Republican Rashomon: Were You Lying Then, or are You Lying Now?


I have taken to stopping now and then at, home to the refugees from the erstwhile Weekly Standard. I thought this morning’s observation was good:

So when did Cohen actually lie to Congress—then or now?

Let’s break this down logically. If Cohen lied during his earlier testimony, it’s reasonable to believe that he told the truth today in saying that he is no longer protecting Trump. If he lied today, then it’s reasonable to believe that his guilty plea for lying was itself a lie. If this tongue twister puzzles the brain, it should.

Goblet or Heads?—or, You Can’t Beat Something with Nothing

goblet heads

Many have remarked on how the Republican members of the House Oversight Committee beclowned themselves yesterday.(I am, as always, indebted to a good friend for sending along this highly bemused British take on the clown show.)

Here, I only want to make two points.

First, Cohen was superbly prepared and ready. Obviously, someone—I assume it was Lanny Davis—spent many hours role playing with Cohen, anticipating each and every thing that would be thrown at him, and then practicing over and over again how to respond. Good for Cohen, and good for his lawyer—whoever was or was not paying the lawyer.

Secondly—without taking anything away from the Republican committee members’ own foolishness and bad faith—the primary fault for their execrable performance does not lie with them. Here is why.

Think of a litigable case as a situation where the facts can be viewed in two different ways:

  • Do the facts show us a conspiracy, or do they just show a lot of separate actors?
  • Does this picture show a goblet, or do you see two heads and a white space between them?

In short, a litigable case—as distinguished from a hopeless case—is a case where there are two different explanations for a set of facts, and each explanation is at least semi-plausible.

Even if the House Republicans were not a bunch of incompetent buffoons, they were just not in a position to construct a semi-plausible defense for Donald J. Trump. Ignorant of the facts, and ignorant of what explanation Trump would eventually embrace, they could not, for example, offer an alternative explanation for the $35,000 check he signed. Cohen said it was to reimburse a hush money payment. What was their answer? That the check was actually for some other service rendered? That Cohen had manufactured a bogus document? That Trump did reimburse the hush money payment, but so what?

It was up to Trump’s defense counsel to develop such a case, and it was up to the Republican spokesbots to defend the case. But even the most faithful spokesbot cannot effectively defend a non-existent case.

So, what do we have? Massive malpractice on the part of Trump’s legal team?

Well, yes. But, more importantly, we have a legal team that cannot construct a semi-plausible legal defense because their client won’t let them. And he won’t let them because he still believes he can bullshit and lie his way out of any predicament. That is Trump’s central character flaw, and, as the Wall Street Journal Editorial Board instructs us this morning, character is indeed destiny:

The day was above all a reminder that Americans elected a President in 2016 who had spent decades in the sleazier corners of New York business and tabloid life. He surrounded himself with political rogues like Mr. Stone, legal hustlers like Mr. Cohen, and even brought in a Beltway bandit from central casting, Paul Manafort, as his campaign chairman for a time.

Republicans knew all this when they nominated Mr. Trump, and now he and the GOP will pay a political price as Democrats marinate in that blue past in hearing after hearing. Character does matter, especially in Presidents.

Is There a Lawyer in the House?

I agree with someone named Ken White (“attorney and former federal prosecutor“). After criticizing Democrats’ performance during the Cohen hearings, White continues,

House Republicans needed a trial lawyer—or even a moderately bright junior-high mock-trial participant—to tell them how to do anything.  Cross-examination is hard.  It’s not just barking at the witness.  It takes meticulous planning and patience. Republicans could have marshaled Cohen’s many sins of the past to undermine his statements today. Instead they returned repeatedly to lies and misdeeds he’d already admitted, wallowed in silly trivialities like the “Women for Cohen” Twitter account, and yelled. The effect was to make an unsympathetic man modestly more sympathetic. Republicans committed the classic cross-examination blunder: They gave the witness the opportunity to further explain his harmful direct testimony. They provided Cohen with one slow pitch up the middle after another, letting him repeat the cooperating witness’s go-to explanation like a mantra: I did these bad things so often and so long because that’s what it took to work for your guy. I have seldom seen a cross-examination go worse.

Today Republicans had the opportunity to learn … that theatrical committee hearing tactics are ineffective against a witness trained to withstand cross-examination. Will the president of the United States ever learn that a federal criminal investigation is not a reality show?

Don’t Trust That Lying Sack of Shit That Trump Used as His Fixer for a Decade!

Cohen guilty


Dr. Aardvark and I watched some of the morning testimony. She is less inured than I to political stupidity, and could hardly believe that Republicans were making the brazen argument they were advancing:

The argument Republicans make about Cohen comes down to this: This gentleman, whom Trump employed for a decade, is such a dishonest criminal that we shouldn’t believe anything he says about anything.

I just heard a talking head saying that she wouldn’t want any of these House Republican  jerks as her lawyer. Amen to that.

Money (That’s What I Want)

Why does Trump continue to enjoy the support of more than 40 percent of the country, and what might change that surreal level of support? We have been thinking about these things for a long time. We are sick and tired of thinking about them. But they remain a puzzlement. And they remain a public concern of the first order of magnitude.

In working out puzzles, I have found that it’s wise not to overlook the obvious. Washington Post columnist Harry Olsen reminds us of some obvious points. The Republican Party, Olsen allows, is made up of five components (my terminology, not his):

  • people who care about low taxes more than anything else,
  • people who care deeply about deregulation,
  • people who care deeply about social issues, notably abortion,
  • people who dislike and fear brown people, and, last and maybe least,
  • “moderates.”

Olsen says that when you add up the first four categories—and, I assume, eliminate any overlaps, because surely there are some who fit more than one category—you are talking about 80 percent of the Republican Party.

And, in Olsen’s analysis, the puzzle of continued support for Trump isn’t a puzzle at all: 80 percent of Republicans continue to support Trump, because 80 percent of Republicans are getting what they want. This is why a “moderate,” such as William Weld, poses no risk to Trump if he runs against him in a primary:

The Republican Party is now the party of Trump, but not for the reasons anti-Trumpers think. It is not Trump’s party because he has bent it to his will; it is his party because its voters have bent Trump and the party to their will. Anyone who wants to lead today’s GOP must engage with that will, or they will continue to feel politically homeless.

As far as I can tell, Olsen is pretty much right, as far as he goes. He doesn’t explain—he doesn’t even address or pretend to explain—why so many people are so morally depraved that they will accept racism, mendacity, narcissism, tinhorn dictatorship, and treason as long as they get their preferred tax rate.

But let’s reason from the facts, however much we dislike the facts. And let’s go from there.

What will cause Trump’s house of cards to collapse onto itself?

Logic tells us that will happen if and when—and only if and when—Mr. Tax Cuts Über Alles and Ms. I Hate Brown People and Mr. I Love Fetuses come to realize that continued support for Donald J. Trump is counterproductive, in light of their own idiosyncratic objectives.

Like their God Emperor Trump, these folks appear to be shameless. Certainly, they have a grossly distorted value system. Lots of them are addicted to Fox News, and have come to have a tenuous grasp on reality.

But when they see their God Emperor going down, maybe they will reevaluate their continued support.

On that note, once again, Happy Michael Cohen Day.

“He was Sorry He Missed”

looseScrewIn her op-ed entitled Amy Klobuchar’s defenders mistake the promise of feminism,Washington Post columnist Elizabeth Bruening gives permission for feminists to condemn Senator Klobuchar’s abuse of her staff.

That’s nice.

When I was a young lawyer, one of the partners to whom I report was a male Amy Klobuchar. I’ll call him Al.

To me, Al was horrifically abusive verbally, and not all of it was deserved. A peer of mine credibly reported that Al threw a filing cabinet drawer at him. Later, my friend said, “Al stopped by to say he was sorry. But I always thought he was sorry he missed.”

Some months after the filing cabinet incident, I had to visit Al in his office one morning. I found him pacing around and around in a circle, muttering darkly to himself. “Arius,” Al declared, “do you know that nothing anyone has said to me this past week has made any sense whatsoever?”

I was prepared to give full credence to Al’s report of his subjective state of mind: how nothing he had heard recently made any sense sense—to him.

I think you know the takeaway: abnormal abuse of staff signifies a loose screw.

We don’t need another president with a loose screw.

A Mell of a Hess

Believers in American exceptionalism may pride themselves on the exceptionally tragic malfeasance that brought about Trump’s election. We are indeed unique among the nations.

But it seems that England, the Mother of Parliaments, has decided to give us a run for our money in the race to see which country can be the worse exemplar of rational democracy.

Recently, however, the leader of the Labour Party has allowed as how a do over on the Brexit vote might be a good idea.

No shit, Sherlock.

For some fine background reading on the batshit craziness of Brexit see these two pieces:

Fool Britannia, a review of Fintan O’Toole, Heroic Failure: Brexit and the Politics of Pain

David Runciman on Brexit and the Crisis in Britain’s Labour Party

We’re Number 35! We’re Number 35!


I googled “America has the world’s best healthcare” and got “about 7,590,000,000 results.” Well, you can say something really, really often—you can say it seven billion times, if you like—but that doesn’t make it true.

Americans are not only unhealthy, we are uninformed.

In fact, according to the latest Bloomburg Heathiest Country Index, released yesterday, 34 nations are healthier than we are.

But I guess we can’t have universal health care because, dagnab it, we just can’t afford it.

Details follow.

healthiest countries


Greetings to today’s readers in Germany, Pakistan, the Philippines, South Africa, and the United States. For those of you who didn’t make the top 44 list, just be grateful for all that money you are saving by eschewing socialistic control of the healthcare industry.

But do try to add some extra virgin oilve oil and nuts to your diet. They say it does wonder for health in Italy and Spain.

Why Plutocrats Can’t Sleep at Night


If you have, in the recent past, donated large sums of money to elect Republicans, and if you are not a sociopath, what might concern you about the Trump presidency and the upcoming election? For example, might you be regret that the president you helped elect is a traitorous, unhinged, narcissistic liar?

So you might think.

But do the “top Republican donors” in fact have such concerns?

No, ladies and germs, they do not.

But do they, nevertheless, spend the evening sleeplessly tossing and turning? And do they spend their waking hours drinking Pepto Bismol to keep from shitting in their pants?

Yes, they do indeed. This article tells us why:

GOP donors: Trump campaign lacks a strategy to win in 2020

Late last month, more than 100 major Republican donors gathered at the Trump International Hotel for a presentation from the president’s campaign manager Brad Parscale and other top political hands on their plans to keep the White House in 2020 after a brutal midterm election.

But several of the GOP contributors left the two-day retreat in Washington dissatisfied, dogged by essentially the same concern: The president doesn’t really have a strategy to win reelection. …

[B]ased on the interviews, the campaign plainly has work to do to assuage at least some of the Republican donor class, which he will need to finance a massive campaign infrastructurethat he lacked in 2016. Several donors who regularly contribute to Republican presidential candidates and the political groups supporting Trump said his campaign didn’t learn from its mistakes during the 2018 midterm elections, when Republicans lost control of the House and suffered other defeats nationwide.

“We took a shellacking in the midterms,” said Dan Eberhart, a major Republican donor and energy company executive who did not attend the conference but speaks frequently with other Trump givers. “Donors are concerned that the Trump reelect might draw the wrong conclusions from the Republicans’ defeat in the 2018 midterms and are stressing to administration sources and the nascent campaign that a more inclusive … strategy is needed” that reaches beyond the president’s core supporters.



Goofus and Gallant Down in the Ninth District

Goofus and Gallant

Apologies to anyone who sees this post as beating the dead horse one too many times. But I want to call your attention to a superlative piece of reporting on the denouement of the Mark Harris election debacle down in North Carolina’s ninth congressional district. It appeared in the New Yorker at 5:00 AM this morning, and is titled The Tearful Drama of North Carolina’s Election-Fraud Hearings.

Appearing as Goofus is the Reverend Doctor Mark Harris, graduate of the Southwestern Baptist Theological Seminary; erstwhile pastor of the First Baptist Church of Charlotte, North Carolina; serial candidate for political office on the Republican ticket; and the owner of a severely defective moral compass.

A number of others appear in supporting roles, notably one John Branch, “the lawyer for Harris’s campaign,” who didn’t turn over all the documents he shoulda orter have turned over to the Elections Commission.

As the New Yorker article lays out, Messrs. Harris, Branch, and their confederates not only lied, but lied very unskillfully.

Appearing as Gallant was John Harris, U.S. attorney and son of the Reverend Doctor Harris, who kept his head high and testified truthfully to what he had to testify about.

But I want to call particular attention to David Freedman, Esquire, “Harris’s personal lawyer.”

When your client is in the process of committing perjury, the rules of legal ethics don’t allow you to just sit there like a potted plant. You have got to find a way to halt the proceedings, talk to your client, and have him correct his inaccurate testimony. If he won’t do it, then you have got to resign as his counsel.

The rule is clear. But the rule is not easy to obey, in the moment. Kudos to Mr. Friedman for doing what he had to do. (According to the New Yorker article, this was the first time in thirty years of criminal defense practice that Freedman had to hop up and down because his client was lying his head off.)

Yes, I know. Freedman was doing no more than what the law clearly required him to do. But sometimes just doing the right thing requires courage.

In the end, Gallant won and Goofus lost. Bigly. My virtual daughter, Pollyanna, has urged me to take some solace from this outcome.

Meanwhile, if courtroom drama interests you, please go read the New Yorker piece.

Happy 216th Birthday, Marbury v. Madison, February 24, 1803


Mr. Chief Justice John Marshall delivered the opinion of the Court, writing, in part,

The question whether an act repugnant to the Constitution can become the law of the land is a question deeply interesting to the United States, but, happily, not of an intricacy proportioned to its interest. It seems only necessary to recognise certain principles . …

[T]here is no middle ground. The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.

If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law; if the latter part be true, then written Constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable. …

It is emphatically the province and duty of the Judicial Department to say what the law is.


Today’s readers come from Canada, Germany, and the United States—including, I am reminded, the seventh floor here at Happy Acres. Thanks to everyone for stopping by.

Got Religion?

Note to readers: as far as I know, Trump has committed no fresh outrage this morning. I assume he is out on the golf course, cheating as usual. In any event, nothing in the post relates to Trump.

In is, instead, prompted by the fact that, at 6:22 last evening, the Spirit moved George Will to post The Supreme Court has a chance to clear up decades of confusion.

In response, the Spirit has moved me this morning to share just a few thoughts on the topic of freedom of religion and the First Amendment.

What the First Amendment Says

In law school, they teach you that, if your job is to construe a written provision—for example, a part of the Constitution, or a statute, or a contract—the first thing you do is look at the actual words employed in the document. In fact, the professor will yell at you if you forget to do that. As well he should. So, with that thought in mind, let’s refresh ourselves on the words of the First Amendment. It says,

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

The Establishment Clause and the Free Expression Clause

As the language implies, what we call constitutional freedom of religion has two rules. Rule One: “Congress shall make no law respecting an establishment of religion.” Rule One is typically called the Establishment Clause. And then there is Rule Two: “Congress shall make no law … prohibiting the free exercise thereof [i.e., the “free exercise” of “religion”].” You will not be shocked to learn that Rule Two is termed the Free Exercise Clause.

Will’s piece of yesterday evening deals with a forthcoming Supreme Court case on the Establishment Clause. (If interested in the details, please read it for yourself.) Will points out (correctly) that the jurisprudence of the Establishment Clause is in a godawful mess, urges the Supreme Court to clear up the mess, but fails to articulate a guiding principle that would accomplish that purpose.

Establishment Clause Jurisprudence is Bad, but Free Expression Clause Jurisprudence is Worse

So, here’s something to think about on a lazy Saturday afternoon.

Pretty much everyone agrees that the Free Expression clause prohibits government from arbitrarily targeting a particular set, and forbidding or restricting religious practices for no good reason other than dislike of that sect. So far, so good. (And that sort of thing does happen from time to time, and the courts have been pretty good about knocking it down.)

But what if Congress, or the state legislature, or the city council enacts a law that isn’t targeted at a particular sect, and that is aimed to solve a general problem or achieve some objective to promote the public good, but the law happens to violate the religious beliefs of some in the community? Here is where things start to go off the rails.

As commonly understood—I didn’t say rightly understood, I said commonly understood—the Free Expression Clause divides all of us into two categories: those who got religion and those who don’t got religion.

If you don’t got religion, then I have bad news for you: you have to obey all the laws.

But if you do got religion, then I have good news: within some limits, you get to pick and choose which laws you need to obey, based on the tenets of your religion.

I would suggest that the first question raised by this dichotomy is whether is makes any sense at all.

But put that aside. Accept on faith the righteousness of the legal distinction between the religious and the irreligious. Here are just a few questions about how to apply the distinction:

What is “religion”—as distinguished from, say, mere philosophy, or mere ethics?

How does an individual prove that she or he has got religion? (Is a court required to accept a mere assertion, or is it permitted to inquire into the sincerity of the belief?)

Then there is this. It’s not controversial that religious claims may sometimes be outweighed by other considerations. For example, a person sincerely adhering to a belief in human sacrifice could not use the Free Exercise clause to defend against murder.

So there is some kind of balancing test involved. But how is a court supposed to weigh and balance in any particular case?

Just a few questions for a lazy Saturday afternoon.

And please do think about them. And when you reach some good conclusions, find a way to let the Supreme Court know. Because the Court hasn’t got a clue.