Waiting for the Midnight Brief

As we await developments in Washington v. Trump, I watched the video of the oral argument before so-called Judge Robart on January 27. It lasts a little more than an hour. Though it deals with a variety of arcane legal issues, I highly commend it.

This, ladies and germs, is how to conduct a civilized debate. This is how to do justice. This is how to address grave matters of state and grave matters of conscience.

As I said, there is quite a lot of legal complexity. I won’t attempt to summarize all the issues, let alone do them justice. Nor should I be understood to downplay the importance of that which I do not summarize.

That said, it is of the first importance that the government cited no actual threats that would be forestalled by the order. It cited no arrests of terrorists from the seven countries mentioned in the order. Instead, the government took the position that it has no legal obligation to show that the order is rationally based. Instead, said the government, its only obligation is to show that the order is “facially legitimate”—i.e., that it purports to be based on facts that warrant the action taken, whether or not the stated facts are actual facts.

As counsel for the state of Washington observed, that means that a stated national security rationale trumps any judicial review of an executive order.

Can anyone think of a more perfect legal underpinning for a fascist state?

Finally, confronted with an apparent conflict between two provisions of the Immigration and Naturalization Act with respect to whether discrimination on the basis of national origin is or is not permitted, learned counsel for the government contended that such discrimination must surely be OK, for otherwise the president wouldn’t even be permitted to bar entry by persons from countries with which we are at war.

She seemed to think that was an exceptionally strong argument. She said it twice.

Her position, of course, would allow the president to bar Holocaust victims on the ground that they are German nationals.

What Trump Could Learn from Machiavelli About Lying

In this post we further explore the proper application of the Rational Fascist Test, or, WWMD. We find that Trump could learn quite a lot from Machiavelli.machiavelli

First of all, be shrewd and cunning.

Everyone admits how praiseworthy it is in a prince to keep his word, and to behave with integrity rather than cunning. Nevertheless our experience has been that those princes who have done great things have considered keeping their word of little account, and have known how to beguile men’s minds by shrewdness and cunning. In the end these princes have overcome those who have relied on keeping their word.

Second, do not tell lies where the truth can readily be verified.

Occasionally words must serve to veil the facts. But let this happen in such a way that no one become aware of it; or, if it should be noticed, excuses must be at hand to be produced immediately.”

Machiavelli’s instructions to diplomat Raffaello Girlami

Third, you don’t have to have good qualities, but it is essential that you appear to have good qualities.

It is unnecessary for a prince to have all the good qualities I have mentioned, but it is very necessary to appear to have them.

So ask yourself:

  1. When Trump tells falsehoods, does he employ shrewdness and cunning?
  2. Does he frequently proclaim as fact things that may be objectively shown to be false?
  3. Does he conceal his bad qualities, or does he flaunt them?

You know the answers. He flunks the test.

Thanks go to The Municipal Machiavelli. Also recommended for The Donald: Scientific American’s 18 Attributes of Highly Effective Liars.


The Rational Fascist Test, or, WWMD?


Aardvark senses that the commentariat is slowly giving up its struggle to find “the method in Trump’s madness.” That’s like sending out a posse to round up all the unicorns in Texas.

Meanwhile, there is a brouhaha about Trump’s Superbowl interview comments on Putin. To go straight to the source—the Faux News Network:

In a special preview, Trump revealed his plans for dealing with Russian President Vladimir Putin

O’Reilly asked Trump whether he “respects” the former KGB agent:

“I do respect him, but I respect a lot of people,” Trump said, “That doesn’t mean I’m going to get along with him.”

Trump said he would appreciate any assistance from Russia in the fight against ISIS terrorists, adding that he would rather get along with the former Cold War-era foe than otherwise.

“But, [Putin] is a killer,” O’Reilly said.

“There are a lot of killers,” Trump responded, “We’ve got a lot of killers. What do you think? Our country’s so innocent?”

In response, leading Republican invertebrates denounced the comments as a denigration of American exceptionalism.

“He’s a thug,” Senate Majority Leader Mitch McConnell (R-Ky.) said of Putin on Sunday on CNN’s “State of the Union.” “The Russians annexed Crimea, invaded Ukraine and messed around in our elections. No, I don’t think there’s any equivalency between the way the Russians conduct themselves and the way the United States does.”

Well, there is that, But putting the sacredness of American exceptionalism to one side, here is what Aardvark thinks. He thinks that Trump is delusional, and that he is remarkably candid about his delusions.

I believe that Trump would love nothing better than to kill some journalists and political opponents. Whether he will try to do it, I cannot say. I certainly hope not. But I think that in his delusional mind, Trump sincerely believes has moral justification to assassinate some people who, in his way of thinking, need killing.

Now I am neither a mind reader nor a clinical psychologist. Lacking those skills, I substitute the application of the Rational Fascist Test, or, What Would Mussolini Do? (You may, if you wish, substitute Machiavelli for Mussolini.)

Would a rational fascist be so candid about his hopes and intentions? No, he would not. In the present circumstances, the rational fascist would be much more subtle about his plans.

Or at least that is what I think. As we proceed day by day, let us continue to apply the Rational Fascist Test to try to learn whether there is a method in the madness, or just madness.


Justice Has Triumphed. Recommend Urgent Appeal.


It’s Sunday morning, February 5. In the wee hours of last night, two members of a three judge Ninth Circuit panel, having had the opportunity to read a lengthy government brief,  (1) temporarily denied the government’s emergency motion to overturn so-called Judge Robart’s injunction, and (2) ordered the plaintiff states to reply by midnight tonight, Pacific time, with the government to reply to the reply by 3:00 PM on Monday, also Pacific time.

For those of you who might be confused by time zones, that’s 3:00 AM Monday and 6:00 PM Monday, World Time.

I expect we will see a decision on Monday evening or some time Tuesday. I make no prediction about which side will win.

The government’s opening brief was plainly written by the varsity team and is well crafted. It takes the same approach Aardvark would take, were he tasked with the detestible obligation to justify Trump. Rather than trying to defend the actual necessity for the executive order, the brief hops up and down about separation of powers, judicial second guessing of national security determinations, and wide legal authority to bar any “class of aliens” that the President deems, in his unfettered discretion, to pose a threat to national security.

Abstract arguments of that nature beg to be tested by hypothetical questions.

So, Mr. Government Counsel, the President can bar all Muslims if he deems all Muslims to be a threat, is that your position?

So, Mr. Government Counsel, the President could bar all black immigrants if he somehow determines that black folks are a threat, is that your position?

Though they are unlikely to take counsel from Aardvark, he is confident that the same kinds of thoughts will occur to the panel. Again, I make no prediction about the outcome.

The panel, by the way, consists of three judges appointed, respectively, by so-called Presidents, Carter, Bush Junior, and Obama. Mr. Bush Junior appointee did not sign his name to last night’s order. It is not known whether that’s because he disagreed with it, or, perhaps, because, like Aardvark, last night he was enjoying a visit with his good friend Jack Daniels and was in no shape to read legal briefs.

Please Observer a Moment of Silence to Honor the Victims of the Bowling Green Massacre

Aardvark welcomes his new Aussie readers. G’day, mates. Because you live in a rational country, you will benefit from the following explanation. On Thursday Kellyanne Conway, Minster of Truth for the new administration, bereated the lamestream media for their failure to report the Bowling Green Massacre.

“I bet it’s brand new information to people that President Obama had a six-month ban on the Iraqi refugee program after two Iraqis came here to this country, were radicalized and were the masterminds behind the Bowling Green massacre,” she said. “Most people don’t know that because it didn’t get covered.”

Please join your American brethren in a moment of silence in honor of the victims of the Bowling Green Massacre, which never occurred.