gray that Harris’s latest talking points are a genuine change of heart and evolution in thinking, rather than an insincere attempt to court a leftist vote. For now, Gray concludes, “speaking truth is an important first step. But it’s not a substitute for having the courage and vision to do something about it.”

Trump Aims to Turn Border Debate His Way With El Paso Rally

WASHINGTON — President Donald Trump is trying to turn the debate over a wall at the U.S.-Mexico border back to his political advantage as his signature pledge to American voters threatens to become a model of unfulfilled promises.

Trump will hold his first campaign rally since November’s midterm elections in El Paso, Texas, on Monday as he faces a defining week for his push on the wall — and for his presidency and his 2020 prospects. Weakened by the disastrous government shutdown and facing a fresh deadline Friday, Trump is trying to convince people that that he’ll continue to push to build his long-promised wall, even though there’s no way it would be anywhere near complete by the time voters have to decide whether to give him another term.

A bipartisan group of lawmakers was negotiating ahead of Friday’s deadline, but on Sunday people familiar with the talks said the mood among the bargainers had grown sour amid an impasse over migrant detention policies. They spoke on condition of anonymity to discuss private talks.

Acting White House chief of staff Mick Mulvaney said during news show appearances Sunday that another shutdown remained on the table, although he also said Trump probably would be willing to compromise over how much of the $5.7 billion for wall construction he’s demanded would be allocated. “Someplace in the middle,” Mulvaney said on NBC’s “Meet the Press.”

Even Trump’s full demand is a fraction of the money he needs to complete the barrier he wants. His vision for the wall already has been substantially scaled down since the 2016 campaign, when it was to be built of concrete and span the length of the border and be paid for by Mexico. Now, he’s looking to build “steel slats” along much of the 1,900-mile stretch, relying on natural barriers for the rest. The amount of federal funding he’s seeking would pay for fewer than 200 miles of new barrier.

The president, who feared a backlash from his most loyal supporters last year if he didn’t use the last gasp of unified Republican control in Washington to fight for the wall, isn’t expected to provoke another standoff with Congress. West Wing aides have acknowledged there is insufficient support among Republicans to sustain another shutdown fight.

Still, Trump has publicly dismissed the work of congressional negotiators as a “waste of time” and on Sunday said he thinks Democrats want a shutdown to turn attention from the economy and other positive news for his administration. Trump also continued to threaten to flex his executive powers by trying to unilaterally tap into existing federal dollars to build the wall through a declaration of a national emergency or another presidential action.

Any independent moves would face almost immediate legal challenges that even Trump’s aides fear will be successful. Still, they reckon it will show Trump as determined to fight for the wall, and figure that voters will blame the courts and Congress rather the president.

For some supporters, that’s not enough. California-based conservative leader Mark Meckler, who helped found the tea party movement, said Trump’s base voters are done waiting for him to deliver on the wall. He warned that the president risks alienating his strongest supporters unless he “goes to war” with Democrats.

“A political crusade is not enough,” Meckler said. “Politicians say stuff. He’s either doing it or he’s not doing it.”

The border debate has also proven to be a drag on the president’s support among Republican lawmakers, many of whom don’t share the president’s zeal for the wall. Last month Trump was forced to surrender the shutdown fight after senators in his party broke ranks amid the increasingly painful impacts of the stoppage. It coincided with mounting intraparty disagreements over the president’s policies for Afghanistan and Syria that led to a striking rebuke of them earlier this month led by Senate Majority Leader Mitch McConnell.

For all of that, though, Trump advisers on the campaign and inside the White House insist, that fulfilled or not, the promise of a wall is a winning issue for Trump. The president has already sought to rewrite the “Build the Wall” chants that were a staple of his 2016 campaign to “Finish the Wall,” and will use his rally in Texas to go in-depth on the issue, aides said.

Highlighting their differing view of the electorate, Democrats are likewise adamant that Trump’s struggles for the wall are a political boon to them, believing their 2018 midterm election gains in the House proved that voters want to block Trump’s agenda.

An AP-NORC poll conducted during last month’s shutdown found that more Americans opposed than favored building a wall along the Mexican border, 49 percent to 36 percent. Eight in 10 Democrats opposed building the wall and only about 1 in 10 were in favor. Nearly 8 in 10 Republicans favored the wall, while only about 1 in 10 were opposed.

A Trump campaign adviser said the Trump team sees the El Paso rally as less about winning over voters ahead of the 2020 election and more an opportunity to reshape the debate around the wall. The campaign views the rally, which is to take place just a few hundred yards from El Paso’s border fence, as an opportunity for Trump to make the case that border barriers work, said the adviser, who was not authorized to discuss campaign strategy by name and requested anonymity.

Trump has repeatedly exaggerated the impact of El Paso’s fencing on the city’s crime rate, as well as statistics about crime committed by people who have entered the U.S. illegally.

El Paso is home to one potential Democratic challenger to Trump, former Rep. Beto O’Rourke, who unsuccessfully challenged Sen. Ted Cruz in 2018 and maintains an army of small-dollar donors and a large social media following. The campaign adviser, who spoke on condition of anonymity to discuss internal thinking, insisted the venue had nothing to do with O’Rourke.

But there was nothing subtle about O’Rourke’s response: He’ll be joining a march though his hometown to protest a border wall at the same time as Trump’s rally.

___

Associated Press writers Jill Colvin and Catherine Lucey contributed to this report.

Scientists Issue Dire Warning About Collapsing Insect Populations

Presented in exclusive reporting by the Guardian’s environment editor Damian Carrington, the findings of the new analysis, published in the journal Biological Conservation, found that industrial agricultural techniques—“particularly the heavy use of pesticides”—as well as climate change and urbanization are the key drivers behind the extinction-level decline of insect populations that could herald a “catastrophic collapse of nature’s ecosystems” if not addressed.

“If insect species losses cannot be halted, this will have catastrophic consequences for both the planet’s ecosystems and for the survival of mankind,” report co-author Francisco Sánchez-Bayo, at the University of Sydney, Australia, told the Guardian. Sánchez-Bayo wrote the scholarly analysis with Kris Wyckhuys at the China Academy of Agricultural Sciences in Beijing.

Calling the current annual global insect decline rate of 2.5 percent over the last three decades a “shocking” number, Sánchez-Bayo characterized it as “very rapid” for insects worldwide. If that continues, he warned: “In 10 years you will have a quarter less, in 50 years only half left and in 100 years you will have none.”

Isn’t this a bit alarmist? Anticipating that concern, Sánchez-Bayo said the language of the report was intended “to really wake people up,” but that’s because the findings are so worrying.

Not involved with the study, Professor Dave Goulson at the University of Sussex in the UK, agreed. “It should be of huge concern to all of us,” Goulson told the Guardian, “for insects are at the heart of every food web, they pollinate the large majority of plant species, keep the soil healthy, recycle nutrients, control pests, and much more. Love them or loathe them, we humans cannot survive without insects.”

As Carrington reports:

The planet is at the start of a sixth mass extinction in its history, with huge losses already reported in larger animals that are easier to study. But insects are by far the most varied and abundant animals, outweighing humanity by 17 times. They are “essential” for the proper functioning of all ecosystems, the researchers say, as food for other creatures, pollinators and recyclers of nutrients.

Insect population collapses have recently been reported in Germany and Puerto Rico, but the review strongly indicates the crisis is global. The researchers set out their conclusions in unusually forceful terms for a peer-reviewed scientific paper: “The [insect] trends confirm that the sixth major extinction event is profoundly impacting [on] life forms on our planet.”

Doug Parr, the chief scientist for Greenpeace U.K., responded to the reporting by saying these are the climate-related developments that concern him most of all.

“I spend so many hours a week concerned climate change,” he said in a tweet linking to the story. “But this is the stuff that worries me most. We don’t know what we’re doing, not trying to stop it, [and] with big consequences we don’t really understand.”

According to Sánchez-Bayo, the “main cause of the decline is agricultural intensification,” and he put special emphasis on new classes of pesticides and herbicides that have been brought to market over the last twenty years alongside a global surge in industrialized monocultures. “That means the elimination of all trees and shrubs that normally surround the fields, so there are plain, bare fields that are treated with synthetic fertilizers and pesticides,” he said.

As campaigners worldwide intensify their collective demand that elected leaders, governments, communities, and businesses do significantly more to address the crisis of a warming planet and halt the destruction of the Earth’s natural systems, journalist David Sirota contrasted evidence of species loss—and the threat it contains—with those voices who say something like a Green New Deal would somehow be “too expensive” or disruptive to the status quo:

Very Serious Pundits & Political Experts: The #GreenNewDeal is too expensive

Science: https://t.co/UO5h4761h2

— David Sirota (@davidsirota) February 10, 2019

Western Media Are Parroting Trump’s Venezuela Propaganda

The Trump administration’s now completely overt effort to overthrow Venezuelan President Nicolás Maduro had a very successful public relations effort this week, as major Western media outlets uniformly echoed its simplistic, pre-packaged claim that the Venezuelan government was heartlessly withholding foreign aid:

Tensions Rise as Venezuela Blocks Border Bridge in Standoff Over Aid (CNN, 2/7/19)
Maduro Blocks Critical Aid Sent to Venezuela (CNN, 2/7/19)
Aid Arrives at Venezuela Border as US Demands Maduro Let It In (ABC News, 2/7/19)
Venezuela Crisis: Pompeo Demands Aid Corridor Opened (BBC, 2/7/19)
The US Says Maduro Is Blocking Aid to Starving People. The Venezuelan Says His People Aren’t Beggars. (Washington Post, 2/8/19)
Humanitarian Aid Arrives for Venezuela — But Maduro Blocks It (NPR, 2/8/19)

All of the above articles—and scores more like it—repeated the same script: Maduro was blocking aid from the US “out of refusal to relinquish power,” preferring to starve “his own people” rather than feed them. It’s a simple case of good and evil—of a tyrannical, paranoid dictator not letting in aid to feed a starving population.

Except three pieces of key context are missing. Context that, when presented to a neutral observer, would severely undermine the cartoonish narrative being advanced by US media.

Both the Red Cross and UN warned the US not to engage in this aid PR stunt.
The bridge in question is a visual metaphor contrived by the Trump administration of little practical relevance.
The person in charge of US operations in Venezuela has a history of using aid as a cover to deliver weapons to right-wing mercenaries.

(1) Not only has the international aid community not asked for the “aid,” earlier this week, both the International Red Cross and United Nations warned the US to explicitly not engage in these types of PR stunts. As Washington Post contributor Vincent Bevins pointed out, the transparent cynicism of these efforts was preemptively warned about by the groups actually charged with keeping starving people fed:

Red Cross Warns US About Risks of Sending Aid to Venezuela (PBS NewsHour, 2/1/19):

The International Committee of the Red Cross has warned the United States about the risks of delivering humanitarian aid to Venezuela without the approval of security forces loyal to President Nicolas Maduro.

***

UN Warns Against Politicizing Humanitarian Aid in Venezuela(Reuters, 2/6/19):

UNITED NATIONS — The United Nations warned on Wednesday against using aid as a pawn in Venezuela after the United States sent food and medicine to the country’s border and accused President Nicolas Maduro of blocking its delivery with trucks and shipping containers.

Indeed, as Bevins also noted, the Red Cross has long been working with local authorities inside Venezuela to deliver relief, and just last week doubled its budget to do so. We have ample evidence the Maduro government is more than willing to work with international aid when it’s offered in good faith, not when it’s a thinly veiled mechanism to spur civil war and contrive PR victories for those seeking to overthrow the government. It’s not just Maduro—as the Western media are presenting it—who opposes the US aid convoy; it’s the UN and Red Cross. Why do none of the above reports note this rather key piece of information, instead giving the reader the impression it’s only the stance of a sadistic, power-hungry madman?

(2) Despite dozens of media outlets giving the impression (and sometimes explicitly saying) that the Venezuelan government shut down an otherwise functioning pathway into the country, the bridge in question hasn’t been open for years.

It’s true the Venezuelan government appears to have placed an oil tanker and cargo containers on the bridge to prevent incursion from the Colombian side, but the other barriers, as writer and software developer Jason Emery noted, have been in place since at least 2016. According to La Opinion (2/5/16), after its initial construction in 2015, the bridge has never been open to traffic. How can Maduro, as the BBC suggested, “reopen” a bridge that was never open?

The reality is BBC and other Western media were just going along with the narrative pushed by Sen. Marco Rubio and Trump Secretary of State Mike Pompeo, not bothering to check if their primary visual narrative was based on a bad faith, context-free PR stunt.

This point is a relatively superficial one, but in a long term PR battle to win over Western liberals for further military escalation, the superficial matters a lot. Rubio and the Trump administration cooked up a gimmicky visual metaphor, and almost every outlet uncritically passed it along, often making factually inaccurate assumptions along the way—assumptions the Trump State Department and CIA coordinating the effort knew very well they would make.

(3) The Venezuelan government has an entirely rational reason to suspect the US would use humanitarian aid as a cover to smuggle in weapons to foment armed conflict: The person running quarterback for Trump on the current Venezuela operation, Elliot Abrams, literally did just that 30 years ago.

From the first two paragraphs (emphasis added) of a 1987 AP/New York Times article on Elliott Abrams, “Abrams Denies Wrongdoing in Shipping Arms to Contras” (8/17/87—h/t Kevin Gosztola):

Assistant Secretary of State Elliott Abrams has defended his role in authorizing the shipment of weapons on a humanitarian aid flight to Nicaraguan rebels, saying the operation was ”strictly by the book.”

Mr. Abrams spoke at a news conference Saturday in response to statements by Robert Duemling, former head of the State Department’s Nicaraguan humanitarian assistance office, who said he had twice ordered planes to shuttle weapons for the Contras on aid planes at Mr. Abrams’ direction in early 1986.

It’s literally the same person. It’s not that Maduro is vaguely paranoid the US, in general, would dust off its 1980s’ Contra-backing Cold War playbook, or some unspecified assumption about a higher-up or two at State. It’s literally the exact same person in charge of the operation who we know—with 100 percent certainty, because he admitted to it—has a history of using aid convoys as a cover to smuggle in arms to right-wing militias.

It’s all playing out right now, in real time. The same actors, the same tricks, the same patently disingenuous concern for the starving poor. And the US media is stripping it of all this essential context, presenting these radical regime-change operators as bleeding heart humanitarians.

The same US media outlets that have expressly fundraised and run ad campaigns on their image as anti-Trump truth-tellers have mysteriously taken at face value everything the Trump White House and its neoconservative allies have said in their campaign to overthrow the government of Venezuela. The self-aggrandizing “factchecking” brigade that emerged to confront the Trump administration is suddenly nonexistent as it rolls out a transparent, cynical PR strategy to delegitimize a Latin American government it’s trying to overthrow.

Should ‘Dirty Trickster’ Roger Stone Be Silenced?

Roger Stone, who has been charged with lying to Congress, obstruction of justice and witness tampering in the ongoing investigation of Russia’s ties to Donald Trump’s presidential campaign, will go on trial later this year in Washington, D.C. Any day now, federal District Court Judge Amy Berman Jackson, who is presiding over Stone’s case, will rule on special counsel Robert Mueller’s request that she place a gag order on Stone and his attorneys. Such a move would prohibit Stone and his counsel from making public statements about the case outside of court.

Like many federal judges, Jackson is a former prosecutor, having served as an Assistant United States Attorney for the District of Columbia from 1980-1986. Barack Obama appointed her to the bench in 2011.

Jackson is no stranger to gag orders. In November 2017, she placed gag orders on both Paul Manafort and Richard Gates in the case Mueller filed against them in the nation’s capital.

Although Manafort and Gates did not contest their gag orders (Manafort was subsequently accused of violating the order), Stone has declared he will resist any attempt to issue one in his case.

Last week, the Trump campaign adviser’s lawyers filed a legal brief setting forth their objections to a possible gag order. In a nutshell, the attorneys say that while they, as officers of the court, are personally prepared to comply with Jackson’s ultimate ruling, any order gagging their client would run afoul of the First Amendment.

I am no admirer of Roger Stone. To the contrary, I think he’s among the slimiest of slime-balls for his self-described history as a “dirty trickster” during a decades-long career as a Republican consultant and campaign operative.

I am, however, an admirer and defender of civil liberties. All Americans, including slime-balls, are entitled to the full panoply of liberties enshrined in the U.S. Constitution. In this respect, if in few others, Stone and his attorneys are correct: a gag order on Stone is both unnecessary and would likely be unconstitutional.

As Stone’s lawyers elaborate in their brief, at this stage of the proceedings, gagging Stone would amount to a “prior restraint” (a proactive, before-the-fact prohibition) on free speech. The Supreme Court, they note, has recognized that prior restraints on speech “are the most serious and least tolerable infringements on First Amendment rights.”

In a hearing held on Feb. 1, Judge Jackson recognized Stone’s “legitimate interest in exercising his First Amendment rights. But,” she continued, Stone also “has an interest in exercising his [Sixth Amendment] constitutional right to have a trial and to put the government to its proof. And it’s my responsibility to ensure that he has a fair trial.”

Jackson reserved passing judgment on the issue, pending briefing from Mueller’s office and Stone’s lawyers. The briefs have now been filed.

The tensions between First Amendment free-speech values and Sixth Amendment fair-trial rights make gag orders inherently problematic and controversial.

To understand those tensions, it’s necessary to recall that, historically, gag orders have been imposed both on trial participants—particularly the parties to a case and the lawyers who represent them—and the press. The law, however, has not treated treat both types of orders the same way.

Gag orders on the press have long been disfavored. In the landmark 1976 case of Nebraska Press Association v. Stuart, the Supreme Court devised a three-part test to measure the constitutionality of media gag orders. Before gagging the media in its coverage of legal proceedings, a trial judge must ask (a) whether publicity would undermine the prospects for a fair trial before an impartial jury; (b) whether a gag order is the least restrictive means to ensuring a fair trial; and (c) whether a gag order would actually be effective in quelling publicity.

Because it is difficult to meet all three prongs of the Nebraska test, media gag orders are often overturned on appeal and thus, in practice, have become increasingly rare.

As a result, trial judges concerned with potentially explosive reporting about ongoing litigation have resorted with greater frequency to placing gag orders on trial participants. Unfortunately, the Supreme Court has yet to rule on whether the Nebraska test applies to trial participants in addition to the media. Some federal appellate and state courts have held that the same test, or something close to it, should apply across the board. Others have treated trial-participant orders more leniently.

In a 2001 analysis, the Reporters Committee for Freedom of the Press charged that “Gag orders on trial participants have become a significant threat to the First Amendment protection for the press.” In the committee’s view, such orders not only curb the vital work of the media, but they also violate the public’s First Amendment right to receive accurate information about what transpires in our court system, which, after all, is supposed to be a public forum.

Were the Nebraska test applied to trial-participant gag orders, as University of California, Berkeley Law School Dean Erwin Chemerinsky has advocated, it’s difficult to see one imposed on Stone passing constitutional muster.

For starters, Stone doesn’t want to curb publicity about his case. He is a media hog and wants to be part of the dialogue. In TV interviews following his indictment, he argued that a gag order would restrict both his ability to work as a political commentator and to raise money from supporters to help pay for his legal defense.

Judge Jackson also has alternatives to gagging Stone to ensure that both he and the prosecution receive fair trials, including conducting extensive questioning of prospective jurors during voir-dire, and issuing stringent admonitions to jurors after they are seated to base their verdict solely on the evidence presented in court.

Most important of all, silencing Stone will in no way limit media coverage of the case. With or without a gag order, the Republican consultant’s trial promises to be the biggest courtroom happening since the prosecution of O.J. Simpson.

This isn’t to say that it’s wise for Stone to speak out about his case. Mueller and his colleagues no doubt will carefully parse any public statements he makes for any and all incriminating inconsistencies. Given Stone’s penchant for hyperbole and outright prevarication, he would be well-advised to keep his mouth shut. Otherwise, he could wind up making Mueller’s job as a prosecutor easier.

But that’s not a decision for me or anyone else to make. In a criminal justice system in which every accused is supposed to be protected by the Constitution and in which everyone is presumed innocent until proven guilty beyond a reasonable doubt, the decision should be Stone’s alone.

Thom Hartmann: The Electoral College Has to Go

Given how the Electoral College hasn’t protected us from getting a president beholden to a (or multiple) foreign power(s) as president, it’s time to do away with it.

Most people have a pretty limited understanding of the Electoral College, but they know that it works against the democratic notion of the public electing its chief executive. There are organizations and a smattering of political figures who say as much. A recent poll indicates this, too.

What is not as well understood is the history of why it was chosen as the way to select a president.

It’s often said that the Electoral College was brought into being to perpetuate or protect the institution of slavery, and, indeed, during the first half-century of America, it gave the slave states several presidents who wouldn’t have been otherwise elected.

This is because there’s one elector in the College for every member of the House and Senate (and three for the District of Columbia). When the three-fifths compromise was in effect (until just after the Civil War), slave states had more members in the House of Representatives than the size of their voting public “deserved.”

This is why when Madison proposed the Electoral College, the Framers seized on it as a compromise/solution after weeks of drawn-out and often angry debate on how to select a president.

But, according to the Framers of the Constitution themselves, the real reason for the Electoral College was to prevent a foreign power from placing their stooge in the White House.

Today we’re horrified by the idea that Donald Trump may actually be putting first the interests of foreign governments, and that money and other efforts from multiple foreign entities may have helped him get elected.

It’s shocking, something we never even really took seriously when, for example, the movie “Manchurian Candidate” came out. What a cute idea for a movie, we thought; that could never happen here.

But this was actually a big deal for the founding generation. One of the first questions of any candidate for president during that era was, “Is he beholden in any way to any other government?”

At the time of the Declaration of Independence, it’s estimated that nearly two-thirds of all citizens of the American colonies favored remaining a British colony (Jimmy Carter’s novel The Hornet’s Nest is a great resource); there were spies and British loyalists everywhere, and Spain had staked out their claim to the region around Florida while the French were colonizing what is now Canada and Louisiana. Foreign powers had us boxed in.

In 1775, the year the Revolutionary War unofficially started, virtually all of the colonists had familial, friendship or business acquaintances with people whose loyalty was suspect or who were openly opposed to American independence.

It was rumored that Ben Franklin was working as a spy for British intelligence (and, it turns out, evidence shows he was, only against France when he lived in Paris). Federalists, in particular, were wary of Franklin’s “internationalist” sentiments.

Jefferson was living in France when the Constitution was being written, and his political enemies were, even then (it got much louder around the election of 1800), whispering that he had, at best, mixed loyalties. In response, he felt the need to protest to Elbridge Gerry that, “The first object of my heart is my own country. In that is embarked my family, my fortune, and my own existence.”

When John Adams famously defended British soldiers who, during an anti-British riot on March 5, 1770, shot and killed Crispus Attucks and four others, he was widely condemned for being too pro-British, an issue that recurred in 1798 when, as president, Adams pushed the Alien and Sedition laws through Congress over Vice President Thomas Jefferson’s loud objections. British Spy Gilbert Barkley wrote to his spymasters in London that Quakers and many other Americans considered Adams an enemy to his country (Geoffrey Seed, A British Spy in Philadelphia, PMHB, 85:21–22 [Jan. 1961]).

When Adams blew up the XYZ Affair and nearly went to war with France that year, it was rumored among his political opponents that he was only doing it to solidify his “manly” and “patriotic” credentials. Historian and author John Ferling in his book A Leap in the Dark: The Struggle to Create the American Republic notes that Adams’ anti-British rhetoric worked at changing the perception of him: “By mid-1798 he was proclaimed for his ‘manly fortitude,’ ‘manly spirited’ actions, and ‘manly independence.’”

And after the Revolutionary War, the nation was abuzz about one of that war’s most decorated soldiers, Benedict Arnold, once considered a shoo-in for high elected office, selling out to the British in exchange for money and a title.

So it fell to a fatherless man born in Bermuda to explain to Americans that the main purpose of the Electoral College was to make sure that no agent of a foreign government would ever become president.

Back then, America was so spread out it would be difficult for most citizen/voters to get to know a presidential candidate well enough to spot a spy or traitor, Alexander Hamilton explained in Federalist 68. Therefore, the electors—having no other governmental duty, obligation, or responsibility—would be sure to catch one if it was tried.

“The most deadly adversaries” of America, Hamilton wrote, would probably “make their approaches [to seizing control of the USA] from more than one quarter, chiefly from the desire in foreign powers to gain an improper ascendant in our councils.”

But influencing public opinion or owning a senator was nothing compared to having their man in the White House. As Hamilton wrote, “How could they better gratify this, than by raising a creature of their own to the chief magistracy [presidency] of the Union?”

But, Hamilton wrote, the Framers of the Constitution “have guarded against all danger of this sort, with the most provident and judicious attention.”

The system they set up to protect the White House from being occupied by an agent of a foreign government was straightforward, Hamilton bragged. The choice of president would not “depend on any preexisting bodies of men, who might be tampered with beforehand to prostitute their votes.”

Instead, the Electoral College would be made up of “persons [selected] for the temporary and sole purpose of making the appointment.”

The electors would be apolitical because it would be illegal for a senator or House member to become one, Hamilton wrote:

And they have excluded from eligibility to this trust, all those who from situation might be suspected of too great devotion to the President in office. No senator, representative, or other person holding a place of trust or profit under the United States, can be of the numbers of the electors.

This, Hamilton was certain, would eliminate “any sinister bias.”

Rather than average but uninformed voters, and excluding members of Congress who may be subject to bribery or foreign influences, the electors would select a man for president who was brave of heart and pure of soul.

“The process of election [by the electoral college] affords a moral certainty,” Hamilton wrote, “that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications.”

Indeed, while a knave or rogue or traitor may fool enough people to even ascend to the office of mayor of a major city or governor of a state, the Electoral College would ferret out such a traitor.

Hamilton wrote, “Talents for low intrigue, and the little arts of popularity, may alone suffice to elevate a man to the first honors in a single State; but it will require other talents, and a different kind of merit, to establish him in the esteem and confidence” of the men in the Electoral College who would select him as president “of the whole Union…”

Hamilton’s pride in the system that he himself had helped build was hard for him to suppress.

He wrote, “It will not be too strong to say, that there will be a constant probability of seeing the station filled by characters preeminent for ability and virtue.”

Unfortunately, things haven’t worked out that way. Because of the three-fifths compromise that gave more electors to the slave states than their voting population would indicate, the Electoral College handed the White House to four Virginia slaveholders among our first five presidents. Since that compromise has been eliminated, it continues to wreak mischief in putting George W. Bush and Donald Trump into office.

Hamilton never envisioned a day when a man so entangled in financial affairs with foreign governments as is Donald Trump could even be seriously considered, because, in his mind, the electors would carefully investigate the candidate. That hasn’t happened in over a century, so, by his standards, the electors totally failed in their job in the 2016 election.

The Electoral College was a compromise designed to keep the president above political considerations, and sold to the public as a way to prevent an agent (witting or unwitting) of a foreign power from becoming president. It has failed on both counts.

Through the arc of time since her founding, America has constantly—albeit in fits and starts—expanded democracy. From expanding the vote to include racial minorities and women, to amending the Constitution to allow for citizens to vote for U.S. senators rather than having them appointed by often-corrupted state legislatures, average citizens of all races and genders have been brought into the decisions around who will lead us.

But in the past two decades, the Electoral College has brought us two presidents (George W. Bush, who lost the popular vote by 500,000 and Trump, who lost by 3,000,000) who were rejected by a majority of Americans. This is fundamentally undemocratic.

It’s time to take another step forward in fine-tuning our republic and abolish the Electoral College.

This article was produced by the Independent Media Institute.

The End of the Age of Billionaires

Every month or so there’s a stunning new headline statistic about just how stark our economic divide has become.

Understanding that this divide exists is a good start. Appreciating that a deeply unfair and unequal economy is problematic is even better. Actually doing something about it — that’s the best.

As 2020 presidential hopefuls start trying to prove their progressive bona fides, serious policies to take on economic inequality are at the forefront. These ideas don’t stand much of a shot of becoming law in the Trump era, of course. But if the balance of power shifts, so too does the potential for these paradigm-shifting new programs.

Let’s take a closer look at the problems they’ll have to address.

A new billionaire is minted every two days, according to a recent Oxfam study. As a result, the top 0.1 percent owns a greater share of the nation’s wealth than the bottom 90 percent combined.

The richest dynastic families in the United States have seen their wealth expand at a dizzying pace. The three wealthiest families — the Waltons, the Kochs, and the Mars — increased their wealth by nearly 6,000 percent since 1983.

In other words, the rich in the United States have accumulated a metric crap ton of money. And what are they doing with this immense wealth and power?

Dan Snyder (#368 on the Forbes 400) just bought the world’s first mega-yacht, with an IMAX theater on it, for $100 million. Hedge fund billionaire Kenneth Griffin (#45) just broke the record for the highest price ever paid for a house — $238 million — for an apartment in Manhattan’s “Billionaires’ Row.”

Add in a few private jets, a couple of absurd presidential runs, and those Trump tax cuts, and you get a pretty accurate depiction of the priorities of billionaire spending.

Meanwhile, the rest of the country isn’t shopping for yachts and jets. Most families are forced to work longer hours for lower wages.

Despite massive increases in growth and productivity, the median family saw their wealth go down over the past three decades, not up. The proportion of families with zero or negative wealth (meaning they owe more than they own) jumped from 1 in 6 to 1 in 5.

Relatedly, our roads and bridges our crumbling and our public schools are desperately underfunded.

It doesn’t take an economist to tell you this isn’t sustainable. So what about those policies to do something about it?

Senator Bernie Sanders has proposed a robust addition to the federal estate tax. Billionaires under his plan would pay a top rate of 77 percent on whatever they bequeath to their heirs over $1 billion. (Far from a new idea, Sanders is merely proposing reinstating the top rate in place from 1941 to 1976.)

Senator Elizabeth Warren, not to be outdone, has proposed a direct tax on concentrated wealth targeting modern day wealth hoarders. Her plan would impose a progressive annual tax starting at 2 percent on assets over $50 million and rising to 3 percent on assets over $1 billion.

And at least one member of Congress who isn’t running for president, Rep. Alexandria Ocasio-Cortez, has gotten in on the action. She’s proposed raising the top marginal tax rate to 70 percent (only on income over $10 million, contrary to what you might hear on Fox News).

Three bold ideas to stem our skyrocketing economic inequality, three ways to tax the ultra-rich, three policies unlikely to become law given the current administration.

Yet these ideas are more than mere platitudes. Poll after poll shows big majorities of Americans ready to see the rich pay their fair share — and worried about the economic power consolidating in the upper echelons.

When the political moment arrives, we won’t have to wonder what’s coming.

Negotiations Hit Snag as Shutdown Deadline Approaches

WASHINGTON — As the White House refused to rule out the possibility that the federal government may shut down again, negotiators clashed over whether to limit the number of migrants authorities can detain, creating a new hurdle for a border security compromise Congress can accept.

With a Friday deadline approaching, the two sides remained separated over how much to spend on President Donald Trump’s promised border wall. But rising to the fore on Sunday was a related dispute over curbing Immigration and Customs Enforcement, or ICE, the federal agency that Republicans see as an emblem of tough immigration policies and Democrats accuse of often going too far.

The fight over ICE detentions goes to the core of each party’s view on immigration. Republicans favor rigid enforcement of immigration laws and have little interest in easing them if Democrats refuse to fund the Mexican border wall. Democrats despise the proposed wall and, in return for border security funds, want to curb what they see as unnecessarily harsh enforcement by ICE.

People involved in the talks say Democrats have proposed limiting the number of immigrants here illegally who are caught inside the U.S. — not at the border — that the agency can detain. Republicans say they don’t want that cap to apply to immigrants caught committing crimes, but Democrats do.

Democrats say they proposed their cap to force ICE to concentrate its internal enforcement efforts on dangerous immigrants, not those who lack legal authority to be in the country but are productive and otherwise pose no threat. Democrats have proposed reducing the current number of beds ICE uses to detain immigrants here illegally from 40,520 to 35,520.

But within that limit, they’ve also proposed limiting to 16,500 the number for immigrants here illegally caught within the U.S., including criminals. Republicans want no caps on the number of immigrants who’ve committed crimes who can be held by ICE.

Trump used the dispute to cast Democrats as soft on criminals.

“I don’t think the Dems on the Border Committee are being allowed by their leaders to make a deal. They are offering very little money for the desperately needed Border Wall & now, out of the blue, want a cap on convicted violent felons to be held in detention!” Trump tweeted Sunday.

Acting White House chief of staff Mick Mulvaney, in appearances on NBC’s “Meet the Press” and “Fox News Sunday,” said “you absolutely cannot” eliminate the possibility of another shutdown if a deal is not reached over the wall and other border matters. The White House had asked for $5.7 billion, a figure rejected by the Democratic-controlled House, and the mood among bargainers has soured, according to people familiar with the negotiations not authorized to speak publicly about private talks.

“You cannot take a shutdown off the table, and you cannot take $5.7 (billion) off the table,” Mulvaney told NBC, “but if you end up someplace in the middle, yeah, then what you probably see is the president say, ‘Yeah, OK, and I’ll go find the money someplace else.'”

A congressional deal seemed to stall even after Mulvaney convened a bipartisan group of lawmakers at Camp David, the presidential retreat in northern Maryland. While the two sides appeared close to clinching a deal late last week, significant gaps remain and momentum appears to have slowed. Though congressional Democratic aides asserted that the dispute had caused the talks to break off, it was initially unclear how damaging the rift was. Both sides are eager to resolve the long-running battle and avert a fresh closure of dozens of federal agencies that would begin next weekend if Congress doesn’t act by Friday.

“I think talks are stalled right now,” Sen. Richard Shelby, R-Ala., said on “Fox News Sunday.” ”I’m not confident we’re going to get there.”

Sen. Jon Tester, D-Mont., who appeared on the same program, agreed: “We are not to the point where we can announce a deal.”

But Mulvaney did signal that the White House would prefer not to have a repeat of the last shutdown, which stretched more than a month, left more than 800,000 government workers without paychecks, forced a postponement of the State of the Union address and sent Trump’s poll numbers tumbling. As support in his own party began to splinter, Trump surrendered after the shutdown hit 35 days without getting money for the wall.

The president’s supporters have suggested that Trump could use executive powers to divert money from the federal budget for wall construction, though it was unclear if he would face challenges in Congress or the courts. One provision of the law lets the Defense Department provide support for counterdrug activities.

But declaring a national emergency remained an option, Mulvaney said, even though many in the administration have cooled on the prospect. A number of powerful Republicans, including Senate Majority Leader Mitch McConnell, R-Ky., have also warned against the move, believing it usurps power from Congress and could set a precedent for a future Democratic president to declare an emergency for a liberal political cause.

As most budget disputes go, differences over hundreds of millions of dollars are usually imperceptible and easily solved. But this battle more than most is driven by political symbolism — whether Trump will be able to claim he delivered on his long-running pledge to “build the wall” or newly empowered congressional Democrats’ ability to thwart him.

Predictably each side blamed the other for the stall in negotiations.

“We were, you know, progressing well,” Rep. Tom Graves, R-Ga., said Sunday on ABC’s “This Week.” ”I thought we were tracking pretty good over the last week. And it just seems over the last 24 hours or so the goalposts have been moving from the Democrats.”

House Budget Committee Chairman John Yarmuth, D-Ky., countered by saying on the same show, “The numbers are all over the place.”

“I think the big problem here is this has become pretty much an ego negotiation,” Yarmuth added. “And this really isn’t over substance.”

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Associated Press writers Hope Yen, Andrew Taylor and Lisa Mascaro in Washington and Julie Walker in New York contributed to this report.

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