#wall street journal

[dreaminginthedeepsouth]

LETTERS FROM AN AMERICAN

November 20, 2024

Heather Cox Richardson

Nov 20, 2024

Remember how American voters so hated Project 2025, the playbook for a second Trump term written by the Heritage Foundation and other right-wing institutions, that Trump said he had nothing to do with it, and then one of its key architects, Russell Vought, told undercover filmmakers that Trump was only running away from the project as political cover? 

It appears Vought was right and the story that Trump had nothing to do with Project 2025 was, indeed, just political cover. Ed O’Keefe and Major Garrett of CBS News reported today that two sources close to the Trump transition team have told them that they expect Trump to name Vought to lead the Office of Management and Budget (OMB). 

Vought wrote the section of Project 2025 that covers the presidency, calling for “aggressive use of the vast powers of the executive branch” to “bend or break the bureaucracy to the presidential will” and identifying the OMB as the means of enforcing the president’s agenda. Vought was Trump’s OMB director during the end of his first term and tried to remove the civil service protections that have been in place since 1883 to protect federal workers from being fired for political reasons. That plan, known as Schedule F, would have affected about 88% of the federal workforce. 

One of the first things Biden did when he took office was to rescind Trump’s executive order making that shift.

Like that earlier attempt, Project 2025 leans heavily on the idea that “personnel is policy,” and that idea illuminates the choices the Trump team is making. Trump has refused to sign the official documents required by the 2022 Presidential Transition Act. Those documents mandate ethics commitments and require the incoming president to disclose private donations. They also limit those donations. Without the paperwork, Trump appointees cannot start the process of getting security clearances through the Federal Bureau of Investigation; the team says it is planning to do its own vetting of its candidates instead.  

Claiming they have a mandate, Trump’s people have said they are launching “a hostile takeover” of the American government “on behalf of the American people.” But as voting numbers continue to come in, Trump’s majority has fallen below 50% of voters, meaning that more voters chose someone else than chose Trump on November 5. These results are far from being in “mandate” territory.

The U.S. Constitution charges Congress with writing the laws under which the American people live, and the president with taking “care that the laws be faithfully executed.” Since 1933, Congress has created an extensive system of agencies that regulate business and provide a basic social safety net. Congress will say, for example, that the U.S. needs an agency to protect the environment (like the Environmental Protection Agency, established under Republican president Richard M. Nixon), appropriate money for it, oversee its leadership, and then trust those leaders to hire the personnel necessary to carry out its mission. 

Regulations and social welfare programs and the agencies that provide them are broadly popular—think how hard it has been for members to get rid of Social Security, for example—so Congress trims at the edges rather than abolishing them. As the U.S. budget has grown, they often bear the brunt of accusations that the government spends too much, although what has really caused the budget to operate deeply in the red is the tax cuts for the wealthy put into place by Presidents George W. Bush and Donald Trump.  

Right-wing leaders who want to continue cutting regulations and taxes are newly empowered by Trump’s victory in the 2024 election, and they are turning to a quirk of the government to enable them to work around Congress. 

Since the first administration of President George Washington, agencies created by Congress have lived in the Executive Branch. If, as Vought and others argue, the president is the absolute authority in that branch, Trump can do whatever he wants with those agencies and the civil servants—the bureaucrats—who run them.  

In an op-ed in the Wall Street Journal today, billionaires Elon Musk and Vivek Ramaswamy laid out their plans for cutting the U.S. government. Neither of them has ever held elected office, but they see that as an advantage, not a downside: “We are entrepreneurs, not politicians,” they write. “We will serve as outside volunteers, not federal officials or employees.” Trump has named them to the “Department of Government Efficiency,” or DOGE. Despite the “department” name, DOGE is not an official government agency—which would require ethics disclosures—but rather an advisory panel. 

Their op-ed begins by redefining congressional authority to create agencies to suggest that agencies are illegitimate. “Most government enforcement decisions and discretionary expenditures aren’t made by the democratically elected president or even his political appointees,” they write, “but by millions of unelected, unappointed civil servants within government agencies who view themselves as immune from firing thanks to civil-service protections.” This, they say, “imposes massive direct and indirect costs on taxpayers.” 

“Thankfully,” they continue, “we have a historic opportunity to solve the problem. On Nov. 5, voters decisively elected Donald Trump with a mandate for sweeping change, and they deserve to get it.”

While “politicians” have “abetted” an “entrenched and ever-growing bureaucracy,” they write, they will work with the OMB to identify regulations that, they claim, Trump can issue an executive order to stop enforcing. “This would liberate individuals and businesses from illicit regulations never passed by Congress and stimulate the U.S. economy,” they write. Should Trump want to cut things that Congress wants to fund, they claim that Trump will simply refuse to spend those appropriations, challenging the 1974 Impoundment Control Act that declared such withholding illegal. 

Musk and Ramaswamy reiterated their support for cutting programs that are not currently authorized, although budget experts note that such a lapse is a tool to permit adjustments to programs Congress has, in fact, authorized and have also pointed out that one of the top items on that list is health care for veterans. Cuts to all these programs will naturally mean extensive cuts to the federal workforce. 

“With a decisive electoral mandate and a 6–3 conservative majority on the Supreme Court,” they write, “DOGE has a historic opportunity for structural reductions in the federal government. We are prepared for the onslaught from entrenched interests in Washington. We expect to prevail. Now is the moment for decisive action.” 

They conclude by asserting that “[t]here is no better birthday gift to our nation on its 250th anniversary than to deliver a federal government that would make our Founders proud,” which is one heck of a conclusion to a blueprint for taking the power of American lawmaking from the Congress, where the Framers put it, and delivering it into the hands of an extraordinarily powerful president acting on the advice of two unelected billionaires, one of whom wasn’t born in the United States.  

In the vein of getting rid of regulations, today the chief executive of Delta Air Lines said he expected the Trump administration would be a “breath of fresh air” after the Biden administration’s consumer-protection laws that he called government “overreach.” 

Meanwhile, in Washington, the Senate has been confirming President Joe Biden’s judicial nominees, with the absence of Republican senators making the confirmations easier.

LETTERS FROM AN AMERICAN

HEATHER COX RICHARDSON

[mostlysignssomeportents]

Why they're smearing Lina Khan

My god, they sure hate Lina Khan. This once-in-a-generation, groundbreaking, brilliant legal scholar and fighter for the public interest, the slayer of Reaganomics, has attracted more vitriol, mockery, and dismissal than any of her predecessors in living memory.

She sure must be doing something right, huh?

A quick refresher. In 2017, Khan — then a law student — published Amazon’s Antitrust Paradox in the Yale Law Journal. It was a brilliant, blistering analysis showing how the Reagan-era theory of antitrust (which celebrates monopolies as “efficient”) had failed on its own terms, using Amazon as Exhibit A of the ways in which post-Reagan antitrust had left Americans vulnerable to corporate abuse:

https://www.yalelawjournal.org/note/amazons-antitrust-paradox

The paper sent seismic shocks through both legal and economic circles, and goosed the neo-Brandeisian movement (sneeringly dismissed as “hipster antitrust”). This movement is a rebuke to Reaganomics, with its celebration of monopolies, trickle-down, offshoring, corporate dark money, revolving-door regulatory capture, and companies that are simultaneously too big to fail and too big to jail.

This movement has many proponents, of course — not just Khan — but Khan’s careful scholarship, combined with her encyclopedic knowledge of the long-dormant statutory powers that federal agencies had to make change, and a strategy for reviving those powers to protect Americans from corporate predators made her a powerful, inspirational figure.

When Joe Biden won the 2020 presidential election, he surprised everyone by appointing Khan to the FTC. It wasn’t just that she had such a radical vision — it was also that she lacked the usual corporate law experience that such an appointee would normally require (experience that would ensure that the FTC was helmed by people whose default view of the world is that it should be structured and regulated by powerful, wealthy people in corporate boardrooms).

Even more surprising was that Khan was made chair of the FTC, something that was only possible because a few Republican Senators broke with their party to support her candidacy:

https://www.senate.gov/legislative/LIS/roll_call_votes/vote1171/vote_117_1_00233.htm

These Republicans saw in Khan an ally in their fight against “woke” Big Tech. For these senators, the problem wasn’t that tech had got too big and powerful — it was that there were a few limited instances in which tech leaders failed to wield that power in the ways they preferred.

The Republican project is a matter of getting turkeys to vote for Christmas by doing a lot of culture war bullshit, cruelly abusing disfavored sexual and racial minorities. This wins support from low-information voters who’ll vote against their class interests and support more monopolies, more tax cuts for the rich, and more cuts to the services they rely on.

But while tech leaders are 100% committed to the project of permanent oligarchic takeover of every sphere of American life, they are less full-throated in their support for hateful, cruel discrimination against disfavored minorities (in this regard, tech leaders resemble the corporate wing of the Democrats, which is where we get the “Silicon Valley is a Democratic Party stronghold” narrative).

This failure to unquestioningly and unstintingly back culture war bullshit put tech leaders in the GOP’s crosshairs. Some GOP politicians actually believe in the culture war bullshit, and are grossly offended that tech is “woke.” Others are smart enough not to get high on their own supply, but worry that any tech obstruction in the bullshit culture wars will make it harder to get sufficient turkey votes for a big fat Christmas surprise.

Biden’s ceding of antitrust policy to the left wing of the party, combined with disaffected GOP senators viewing Khan as their enemy’s enemy, led to Khan’s historic appointment as FTC Chair. In that position, she was joined by a slate of Biden trustbusters, including Jonathan Kanter at the DoJ Antitrust Division, Tim Wu at the White House, and other important, skilled and principled fighters like Alvaro Bedoya (FTC), Rebecca Slaughter (FTC), Rohit Chopra (CFPB), and many others.

Crucially, these new appointees weren’t just principled, they were good at their jobs. In 2021, Tim Wu wrote an executive order for Biden that laid out 72 concrete ways in which the administration could act — with no further Congressional authorization — to blunt corporate power and insulate the American people from oligarchs’ abusive and extractive practices:

https://pluralistic.net/2021/08/13/post-bork-era/#manne-down

Since then, the antitrust arm of the Biden administration have been fuckin’ ninjas, Getting Shit Done in ways large and small, working — for the first time since Reagan — to protect Americans from predatory businesses:

https://pluralistic.net/2022/10/18/administrative-competence/#i-know-stuff

This is in marked contrast to the corporate Dems’ champions in the administration. People like Pete Buttigieg are heralded as competent technocrats, “realists” who are too principled to peddle hopium to the base, writing checks they can’t cash. All this is cover for a King Log performance, in which Buttigieg’s far-reaching regulatory authority sits unused on a shelf while a million Americans are stranded over Christmas and whole towns are endangered by greedy, reckless rail barons straight out of the Gilded Age:

https://pluralistic.net/2023/01/10/the-courage-to-govern/#whos-in-charge

The contrast between the Biden trustbusters and their counterparts from the corporate wing is stark. While the corporate wing insists that every pitch is outside of the zone, Khan and her allies are swinging for the stands. They’re trying to make life better for you and me, by declaring commercial surveillance to be an unfair business practice and thus illegal:

https://pluralistic.net/2022/08/12/regulatory-uncapture/#conscious-uncoupling

And by declaring noncompete “agreements” that shackle good workers to shitty jobs to be illegal:

https://pluralistic.net/2022/02/02/its-the-economy-stupid/#neofeudal

And naturally, this has really pissed off all the right people: America’s billionaires and their cheerleaders in the press, government, and the hive of scum and villainy that is the Big Law/thinktank industrial-complex.

Take the WSJ: since Khan took office, they have published 67 vicious editorials attacking her and her policies. Khan is living rent-free in Rupert Murdoch’s head. Not only that, he’s given her the presidential suite! You love to see it.

These attacks are worth reading, if only to see how flimsy and frivolous they are. One major subgenre is that Khan shouldn’t be bringing any action against Amazon, because her groundbreaking scholarship about the company means she has a conflict of interest. Holy moly is this a stupid thing to say. The idea that the chair of an expert agency should recuse herself because she is an expert is what the physicists call not even wrong.

But these attacks are even more laughable due to who they’re coming from: people who have the most outrageous conflicts of interest imaginable, and who were conspicuously silent for years as the FTC’s revolving door admitted the a bestiary of swamp-creatures so conflicted it’s a wonder they managed to dress themselves in the morning.

Writing in The American Prospect, David Dayen runs the numbers:

Since the late 1990s, 31 out of 41 top FTC officials worked directly for a company that has business before the agency, with 26 of them related to the technology industry.

https://prospect.org/economy/2023-06-23-attacks-lina-khans-ethics-reveal-projection/

Take Christine Wilson, a GOP-appointed FTC Commissioner who quit the agency in a huff because Khan wanted to do things for the American people, and not their self-appointed oligarchic princelings. Wilson wrote an angry break-up letter to Khan that the WSJ published, presaging their concierge service for Samuel Alito:

https://www.wsj.com/articles/why-im-resigning-from-the-ftc-commissioner-ftc-lina-khan-regulation-rule-violation-antitrust-339f115d

For Wilson to question Khan’s ethics took galactic-scale chutzpah. Wilson, after all, is a commissioner who took cash money from Bristol-Myers Squibb, then voted to approve their merger with Celgene:

https://www.documentcloud.org/documents/4365601-Wilson-Christine-Smith-final278.html

Or take Wilson’s GOP FTC predecessor Josh Wright, whose incestuous relationship with the companies he oversaw at the Commission are so intimate he’s practically got a Habsburg jaw. Wright went from Google to the US government and back again four times. He also lobbied the FTC on behalf of Qualcomm (a major donor to Wright’s employer, George Mason’s Antonin Scalia Law School) after working “personally and substantially” while serving at the FTC.

George Mason’s Scalia center practically owns the revolving door, counting fourteen FTC officials among its affliates:

https://campaignforaccountability.org/ttp-investigation-big-techs-backdoor-to-the-ftc/

Since the 1990s, 31 out of 41 top FTC officials — both GOP appointed and appointees backed by corporate Dems — “worked directly for a company that has business before the agency”:

https://www.citizen.org/article/ftc-big-tech-revolving-door-problem-report/

The majority of FTC and DoJ antitrust lawyers who served between 2014–21 left government service and went straight to work for a Big Law firm, serving the companies they’d regulated just a few months before:

https://therevolvingdoorproject.org/wp-content/uploads/2022/06/The-Revolving-Door-In-Federal-Antitrust-Enforcement.pdf

Take Deborah Feinstein, formerly the head of the FTC’s Bureau of Competition, now a partner at Arnold & Porter, where she’s represented General Electric, NBCUniversal, Unilever, and Pepsi and a whole medicine chest’s worth of pharma giants before her former subordinates at the FTC. Michael Moiseyev who was assistant manager of FTC Competition is now in charge of mergers at Weil Gotshal & Manges, working for Microsoft, Meta, and Eli Lilly.

There’s a whole bunch more, but Dayen reserves special notice for Andrew Smith, Trump’s FTC Consumer Protection boss. Before he was put on the public payroll, Smith represented 120 clients that had business before the Commission, including “nearly every major bank in America, drug industry lobbyist PhRMA, Uber, Equifax, Amazon, Facebook, Verizon, and a variety of payday lenders”:

https://www.citizen.org/sites/default/files/andrew_smith_foia_appeal_response_11_30.pdf

Before Khan, in other words, the FTC was a “conflict-of-interest assembly line, moving through corporate lawyers and industry hangers-on without resistance for decades.”

Khan is the first FTC head with no conflicts. This leaves her opponents in the sweaty, desperate position of inventing conflicts out of thin air.

For these corporate lickspittles, Khan’s “conflict” is that she has a point of view. Specifically, she thinks that the FTC should do its job.

This makes grifters like Jim Jordan furious. Yesterday, Jordan grilled Khan in a hearing where he accused her of violating an ethics official’s advice that she should recuse herself from Big Tech cases. This is a talking point that was created and promoted by Bloomberg:

https://www.bloomberg.com/news/articles/2023-06-16/ftc-rejected-ethics-advice-for-khan-recusal-on-meta-case

That ethics official, Lorielle Pankey, did not, in fact, make this recommendation. It’s simply untrue (she did say that Khan presiding over cases that she has made public statements about could be used as ammo against her, but did not say that it violated any ethical standard).

But there’s more to this story. Pankey herself has a gigantic conflict of interest in this case, including a stock portfolio with $15,001 and $50,000 in Meta stock (Meta is another company that has whined in print and in its briefs that it is a poor defenseless lamb being picked on by big, mean ole Lina Khan):

https://www.wsj.com/articles/ethics-official-owned-meta-stock-while-recommending-ftc-chair-recuse-herself-from-meta-case-8582a83b

Jordan called his hearing on the back of this fake scandal, and then proceeded to show his whole damned ass, even as his GOP colleagues got into a substantive and even informative dialog with Khan:

https://prospect.org/power/2023-07-14-jim-jordan-misfires-attacks-lina-khan/

Mostly what came out of that hearing was news about how Khan is doing her job, working on behalf of the American people. For example, she confirmed that she’s investigating OpenAI for nonconsensually harvesting a mountain of Americans’ personal information:

https://www.ft.com/content/8ce04d67-069b-4c9d-91bf-11649f5adc74

Other Republicans, including confirmed swamp creatures like Matt Gaetz, ended up agreeing with Khan that Amazon Ring is a privacy dumpster-fire. Nobodies like Rep TomM assie gave Khan an opening to discuss how her agency is protecting mom-and-pop grocers from giant, price-gouging, greedflation-drunk national chains. Jeff Van Drew gave her a chance to talk about the FTC’s war on robocalls. Lance Gooden let her talk about her fight against horse doping.

But Khan’s opponents did manage to repeat a lot of the smears against her, and not just the bogus conflict-of-interest story. They also accused her of being 0–4 in her actions to block mergers, ignoring the huge number of mergers that have been called off or not initiated because M&A professionals now understand they can no longer expect these mergers to be waved through. Indeed, just last night I spoke with a friend who owns a medium-sized tech company that Meta tried to buy out, only to withdraw from the deal because their lawyers told them it would get challenged at the FTC, with an uncertain outcome.

These talking points got picked up by people commenting on Judge Jacqueline Scott Corley’s ruling against the FTC in the Microsoft-Activision merger. The FTC was seeking an injunction against the merger, and Corley turned them down flat. The ruling was objectively very bad. Start with the fact that Corley’s son is a Microsoft employee who stands reap massive gains in his stock options if the merger goes through.

But beyond this (real, non-imaginary, not manufactured conflict of interest), Corley’s judgment and her remarks in court were inexcusably bad, as Matt Stoller writes:

https://www.thebignewsletter.com/p/judge-rules-for-microsoft-mergers

In her ruling, Corley explained that she didn’t think Microsoft would abuse the market dominance they’d gain by merging their giant videogame platform and studio with one of its largest competitors. Why not? Because Microsoft’s execs pinky-swore that they wouldn’t abuse that power.

Corely’s deference to Microsoft’s corporate priorities goes deeper than trusting its execs, though. In denying the FTC’s motion, she stated that it would be unfair to put the merger on hold in order to have a full investigation into its competition implications because Microsoft and Activision had set a deadline of July 18 to conclude things, and Microsoft would have to pay a penalty if that deadline passed.

This is surreal: a judge ruled that a corporation’s radical, massive merger shouldn’t be subject to full investigation because that corporation itself set an arbitrary deadline to conclude the deal before such an investigation could be concluded. That’s pretty convenient for future mega-mergers — just set a short deadline and Judge Corely will tell regulators that the merger can’t be investigated because the deadline is looming.

And this is all about the future. As Stoller writes, Microsoft isn’t exactly subtle about why it wants this merger. Its own execs said that the reason they were spending “dump trucks” of money buying games studios was to “spend Sony out of business.”

Now, maybe you hate Sony. Maybe you hate Activision. There’s plenty of good reason to hate both — they’re run by creeps who do shitty things to gamers and to their employees. But if you think that Microsoft will be better once it eliminates its competition, then you have the attention span of a goldfish on Adderall.

Microsoft made exactly the same promises it made on Activision when it bought out another games studio, Zenimax — and it broke every one of those promises.

Microsoft has a long, long, long history of being a brutal, abusive monopolist. It is a convicted monopolist. And its bad conduct didn’t end with the browser wars. You remember how the lockdown turned all our homes into rent-free branch offices for our employers? Microsoft seized on that moment to offer our bosses keystroke-and-click level surveillance of our use of our own computers in our own homes, via its Office365 bossware product:

https://pluralistic.net/2020/11/25/the-peoples-amazon/#clippys-revenge

If you think a company that gave your boss a tool to spy on their employees and rank them by “productivity” as a prelude to firing them or cutting their pay is going to treat gamers or game makers well once they have “spent the competition out of business,” you’re a credulous sucker and you are gonna be so disappointed.

The enshittification play is obvious: use investor cash to make things temporarily nice for customers and suppliers, lock both of them in — in this case, it’s with a subscription-based service similar to Netflix’s — and then claw all that value back until all that’s left is a big pile of shit.

The Microsoft case is about the future. Judge Corely doesn’t take the future seriously: as she said during the trial, “All of this is for a shooter videogame.” The reason Corely greenlit this merger isn’t because it won’t be harmful — it’s because she doesn’t think those harms matter.

But it does, and not just because games are an art form that generate billions of dollars, employ a vast workforce, and bring pleasure to millions. It also matters because this is yet another one of the Reaganomic precedents that tacitly endorses monopolies as efficient forces for good. As Stoller writes, Corley’s ruling means that “deal bankers are sharpening pencils and saying ‘Great, the government lost! We can get mergers through everywhere else.’ Basically, if you like your high medical prices, you should be cheering on Microsoft’s win today.”

Ronald Reagan’s antitrust has colonized our brains so thoroughly that commentators were surprised when, immediately after the ruling, the FTC filed an appeal. Don’t they know they’ve lost? the commentators said:

https://gizmodo.com/ftc-files-appeal-of-microsoft-activision-deal-ruling-1850640159

They echoed the smug words of insufferable Activision boss Mike Ybarra: “Your tax dollars at work.”

https://twitter.com/Qwik/status/1679277251337277440

But of course Khan is appealing. The only reason that’s surprising is that Khan is working for us, the American people, not the giant corporations the FTC is supposed to be defending us from. Sure, I get that this is a major change! But she needs our backing, not our cheap cynicism.

The business lobby and their pathetic Renfields have hoarded all the nice things and they don’t want us to have any. Khan and her trustbuster colleagues want the opposite. There is no measure so small that the corporate world won’t have a conniption over it. Take click to cancel, the FTC’s perfectly reasonable proposal that if you sign up for a recurring payment subscription with a single click, you should be able to cancel it with a single click.

The tooth-gnashing and garment-rending and scenery-chewing over this is wild. America’s biggest companies have wheeled out their biggest guns, claiming that if they make it too easy to unsubscribe, they will lose money. In other words, they are currently making money not because people want their products, but because it’s too hard to stop paying for them!

https://www.theregister.com/2023/07/12/ftc_cancel_subscriptions/

We shouldn’t have to tolerate this sleaze. And if we back Khan and her team, they’ll protect us from these scams. Don’t let them convince you to give up hope. This is the start of the fight, not the end. We’re trying to reverse 40 years’ worth of Reagonmics here. It won’t happen overnight. There will be setbacks. But keep your eyes on the prize — this is the most exciting moment for countering corporate power and giving it back to the people in my lifetime. We owe it to ourselves, our kids and our planet to fight one.

If you’d like an essay-formatted version of this post to read or share, here’s a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:

https://pluralistic.net/2023/07/14/making-good-trouble/#the-peoples-champion

[Image ID: A line drawing of pilgrims ducking a witch tied to a ducking stool. The pilgrims' clothes have been emblazoned with the logos for the WSJ, Microsoft, Activision and Blizzard. The witch's face has been replaced with that of FTC chair Lina M Khan.]

[asteroidtroglodyte]

You know, this reminds me of something

Ah, yes.

[deadthehype]

Angel Reese & A'ja Wilson in WSJ Magazine November 2024 issue. Photographed by Stef Mitchell.

[simply-ivanka]

Trump’s Trial Violated Due Process

Trump was denied notice of the charges, meaningful opportunity to respond and proof of all elements.

By 

David B. Rivkin Jr. and Elizabeth Price Foley

Wall Street Journal

Whether you love, hate or merely tolerate Donald Trump, you should care about due process, which is fundamental to the rule of law. New York’s trial of Mr. Trump violated basic due-process principles.

“No principle of procedural due process is more clearly established than that notice of the specific charge,” the Supreme Court stated in Cole v. Arkansas (1948), “and a chance to be heard in a trial of the issues raised by that charge, if desired, [is] among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal.” In in re Winship (1970), the justices affirmed that “the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” These three due-process precepts—notice, meaningful opportunity to defend, and proof of all elements—were absent in Mr. Trump’s trial.

The state offense with which Mr. Trump was indicted, “falsifying business records,” requires proof of an “intent to defraud.” To elevate this misdemeanor to a felony, the statute requires proof of “intent to commit another crime.” In People v. Bloomfield (2006), the state’s highest court observed that “intent to commit another crime” is an indispensable element of the felony offense.

New York courts have concluded that the accused need not be convicted of the other crime since an “intent to commit” it is sufficient to satisfy the statute. But because that intent is, in the words of Winship, “a fact necessary to constitute the crime,” it is an element of felony falsification. Due process requires that the defendant receive timely notice of the other crime he allegedly intended to commit. It also requires that he have opportunity to defend against that accusation and that prosecutors prove beyond a reasonable doubt his intent to commit it.

Mr. Trump’s indictment didn’t specify the other crime he allegedly intended to commit. Prosecutors didn’t do so during the trial either. Only after the evidentiary phase of the trial did Judge Juan Merchan reveal that the other crime was Section 17-152 of New York’s election law, which makes it a misdemeanor to engage in a conspiracy “to promote or prevent the election of any person to a public office by unlawful means.”

To recap, the prosecution involved (1) a misdemeanor elevated to a felony based on an “intent to commit another crime,” (2) an indictment and trial that failed to specify, or present evidence establishing, another crime the defendant intended to commit, and (3) a jury instruction that the other crime was one that necessitated further proof of “unlawful means.” It’s a Russian-nesting-doll theory of criminality: The charged crime hinged on the intent to commit another, unspecified crime, which in turn hinged on the actual commission of yet another unspecified offense.

To make matters worse, Judge Merchan instructed the jury: “Although you must conclude unanimously that the defendant conspired to promote or prevent the election of any person to a public office by unlawful means, you need not be unanimous as to what those unlawful means were.”

Due process demands that felony verdicts be unanimous, but in Schad v. Arizona (1991), a murder case, the high court indicated that there need not be unanimity regarding the means by which a crime is committed. But a plurality opinion by Justice David Souter cautioned that if the available means of committing a crime are so capacious that the accused is not “in a position to understand with some specificity the legal basis of the charge against him,” due process will be violated. “Nothing in our history suggests that the Due Process Clause would permit a State to convict anyone under a charge of ‘Crime’ so generic that any combination of jury findings of embezzlement, reckless driving, murder, burglary, tax evasion, or littering, for example, would suffice for conviction,” Justice Souter wrote.

Justice Antonin Scalia concurred, observing that “one can conceive of novel ‘umbrella’ crimes (a felony consisting of either robbery or failure to file a tax return) where permitting a 6-to-6 verdict would seem contrary to due process.” Four dissenting justices argued that the In re Winship precedent requires unanimity regarding all elements of a crime, including the means by which it’s committed.

All nine justices in Schad, then, believed unanimity is required to convict when the means by which a crime can be committed are so broad that the accused doesn’t receive fair notice of the basis of the charge. New York’s election law requires that the violation occur “by unlawful means,” so any “unlawful” act—including, in Scalia’s example, either robbery of failure to file a tax return—can qualify. That’s clearly overbroad. Thus, Judge Merchan’s instruction that the jury “need not be unanimous as to what those unlawful means were” was unconstitutional.

That isn’t all. Judge Merchan hand-selected three laws—federal election law, falsification of “other” business records and “violation of tax laws”—as the “unlawful means” by which state election law was violated. Mr. Trump received no notice of any of these offenses, and the prosecutor briefly alluded only to federal election law, during the trial. Mr. Trump tried to call former Federal Election Commission Chairman Brad Smith to explain why this law wasn’t violated, but Judge Merchan ruled Mr. Smith couldn’t testify on whether Mr. Trump’s conduct “does or does not constitute a violation” of federal election law, denying him a meaningful opportunity to be heard.

Judge Merchan’s second “unlawful” means, falsification of other business records, is circular: A misdemeanor becomes a felony if one falsifies business records by falsifying business records. Further, the prosecution never alleged or provided evidence that Mr. Trump falsified “other” business records. The prosecutors likewise neither alleged nor offered evidence that Mr. Trump had violated tax laws, Judge Merchan’s third predicate.

Mr. Trump, like all criminal defendants, was entitled to due process. The Constitution demands that higher courts throw out the verdict against him. That takes time, however, and is unlikely to occur before the election. That unfortunate reality will widen America’s political divide and fuel the suspicion that Mr. Trump’s prosecution wasn’t about enforcing the law but wounding a presidential candidate for the benefit of his opponent.

Mr. Rivkin served at the Justice Department and the White House Counsel’s Office during the Reagan and George H.W. Bush Administrations. Ms. Foley is a professor of constitutional law at Florida International University College of Law. Both practice appellate and constitutional law in Washington.

[vyorei]

The IOF's started fuckin seawater into the tunnel system despite it potentially hurting the freshwater supply

Not that 98% of it was even drinkable anyway but still

[beauty-funny-trippy]

⠀Donald Trump is trying to gaslight Americans. Don't be deceived. The International Monetary Fund says the United States has the strongest economy on the planet. We're the envy of the world!

[destiel-news-network]

(Source)

[eretzyisrael]

[makingdonalddrumpfagain]

[mackdaddyofthecravate]

If you see the Wall Street Journal article on the new Vince stuff MASSIVE trigger warnings there's some real awful shit in there.

Actually here's the link to the non paywalled ver. But please be warned it's p vile.

https://archive.ph/t5H3A

[digitalfountains]

Imaan Hammam by Nadine Ijewere

- Wall Street Journal, May 2022

[1111iza]

source

[simply-ivanka]

How the Biden-Harris Economy Left Most Americans Behind

A government spending boom fueled inflation that has crushed real average incomes.

By The Editorial Board -- Wall Street Journal

Kamala Harris plans to roll out her economic priorities in a speech on Friday, though leaks to the press say not to expect much different than the last four years. That’s bad news because the Biden-Harris economic record has left most Americans worse off than they were four years ago. The evidence is indisputable.

President Biden claims that he inherited the worst economy since the Great Depression, but this isn’t close to true. The economy in January 2021 was fast recovering from the pandemic as vaccines rolled out and state lockdowns eased. GDP grew 34.8% in the third quarter of 2020, 4.2% in the fourth, and 5.2% in the first quarter of 2021. By the end of that first quarter, real GDP had returned to its pre-pandemic high. All Mr. Biden had to do was let the recovery unfold.

Instead, Democrats in March 2021 used Covid relief as a pretext to pass $1.9 trillion in new spending. This was more than double Barack Obama’s 2009 spending bonanza. State and local governments were the biggest beneficiaries, receiving $350 billion in direct aid, $122 billion for K-12 schools and $30 billion for mass transit. Insolvent union pension funds received a $86 billion rescue.

The rest was mostly transfer payments to individuals, including a five-month extension of enhanced unemployment benefits, a $3,600 fully refundable child tax credit, $1,400 stimulus payments per person, sweetened Affordable Care Act subsidies, an increased earned income tax credit including for folks who didn’t work, housing subsidies and so much more.

The handouts discouraged the unemployed from returning to work and fueled consumer spending, which was already primed to surge owing to pent-up savings from the Covid lockdowns and spending under Donald Trump. By mid-2021, Americans had $2.3 trillion in “excess savings” relative to pre-pandemic levels—equivalent to roughly 12.5% of disposable income.

So much money chasing too few goods fueled inflation, which was supercharged by the Federal Reserve’s accommodative policy. Historically low mortgage rates drove up housing prices. The White House blamed “corporate greed” for inflation that peaked at 9.1% in June 2022, even as the spending party in Washington continued.

In November 2021, Congress passed a $1 trillion bill full of green pork and more money for states. Then came the $280 billion Chips Act and Mr. Biden’s Green New Deal—aka the Inflation Reduction Act—which Goldman Sachs estimates will cost $1.2 trillion over a decade. Such heaps of government spending have distorted private investment.

While investment in new factories has grown, spending on research and development and new equipment has slowed. Overall private fixed investment has grown at roughly half the rate under Mr. Biden as it did under Mr. Trump. Manufacturing output remains lower than before the pandemic.

Magnifying market misallocations, the Administration conditioned subsidies on businesses advancing its priorities such as paying union-level wages and providing child care to workers. It also boosted food stamps, expanded eligibility for ObamaCare subsidies and waved away hundreds of billions of dollars in student debt. The result: $5.8 trillion in deficits during Mr. Biden’s first three years—about twice as much as during Donald Trump’s—and the highest inflation in four decades.

Prices have increased by nearly 20% since January 2021, compared to 7.8% during the Trump Presidency. Inflation-adjusted average weekly earnings are down 3.9% since Mr. Biden entered office, compared to an increase of 2.6% during Mr. Trump’s first three years. (Real wages increased much more in 2020, but partly owing to statistical artifacts.)

Higher interest rates are finally bringing inflation under control, which is allowing real wages to rise again. But the Federal Reserve had to raise rates higher than it otherwise would have to offset the monetary and fiscal gusher. The higher rates have pushed up mortgage costs for new home buyers.

Three years of inflation and higher interest rates are stretching American pocketbooks, especially for lower income workers. Seriously delinquent auto loans and credit cards are higher than any time since the immediate aftermath of the 2008-09 recession.

Ms. Harris boasts that the economy has added nearly 16 million jobs during the Biden Presidency—compared to about 6.4 million during Mr. Trump’s first three years. But most of these “new” jobs are backfilling losses from the pandemic lockdowns. The U.S. has fewer jobs than it was on track to add before the pandemic.

What’s more, all the Biden-Harris spending has yielded little economic bang for the taxpayer buck. Washington has borrowed more than $400,000 for every additional job added under Mr. Biden compared to Mr. Trump’s first three years. Most new jobs are concentrated in government, healthcare and social assistance—60% of new jobs in the last year.

Administrative agencies are also creating uncertainty by blitzing businesses with costly regulations—for instance, expanding overtime pay, restricting independent contractors, setting stricter emissions limits on power plants and factories, micro-managing broadband buildout and requiring CO2 emissions calculations in environmental reviews.

The economy is still expanding, but business investment has slowed. And although the affluent are doing relatively well because of buoyant asset prices, surveys show that most Americans feel financially insecure. Thus another political paradox of the Biden-Harris years: Socioeconomic disparities have increased.

Ms. Harris is promising the same economic policies with a shinier countenance. Don’t expect better results.

[the-garbanzo-annex-jr]

Source

[k-wame]

JFC