Easy Sunday: Bizzaro World

In Bizarro World everything is backwards.

If you were a child in the 1950s you know about Superman and "Bizarro World." In Bizarro World all the Superman characters are distorted opposites of themselves. Earth is a cube. Superboy is a brat. Everything is the opposite of normal. Bad is good.

The U.S. Supreme Court has gone Bizarro World. 

Justice Sam Alito:

"Now, if an incumbent who loses a very close, hotly contested election knows that a real possibility after leaving office is not that the president is going to be able to go off into a peaceful retirement but that the president may be criminally prosecuted by a bitter political opponent, will that not lead us into a cycle that destabilizes the functioning of our country as a democracy?"

Justice Sonya Sotomayor asks Trump's lawyer:

"If the president decides that his rival is a corrupt person and he orders the military. . .to assassinate him, is that within his official acts for which he can get immunity?" 

John Sauer responds: "That could well be an official act [and therefore immune from prosecution.]"  

Robert Reich, professor, author, and former secretary of labor comments.

"Alito had the chutzpah to claim that if a president thought he might be prosecuted for whatever he did to cling to office — including inciting a riot at the U.S. Capitol — he would likely keep clinging by any means possible. Ergo, according to Alito’s upside-down logic, the possibility of post-presidential prosecution could 'lead us into a cycle that destabilizes the functioning of our country as a democracy.'

Hello? Surely Trump’s insurrection destabilized American democracy more than special prosecutor Jack Smith’s attempt to hold Trump accountable for it."

 

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Ukraine defense. Self defense.

We aren't sending money to Ukraine. We are sending weapons: Artillery shells, drones, missiles, tanks.

We build those here in the USA. 

Aid to Ukraine is an American jobs program.

I have mixed feelings about what constitutes a just and necessary war, including this war in Ukraine. But I am OK with our helping Ukraine protect itself from Russia. 

As a young man of draft age during the Vietnam War I considered battles over territory, markets, and influence to be a game played by selfish old men to gain power at home while they sent young men off to fight and die. These lyrics sung by Edwin Starr in 1970 seemed about right to me:

"War, huh, yeah
What is it good for?
Absolutely nothing
Say it again, y'all
War, huh (good God)
What is it good for?
Absolutely nothing, listen to me, oh"

I still think that. But I recognize that it is a dangerous world, and that some of those selfish old men lead other countries. So my feelings are more conflicted now.

Most of the opposition to our giving aid to Ukraine comes from the political right. Trump tilted toward Russia and he brought his party along. There is an argument to be made that we forced Russia's hand. The West's alliances with Slavic countries crowded Russia. Russia perceived a threat. This should not be hard for Americans to understand. Countries are nervous about borders. Over half of Americans consider immigration to our country an "invasion," the repopulation of the U.S. by the descendants of the indigenous people White Americans displaced 200 years ago. They are at our southern border. They are unarmed, impoverished, and eager to work at hard-to-fill jobs. Poland, the Baltic countries, and Ukraine are armed rivals, allied with yet more rivals. We should not be surprised that Russia felt it needed to do something. 

Still I hope Ukraine survives. I want a peaceful global order and Russia's invasion upsets that order. I want Russia stopped.

The U.S. is fighting this war alongside Ukraine the way that Americans prefer to fight. We are the arsenal. Other people do the fighting and dying. Our provisions; their blood.

Opponents of our assistance to Ukraine describe our aid as an expensive act of generosity. That is why they talk of giving money to Ukraine. We don't send much money. We send weapons made in U.S. factories. Marc Thiessen of The Washington Post has written two columns describing where weapons are made, and which U.S. representatives oppose Ukraine support notwithstanding their own districts benefitting from those jobs, shown in red on the second map.

The American economy shifted from being a manufacturing powerhouse into a service economy. China manufactures things to sell us. We manufacture debt to sell them. There is a strategic problem with this. The ability to manufacture weapons at home and in quantity is a matter of national security. In the 1940s, Germany and Japan had technologically more advanced weaponry than we did, but that wasn't what counted in a prolonged war. We overwhelmed them with our ability to produce ships, planes, and munitions. The weapons of the present and future are drones and missiles, but critical parts of the supply chain to make those weapons are in China. We lost our capacity to mass-produce artillery shells-- 19th and 20th Century technology -- and it turns out that Ukraine needs those. 

Insofar as America reduces the likelihood of war by being strong and self-sufficient in our ability to provision our military -- and therefore too strong to be tested -- then there is national purpose in our rebuilding our defense-oriented manufacturing.

The war in Ukraine showed us that we have lost our ability to fight a protracted ground war. 

Our aid to Ukraine is self-defense. It goes beyond raising the cost to Russia for invading a neighbor, although it is surely that. It is also a matter of America rebuilding its onshore capacity to provision our military.

War may be good for nothing. But it is worse to fight one and lose because China won't sell us the drone parts we need.

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Supreme Court comment

     "President Trump is still liable for everything he did while he was in office. We have a criminal justice system in this country. . . and former presidents are not immune."
          Senator Mitch McConnell, on the Senate floor, explaining that even though he didn't vote to convict Trump after his impeachment, that the law would judge him.  

Yeah, well, maybe presidents are immune after all.

The Supreme Court heard the Trump lawyers argue that U.S. presidents are immune from prosecution for official acts. And nearly everything the president does is an "official act," they argued. That includes encouraging states to send fake elector ballots and organizing a coup d' état to attempt to stay in office. 

We know something now we didn't know four years ago. We now know that the way to stop a political crime (like an attempted coup d' état) is by a political process -- impeachment -- not the legal process.  The legal process doesn't work for political crimes. And if a president has the support of over one third of the U.S. Senate, then the president can do anything he wants. That includes shooting someone on Fifth Avenue or having Seal Team Six kill his political opponent. The president could say he was doing that as part of his job. If the president openly took a million-dollar bribe in exchange for appointing someone an ambassador, that, too, would be done as part of an official act. Again, the remedy is impeachment, not prosecution.

And a senator in an impeachment trial, when looking for a "high crime and misdemeanor" to justify conviction, would observe that for a president essentially nothing is a crime. That means he is innocent of that high crime and misdemeanor, so he cannot be convicted. Catch 22.

I asked a close observer of the U.S. Supreme Court what he thought. Conde Cox is a commercial and business disputes lawyer. He has been a member of the bar of the U.S. Supreme Court for 29 years. That entitles him to the privilege of viewing Supreme Court hearings in person, including most recently the Colorado ballot-access case. He sent me this quick observation. He carries out his national bankruptcy practice from Ashland, Oregon.

Comment by Conde Cox

 I did not attend in person today in Washington, D.C. the Supreme Court's oral argument in the presidential immunity case. 

I did listen to the live audio. It is much more difficult to assess the posture of the Supreme Court by listening to oral argument by audio than it is to assess the likely outcome via in-person attendance at the oral argument. 

That said, my takeaway is that this case appears most definitely to involve a split decision. That is unlike my prior (correct) prediction of a nine-zero vote in the Colorado ballot disqualification case. I predict a six-three decision for a remand to the District Court to hold many, many hearings over what constitutes “official acts” that would  be subject to immunity from prosecution. I also predict that the majority of probably six -- or perhaps five, with Justice Coney Barrett bolting from the other conservatives --  will adopt and articulate a new “test” for what constitutes an “official presidential act.” Creating this test will require an overwhelming amount of pretrial litigation before the case against Trump can go to trial.  

The likely litigation over coming months and years will include a fight over whether an official act might include Trump’s aiding and abetting the January 6 insurrection. As a practical matter this will allow him to avoid all accountability for his attempt to prevent the Electoral College votes from being counted on January 6, 2021. The waters over presidential immunity will have been so muddied by this court that it will take forever to learn whether Trump can hide behind the cloak of “presidential official acts.” 

If the Court rules as I predict, delaying interminably a trial on election interference, in 50 years people will see this as the 21st Century’s equivalent to the 19th Century’s Dred Scott decision. That case ignominiously confirmed the right of a Southern slave owner to reclaim his “property” after the slave had escaped to a free state, and declared that Black people of whatever status were not U.S. citizens and had no right to access the federal courts. The Dred Scott decision has come to be viewed as flatly wrong, and a precipitating cause of Civil War. If Chief Justice Roberts goes with the other conservatives and if this is a 5-4 or 6-3 decision favoring Trump, then “The Roberts Court” will go down in history as one of the most out-of-step and hurtful Supreme Courts in our nation’s history.

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Arizona: Fake Documents, Fake Electors

"Thou shall not bear false witness."
     Exodus 20:19 and Deuteronomy 5:20

State governments are holding fake electors to account. 

A grand jury in Arizona joined Wisconsin, Michigan, Nevada, and Georgia in indicting the people who swore falsely that they were "duly elected and qualified Electors for President and Vice President of the United States from the State of Arizona." The indictment.

Arizona AG Kris Mayes

My lawyer-friends have given me casual advice over the decades: Never create a false document. This wasn't moral or spiritual advice. It was legal advice. The document is there, on paper, mute, permanent, and available for close examination. It is what it is. Don't sign something false. It will haunt you, they warned.

The 11 people who gathered in Phoenix were not "duly elected." The presidential votes had been counted. Arizona courts had reviewed multiple claims of fraud and error and found nothing of consequence. Arizona's Republican governor certified that Biden had won the popular vote and therefore the election.

A grand jury indicted them on four counts of conspiracy, fraud, and forgery. The indictment described a multi-state plan to allow Vice President Pence to consider two slates of supposedly equally valid ballots. He might discard both slates, and that would throw the election to the House of Representatives, where Trump would win.

The plan required Republican partisans in seven battleground states to sign a certificate of election asserting they were "duly elected." Electors in five of the seven states did so, Arizona's among them. Electors in two states, Pennsylvania and New Mexico, resisted and insisted on inserting language that said their election was contingent on courts, in fact, finding them to be duly elected. Electors in those two states are not in trouble. 

The fake-elector scheme hinged on the willingness of citizens to sign their names on a document asserting something untrue. Their being "duly elected" was an aspiration, something almost true. But it wasn't true.

There is a vibe in the current moment and zeitgeist that says that elections don't count. Someone painted that in front of the Jackson County elections office right after the 2020 election.

Trump asserts that cheating is the national norm, that elections past and in the future have been and will be rigged, so cheat first. Assert victory and stick to that. That norm is dangerous for a republic. A republic needs norms and expectations that rules and laws are enforced and that good people -- people worthy of public trust -- obey the law and would be ashamed to be caught in a lie.

I am happy that the people who signed their names to false election documents are in serious trouble. I expect it will deter to others. 

Heads up: 

This blog post is a prelude to what I expect will be subsequent posts on telling the truth in the Oregon Voters Pamphlet. It is morally wrong to mislead voters about one's qualifications for office. But there is one place where it is also illegal to do so, the top section of the Voters Pamphlet statement describing education and occupation. Here is the warning to candidates preparing their Oregon Voters Pamphlet candidate statement, page 10:

Would anyone be so foolish as to misstate one's job history in the face of that warning?

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Judge David Orr responds

"I read the news today, oh boy
About a lucky man who made the grade
And though the news was rather sad
Well, I just had to laugh."

       John Lennon and Paul McCartney, 1967

Some politics is local.

With all the news about the Trump trial, Ukraine aid, Israel, the Florida six-week abortion ban, and Grants Pass at the Supreme Court, why am I boring readers with talk about Jackson County judges?

I am trying to fill a news hole. 

I will get back to national issues soon, although I don't see much to laugh about.

I am not an attorney and I have never met Judge David Orr. Local attorneys I respect tell me Orr is an adequate judge -- not good, not a disaster. They tell me he is slow and unpredictable, which isn't good in a judge. I have no independent judgment. His former colleague on the bench, Joe Charter, and the current district attorney, Beth Heckert, are on record recommending he be replaced. Both had close-up views of Orr's work. Johan Pietila, a senior assistant in the County Counsel's office, is his opponent. I have never met Pietila either. 

David Orr

Johan Pietila

The whole process seems to me like a poor way to choose our judges, but that is the Oregon system. I look for recommendations from people who seem to have first-hand information.

Four years ago Orr ran for judge with a partisan "whisper campaign," running as a wink-wink Republican, with his name listed in GOP voters guides. Now I notice few signs with Orr's name anywhere, and multiple signs for Pietila. I don't see Orr signs clustered among Republican candidates this time around. Maybe Republicans came to the same conclusion as a majority of attorneys who supported Pietila instead of Orr in the bar poll. Or maybe Orr decided that now that he is the incumbent he would switch messages and strategy and emphasize that he is not a secret partisan. Orr's new slogan is "Justice Without Politics," and his voters pamphlet says he does not accept campaign contributions. 

I expect to vote for Pietila, based on the faint-praise word-of-mouth comments I hear about Orr. But since I published District Attorney Beth Heckert's comments -- with more to come from her in a future blog post -- out of a sense of fairness I will publish Orr's response to Heckert. 

Orr issued his own media release yesterday. He did not send it to me, but he did send it to local TV station KOBI, which published it. Good for them. Locally-owned KOBI makes efforts that no other media outlet does. No other broadcaster or newspaper even mentioned Orr's response, much less published it.

Here is Orr's comment, as presented by KOBI.

1. Ms. Heckert did not attempt to appeal any of the rulings she complained of.

2. The district attorney enjoys no special prerogative in making judicial complaints – any person may do so.  Many people do so, and there is no consequence to the complainant if the complaint turns out to be meritless.

3.  Until last year, Oregon had a state-wide problem with district attorneys abusing the recusal process to cherry-pick judges.   District attorneys had the power to recuse a judge without demonstrating a reason, overriding the will of the voters who elected the judge to office.  Between 2016 and 2020, motions barring judges from criminal cases were filed in 20,687 cases across Oregon, overwhelmingly by district attorneys. Michael Gillette, a former Oregon Supreme Court justice, wrote the last major decision on the recusal statute three decades ago.  Testifying before the legislature last year, Gillette explained that when they issued the opinion, the Supreme Court justices didn’t anticipate disqualification of judges from an entire class of cases for months or years, “preventing judges from carrying out the function they were elected to perform.” He said “the result is a system that’s broken.”  (The Oregonian, May 19, 2023.)

In 2023, Senate Bill 807 corrected this problem, and now district attorneys must demonstrate a reason for a recusal.  This aligns Oregon’s procedure with most of the rest of the country.  As a result, I am no longer recused from district attorney cases.  I will continue to require accountability from all parties appearing before me, regardless of who that party may be.

It is also a matter of record that the two main cases leading to the DA’s recusal motion centered on transparency of DA and police operations.  In one, a deputy district attorney had filed a case that resulted in an internal investigation regarding mishandling of evidence.  The internal investigation was conducted by an MPD sergeant who was romantically involved with (and later married) the deputy DA who had filed the case. The DA objected to the release of the records of the internal investigation to the defense, but were seeking a lengthy prison term for the defendant.  I ordered the release of the records from the internal investigation. In a second case, it was found that MPD has a written policy that allows MPD to decide internally, without informing the DA, whether or not to disclose certain types of evidence in criminal cases. This practice is flatly prohibited by a 1995 ruling from the United States Supreme Court (Kyles vs. Whitley, 514 U.S. 419), and I did not allow the DA to proceed in that manner in cases before me. These cases were cited by the DA in their recusal motion. The district attorney may wish to issue an additional press release explaining their position on those matters.

 

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Jackson County, Oregon Judges face Fitness Complaints

     "Judge Bloom told me when he was considering doing this [vacating the ban on Judge David Orr hearing criminal cases] in October 2023, that it was politically motivated to assist Judge Orr in his reelection."
          District Attorney Beth Heckert, April 22, 2024

District Attorney Beth Heckert says she will file complaints with the Commission on Judicial Fitness against Judges David Orr and Benjamin Bloom.

Heckert

The Jackson County district attorney accuses Judges David Orr and Benjamin Bloom of playing politics. She says it is improper and against the rules for Oregon judges. 

First the backstory. Judge David Orr is having a troubled first term as judge. The district attorney, Beth Heckert, considered his rulings on criminal cases so erratic and wrongly decided that she did something unique in her 35-year career. In 2021 she filed a motion to remove a judge from hearing all criminal cases. After review, the then-presiding judge, Lorenzo Mejia, signed an order approving her request. Now Orr is up for re-election and faces a challenger, Johan Pietila, a senior assistant counsel in the office of the County Counsel. Orr lost the poll of local attorneys to Pietila, a serious vote of no-confidence. The blanket ban on hearing criminal cases is a black mark on Orr's reputation.

Heckert issued a press release yesterday afternoon detailing the timing of meetings between her and the current presiding judge, Benjamin Bloom. She said Judge Bloom told her in October that he wanted to lift the ban as a political favor to Judge Orr. She said she repeated her ongoing concerns about Orr's ability to judge cases fairly, and Bloom relented. But this past week, with the May election close at hand, judicial candidates faced a deadline to answer questions posed by the local newspaper, the Rogue Valley Times. She wrote that she learned Judge Orr had stated the ban on his hearing criminal cases had been lifted. She learned that Judge Bloom agreed to lift the ban and had it officially backdated to comply with the timing of Judge Orr's assertion, doing so "Nunc Pro Tunc," a judicial way to backdate a ruling.

Heckert calls this political gamesmanship. She wrote that Bloom is using his office to benefit the campaign of a fellow judge. Her announcement to local media concludes:

Judges in Oregon must comply with the Code of Judicial Conduct. . . .. I will be filing a complaint with the Commission for the conduct of both Judge Orr and Judge Bloom during this incident. I believe both Judge Orr and Judge Bloom violated the following:

Rule 2.1 (A) A judge shall observe high standards of conduct so that the integrity, impartiality and independence of the judiciary and access to justice are preserved and shall act at all times in a manner that promotes public confidence in the judiciary and the judicial system.

Rule 2.2 A judge shall not use the judicial position to gain personal advantage of any kind for the judge or any other person.

Rule 5.1 (C) knowingly use court staff, facilities, or other court resources in a campaign for judicial office.

Heckert's full text.

This blog looks at winning and losing political acts and strategies. There are two big losers. Judge Orr is a loser. In trying to erase the black mark, he brought a little-remembered problem back into the public eye, making it a significant issue once again. Orr? Oh, yeah, he's the one who couldn't be trusted to hear criminal cases.

Judge Bloom is a loser. In an apparent attempt to accommodate a colleague's wishes, Bloom made things far worse for Orr. The black mark splattered onto Bloom, too. Bloom has been called out for playing politics. Judges dislike needing to defend complaints with the Judicial Fitness Commission. They dislike even more a public reprimand, if one should happen to come.

The public loses because this creates more discord within a courthouse already under stress. The Jackson County courts have scheduling and docket problems caused by a combination of too few judges, the Orr blanket recusal, and the RISE Law Group's high-volume practice that includes widespread and multiple recusal requests.

There is one "winner." Judicial candidate Johan Pietila is a bystander to all this, but his campaign is almost certainly helped. Few people pay attention to the judges we elect, so incumbent judges are normally re-elected by default by an inattentive public. The apparent efforts of Judges Orr and Bloom backfired spectacularly. They reminded people that Orr has baggage. 

[Note: I welcome guest posts from Judges Orr and Bloom responding to this criticism by the district attorney.]

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How they voted on the Aid package.

Here is a link to the roll call vote on moving to the House floor aid to Ukraine, Israel, and Taiwan.

Click Here: Find your U.S. Representative

Marjorie Taylor Greene voted NAY, and she condemned Speaker of the House Mike Johnson for allowing the vote. 

The total vote was 316 Yes, to 94 No. 

Republicans supported the bill 151 Yes, to 55 No. Trump loyalists within the House GOP caucus support Trump's wish to force Ukraine to settle with the Russians. They voted No. Mike Johnson and a majority of Republicans favored the more traditional GOP position of opposing Soviet, now Russian, expansion into Europe. 

Democrats voted 165 Yes to 35 No. For Democrats, a No vote was a way to show condemnation of Israel's prosecution of the war against Hamas, which they describe as an attack on Gaza's civilians. Alexandria Ocasio-Cortez and Ilhan Omar were two of the Democrats who voted No. The Democratic leadership voted Yes. 

For Oregon readers: Cliff Bentz and Lori Chavez-DeRemer voted Yes. Bentz endorsed Trump but is now positioning himself as a "normal" Republican and not part of the Marjorie Taylor Green-Paul Gosar-Matt Gaetz "blow it all up" wing of the House GOP. In Bentz's first vote as a U.S. Representative he backed Trump's effort to stay in office by voting to reject the Pennsylvania electoral votes that certified a Biden win by 80,000 votes. Lori Chavez-DeRemer represents a district won by Biden. Within the bounds of what is acceptable to be a Republican, she is positioning herself as being open to bi-partisanship. She supported Mike Johnson as Speaker, which, within the context of being a House Republican, defines her as a moderate. All Republican members in the U.S. House cast their votes for Speaker Johnson. Unlike Chavez-DeRemer, Bentz had previously backed Jim Jordan.

Here is the link to the vote on Ukraine on April 20.  Ukraine Security Supplemental Appropriation Act, 2024

https://clerk.house.gov/votes/2024151

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