Category Archives: The Scandals

Dates that will live in Infamy

President Franklin D. Roosevelt described December 7, 1941 as “a date which will live in infamy” in his speech the day after the Japanese attack on Pearl Harbor. 12/7 was a date seared into the memory of those who lived through it, although I think not nearly as meaningful to those who like me were born considerably later. Even infamy may have a half-life, and I suspect that today most people look at ‘Pearl Harbor Day’ on the calendar and don’t think that much of it.

We of the current generations have two dates of our own that live in infamy at least for now: 9/11 and 1/6. What these dates have in common with 12/7 is that they all represent thankfully rare dates on which the United States was attacked. But 1/6 isn’t quite like the others. The attack was from within not from a foreign power. And the evocative power of that date seems less universal, as some have taken to downplaying the significance of the sacking of the Capitol, and of the attempt to set aside the results of the Presidential election.

The January 6 Commission Report sought to nail down the history and to protect the popular memory, and the polity, from they-were-just-tourist revisionists and Big Lie conspiracists. In this, the Committee members were only partly successful, although the (multiple) juries are not just still out, but not even empaneled, as the Trump legal team tries to delay a formal reckoning of his and his associates’ conduct.

Here’s hoping the evocative power of those dates will fade with time in a normal, healthy way rather than being erased by lies or enshrined as the beginning of the end of the ‘American experiment’.1


  1. I was surprised to learn the this phrase, commonly attributed to Democracy in America, does not appear in the French original, but is apparently an invention of Tocqueville’s first English translator Henry Reeve. []
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Trump Trial Testimony: Read It (and Weep?)

Press WatchMy brother, the journalist and now journalism watchdog, had a great idea:

Donald Trump took the stand on Monday in his civil fraud trial in a Manhattan courtroom.

But because television cameras were not allowed inside, the public was only given a filtered look at the proceedings, through the eyes of journalists whose takes varied considerably. Without the ability to record audio, reporters were unable to capture longer passages and exchanges.

Precisely what went on in that courthouse should not be shrouded in mystery. So I tracked down the court reporter working that day, and purchased from her the full transcript. (I raised the money to do so through a GoFundMe. Thank you to all who contributed!)

And now I’m making it public, for all to see. Feel free to download and repost.

You can read Trump’s trial testimony online or read Trump’s trial testimony in PDF.

Thank you, Dan!

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HUUUUGER Than Watergate

Nixon had the eighteen-and-a-half-minute gap in the White House tapes. Nixon was a piker. Trump has a SEVEN+  HOUR gap in his phone logs that just happens to fall during the Jan 6 insurrection. There’s almost no conceivable explanation that doesn’t make Trump look awful.

I’m actually quite depressed about this, as I fear that it vastly increases the odds that Governor Evil will become the Republican nominee, and perhaps even the next President.

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America Needs One More Jail

In general, I’m of the view that we have too many jails and prisons (and far too many private prisons!), and that this is an industry, or social practice if you prefer, where supply tends to create demand for reasons economic and social.

But I’ve learned that we are short of one jail we need. In today’s New York Times explainer on executive privilege (a non-constitutional doctrine invented by courts, but don’t get me started), author Charlie Savage has an aside in his explanation of the convoluted and uncertain way in which Congress enforces its finding of contempt by non-cooperating witnesses:

(In theory, lawmakers could also direct the House sergeant-at-arms to arrest recalcitrant witnesses and detain them until the end of its session, but that “inherent contempt” authority is viewed as obsolete; the Capitol has no prison cell and lawmakers have not tried to use this power since 1935.)

So here’s my very modest proposal: Congress should either build its own little jail, or it should contract with a nearby jurisdiction–or a private prison company–to guarantee to hold anyone arrested by the Sergeant at Arms. I doubt they would actually have to use it; rather, having this capacity on tap would provide a much greater in terrorem effect than the current system which requires first that the U.S. Attorney for the District of Columbia take up the case, and second that the court fights over it happen quickly–the latter being highly unlikely.

Surely a contingency contract with a per diem per prisoner if required would be a very minor budget item. Stick it in the reconciliation bill please.

Posted in Law: Everything Else, The Scandals | 1 Comment

The First Thing We Do is Praise (Certain) Lawyers

Dick the Butcher in Henry VI, part II, act IV, Scene II, Line 73 explains the necessary first step to seizing power illegally.

Trump really did attempt a coup.

Mr. Rosen, Mr. Donoghue and Mr. Pak — all Republicans — testified that Mr. Trump was not seeking their legal advice, but strong-arming them to violate their oaths of office, undermine the results of the election and subvert the Constitution.

What stopped him?  Two things: 1) Lawyers with a basic core of ethics that required fidelity to bedrock democratic values;  and 2) the general incompetence of the plotters (cf. events of Jan 6, 2020).

I believe this has important implications for how we teach law students.  More discussion of (or paeans to?) the values of the rule of law in a democratic society may be in order.  At least until the Supreme Court makes ashes of it in our mouths, at which point…what?…Edward Luttwak?

Continue reading

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Lest We Forget: AG William Barr’s Sad Record

Marcy Wheeler has the goods:

Among the things Bill Barr did in his second tour as Attorney General were to:

In short, over an extended period, Bill Barr laid the groundwork for the two-month effort to undermine the election that culminated in a coup attempt. The outcome of Barr’s actions — the disparate treatment by the department of Trump supporters, the empowerment of right wing terrorists, the continued influence of Powell and Rudy —  was foreseeable. Nevertheless, Barr persisted with those policies that laid the groundwork for the January 6 insurrection.

And, let’s not forget the very misleading spin of the Mueller Report.

Posted in Law: Ethics, Law: Everything Else, The Scandals | 1 Comment