Jack Doppelt
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| Kaleidoscope of dots [Image: Part of Mandelbrot set - Smily Kaleidoscope- Creative Commons |
Jack Doppelt
![]() |
| Kaleidoscope of dots [Image: Part of Mandelbrot set - Smily Kaleidoscope- Creative Commons |
Jack Doppelt
Feb. 9, 2021
Again, I’m watching Fox News’ coverage, as I did on Jan. 6. I’m not watching to be convinced whether or not Trump should be convicted on one count of "incitement of insurrection" for encouraging the Jan. 6 riot at the U.S. Capitol. That’s about Trump.
I’m watching to fathom one underlying question that will define our futures as a nation: Where does "the right" get the stuff that has them believing dangerous nonsense? Of course, the media, including social media, propel this stuff. Yet, what stuff catches fire and why?
A primer on one place where the right gets this stuff can be found in one program that aired the day before today’s impeachment trial. It aired on Newsmax, a fellow right wing network that is giving Fox News a run for its ratings.
Co-hosts Sean Spicer (yes, that Sean Spicer) and Lindsay Keith interviewed Alan Dershowitz, whom they welcomed as a constitutional scholar, legal professor at Harvard and “author of a million books.” Bona fides to impress.
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| Newsmax-Feb. 8, 2021 |
Dershowitz was on the team of lawyers who represented Trump at his first Senate impeachment trial. His novel argument in that hearing was that if Trump believed he was acting both in his own political interest -- and at the same time in the country’s interest in withholding military aid to Ukraine until Ukraine announced an investigation into then-former Vice President Biden -- those actions cannot be impeachable. As he put it, "If a president does something which he believes will help him get elected in the public interest, that cannot be the kind of quid pro quo that results in impeachment," he argued. The irony was that his argument, laughably bizarre as it was, seemed to be what caught on with the GOP and the right. Bona fides enhanced.
Spicer and Keith last night gushed over every word of Dershowitz. At the end of the interview, they thanked him for breaking things down so the audience could get the answers as they try to make sense of the impending impeachment trial.
The simple answers Dershowitz divined were these:
Trump can’t be impeached for speech. He claimed that Trump’s speech was no different from other speech, which of course is protected by the 1st Amendment. He went into professed con law mode by conceding at least that speech can go beyond 1st Amendment protection when it is “directed to inciting or producing imminent lawless action” and is “likely to incite or produce such action.”
The issue clearly is whether Trump’s speech in the context of the election fraud buildup he harnessed for his electoral college day rally did that. Dershowitz pointed to the 1969 Brandenburg case about a Ku Klux Klan rally in Ohio to make his distorted points. He failed to say that the landmark holding in the case was directed at an Ohio law that went too far in limiting speech. In striking down a clearly over-broad Ohio law, the case rejected a doctrine that emerged from WWI called “clear and present danger.”
The justices in Brandenburg were struggling with the line that preserves the advocacy of abstract ideas but can punish speech that incites imminent lawless action. Justice William O. Douglas recalled the words of Oliver Wendell Holmes who wrote prophetically in 1925: “Every idea is an incitement. It offers itself for belief and if believed it is acted on unless some other belief outweighs it or some failure of energy stifles the movement at its birth.” The justices warned: “Eloquence may set fire to reason… If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.”
Without needing to refer to Trump’s incitement as eloquent, it had the power to “set fire to reason.” The incited Trumpers came to DC because he had provoked them “to stop the steal.” Still, they all had time to resort to their perverted reasoning in coming to DC or attending the rally. That took time. Trump’s persuasiveness had won those days with them, as his persuasiveness had attracted 74 million votes. That’s speech, and as the justices put it, “government has no power to invade that sanctuary of belief and conscience.”
Once in DC with Trump ranting persuasively to his MAGAs, did he incite them to commit “imminent lawless action” and was action likely to happen?
That’s where the virtues and ambiguities of the videos of Jan. 6 leave us. That’s what makes Jan. 6 and Trump unique, as they should be. We shouldn’t be impeaching or punishing impassioned speakers?
Dershowitz actually claimed that Trump couldn’t have intended to incite “imminent lawless action” that was likely to happen. After all, as Dershowitz conjured, “most of the people who heard the president didn’t even go to the Capitol, most of the people who went to the Capitol didn’t go inside, most of the people who went inside didn’t destroy property, and hardly anybody killed people.”
Apparently, it can’t be intended incitement to “imminent lawless action” if not everyone is fomented to act instinctively, lawlessly, violently and murderously? Pardon?
Imminent lawless action needn’t result in people being killed. Though it did. Invading the Capitol, threatening people, destroying property, putting lawmakers, their staffs and their families in fear of their lives will do just fine. Watch the videos. Hundreds did that.
Many of the lawbreakers chanted: “Stop the steal.” “Treason.” Defend your Constitution.” “Fight for Trump.” Listen to the videos.
Trump had pledged as he dispatched his followers to the Capitol: “We’re gonna walk down to the Capitol and I’ll be there with you.” He must have gotten waylaid after that. Like any ersatz movement leader, he abandoned them to march on their own. What good are lambs if they need to be accompanied to the slaughter?
Dershowitz wants the right to believe that the impeachment trial is about run-of-the-mill speech, the kind that, as he puts it, could result in political activists from the right or left put at risk of government encroachment.
Even more scary, Dershowitz envisions, is to allow impeachment any time an office holder leaves office. Who’s next, Nikki Haley? Be very worried, Republicans. Bill Clinton? Could happen to you, Dems. Dershowitz knows a straw man when he creates one.
Trump is being impeached for actions he took and actions he fomented while he was president, not years before or after.
To the credit of Democratic impeachment managers, they opened today’s proceedings by re-framing what the Dershowitzes and right wing “thinkers” call the unconstitutionality of impeaching a former official.
What it really would be providing is a January exception that would allow a Trump-sort to do whatever he wants with impunity in the final days in office to prevent accountability because days later, he’s no longer in office. As we all know, Donald Trump would never reserve audacious acts like rampant pardonings until the final days in office.
Dershowitz reserved his most virulent pent up anger yesterday for his legal scholar colleagues, led by his nemesis and Harvard colleague Laurence Tribe. Dershowitz seemed to hanker for a food fight with Tribe. To Dershowitz, the difference between himself and the Tribes of the legal establishment is that he, Dershowitz, is principled.
The constitutional scholars, 144 of them of all political stripes, issued a public letter to Trump’s legal team [read it here], that, according to Dershowitz on both Newsmax and in The Hill, demanded, “in effect, that they not make arguments to the Senate regarding the First Amendment.” Dershowitz referred to the letter as blatant intimidation, as did The Hill’s headline: “Impeachment scholars are wrong to intimidate lawyers of Donald Trump.” Dershowitz characterized the letter as “threatening” in advising the Trump team that they “don’t you even dare” raise the First Amendment. “If you do, it will be unethical and subject you to disciplinary proceedings, including possibly disbarment,” he said raising his voice in emphasis, which elicited a Pavlovian snicker from Spicer.
I don’t interpret the letter as intimidation. Moreover, I don’t find the quotes used by Dershowitz to be in the letter. What the letter says is, “No reasonable scholar or jurist could conclude that President Trump had a First Amendment right to incite a violent attack on the seat of the legislative branch, or then to sit back and watch on television as Congress was terrorized and the Capitol sacked.”
The letter reads more like a petition, speaking of the First Amendment.
Uncanny, though that Dershowitz would invoke the term “intimidation” when part of the argument to convict Trump of impeachment includes the lead up to the Jan. 6 events when Trump four days earlier called election officials in Georgia to convince them to find votes that would undermine Georgia’s election results. [Listen to excerpts or read a transcript from the Jan. 2 call here.] Trump had it all planned. The election was rigged, 11,780 votes need to be found, and if they’re not found and the election officials don’t report the missing votes, it’s a criminal offense and it will be incumbent on Trump to report their crime.
Now that’s intimidation. the severity of which is being investigated by Fulton County prosecutors in Georgia.
As for Dershowitz, now that’s chutzpah (חֻצְפָּה), the attributes of which he prides himself as having.
https://www.facebook.com/jack.doppelt/posts/10159360929711098
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He made sure not to watch the memorial ceremony that the successor he didn’t recognize held at the Lincoln Memorial with 400 candles commemorating 400,000 covid-19 deaths. The lighting cast a reflecting glow over the National Mall.
He carefully wrote down names, handed them to aides to get word out over social media. That’s no longer an act he can do on his own, with a click on Twitter.
He has aides who still have access. He selected one in particular whom he could trust. Postmaster General Louis DeJoy, whom Trump appointed in June, five months before the election, was to be responsible for transferring the pardons to the Office of the Pardon Attorney in the Justice Dept., which processes presidential pardons.
There were more than 100 names on the list. According to the rules, an applicant must satisfy a minimum waiting period of five years before becoming eligible to apply for a presidential pardon of a federal conviction. A pardon is ordinarily a sign of forgiveness and is granted in recognition of the applicant's acceptance of responsibility for the crime. Those are the rules, but an executive pardon need not abide by them. Trump considered that as he determined who shall live (with immunity from federal prosecution, conviction or imprisonment) and whose petition shall die.
Though there are rules, “the power to grant pardons is vested in the President alone.” No hearing is held, and none was. Documents relating to any cases are confidential.
Feeling accomplished after he completed the sacred act of pardoning, Trump went to bed, anticipating the party he planned for 8 am at Base Andrews, the base outside DC where Air Force One is headquartered. His invitees, each of whom was free to invite up to five guests, arrived between 6:00 and 7:15 am. After the gathering, Trump flew to the Mar-a Lago Club in Palm Beach, Florida.
Trump landed in Florida at about the time Biden was inaugurated at noon, to find out that his signature needed to accompany each pardon. It’s not something that can be consummated with a message on social media. Trump had taken care of it. He’d made sure he signed each pardon petition.
As it turned out though, Postmaster General Dejoy had neglected to file the documents before noon. They were invalid.
Such is the revenge of the postman’s oath: "Neither Rain, Nor Sleet, Nor Dark Of Night Shall Stay These Couriers From The Swift Completion Of Their Appointed Rounds.”
I'm watching Fox News today as the results of the Georgia Senate runoffs settle in, as Congress meets to certify the electoral collage votes while a moronic Republican strain performs its challenge to Biden's election, and as protesters in DC gather to pump up Trump and his GOP sycophants in Congress.
I'm doing it to get a more visceral sense of the national divide as we move into a new era. You may not be surprised by what you read, but you'll have details that will underscore the complexities of the road ahead.
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In speaking to the hordes in DC, Donald Trump, Jr. tried to jazz the crowd by punctuating something he said with "Amen." He followed with "A woman." Too cute apparently. He was loudly booed and tried to be quick on his feet by turning it around, saying that's how the Democrats would say it.
Right at 11 am Chicago time, Trump began his oration for his "Save America" rally. He opened by slamming the media, challenging them to show the hundreds of thousands of people who are there. On Fox News, they turned the cameras around and focused narrowly on the crowd. Viewers couldn't tell if there were dozens or hundreds or thousands in the crowd. Trump looked out, shielding his eyes from the sun and envisioned the crowd stretching beyond the Washington Monument. Maybe so. He's not one to be trusted on such matters.
He pledged to stop the steal. He boasted that he won the election in both 2016 and 2020. In 2020, he won by even more. A landslide. Does anybody believe that Biden had 80 million votes? A resounding, no. He complained that the military should be allowed to come up on the stage with him. He's counting on Pence to do the right thing - to make sure that the states should have to re-certify, then he'd be president. He rambled and got the crowd to chant almost at will for a while. He went after the weak Republicans - Romney, McConnell, Georgia Gov. Kemp, Liz Cheney, and any others who don't support the day's agenda to trash the electoral college voting.
[It was during this part of the rant that word leaked out that Biden is nominating Merrick Garland to be the Attorney General. Garland was the judge whom then-President Obama nominated for the Supreme Court to fill the vacancy left by Justice Scalia's death in 2016.]
Trump called on the crowd to march peacefully with him to the Capitol.
The chanting exploded when he called the late night voting results from state-to-state "bullshit." That got the crowd going. The chanting turned to "bullshit, bullshit." When he beseeched the crowd to applaud for Perdue and Loeffler, there was scant applauding. He tried to get the crowd to hoot and howl because he fought for increasing the covid relief package from $600 to $2,000. "Give em a couple of bucks," he said proudly. The crowd didn't go for it.
Where's Hillary? Later, where's Hunter? Not much response to either of those natural rousers.
Some of his preaching did hit the mark with the crowd. Mike Pence has to send the electoral college results back. The crowd came alive again. The chants rang out. "Send it back." Even "get rid of section 230" got some payback.
He warned the crowd he was going to lay out the case for fraud, and they don't mind staying on to listen, right? Murmurs at best. He asked again later. A handful of people responded. Some signaling yes; others no.
He was noticing that he was losing his people. It was hard to not see a crowd of people who were being held hostage in the cold. They had to stay on for the solidarity march to the Capitol.
As a standup performer, riffing around his notes, he can tell when a crowd is abandoning him. The trick for him at this point is to sense what will get them back. A few attempts took. Most didn't. What he was doing was warming up the crowd.
As he appeared to be moving toward an end, bemoaning that he could go on for hours regaling them with the unprecedented fraud, the crowd gave him the adoration he needed. "We love you," they chanted. He had another half hour in him, which he continued to use to foment the crowd about the illegitimacy of the Biden presidency.
[One hour after Trump opened his "Save America" rally, Congress convened in joint session. Vice President Pence reminded the congresspeople that debate will not be allowed in the session. The limited role of the session, he announced, is for both houses to verify that the certificates of the counts in the states are authentic and appropriate in form. They proceeded through the count state by state in alphabetical order.]
Fox News continued with Trump live, and the congressional session in an adjoining screen with the sound off. Fox News advised its audience that they will switch to the audio in Congress when the roll call gets to Arizona to show the objection to the Arizona electoral count. They did and Pence announced that the two houses will adjourn into separate sessions to debate the Arizona vote. Fox stayed with coverage of the congressional setting. When the session recessed, Fox News introduced a panel to debrief on it. Before they went to the panel, one of the Fox announcers underscored that Pence was standing loyally behind the president now and has at every turn. Another Fox announcer intervened to add that Pence issued a letter to Congress, indicating that he wasn't go to follow Trump's line in the sand.
I had no idea at this point if Trump was aware during the rally of the Garland nomination or of Pence's apparent shift in position to limiting his role and doing it against Trump's wishes.
Fox News would not return to the audio of Trump's rally. Their coverage would stay with the affairs of Congress. At one point, they showed in an adjoining screen the Trump rally moving to the hill and reported that in some cases, trying unsuccessfully to get into Congress.
As the GOP faction of Trumpers were making their case in both houses simultaneously, in the Senate, Mitch McConnell staked out a clear yet unexpected position that the election wasn't even close that it isn't Congress' role to nullify the votes of the electoral majority - of some 80 million people, of the states and of the many courts that have concluded that the voting was lawful. He reinforced that with all the objections to the elections state-by-state, the Trump forces have not managed to provide any evidence of fraud. He described the move by the small fraction of GOP Trumpers as pushing democracy into a "death spiral."
When Ted Cruz spoke in the Senate, he argued for an electoral commission to investigate for ten days the legitimacy of the elections in the swing states. He repeated his contention that half the country, not just Republicans, believe that the presidential election was rife with fraud. His point was that the public needs to be reassured that there was no fraud that would have changed the results.
Not for a moment did he consider the obvious indisputable truth. The huge numbers of the public, probably millions, who believe that the presidential election was rife with fraud believe it not based on any evidence but on the barrages of disinformation propagated by Trump, fellow Republicans, Fox News and their companions in the far right media. There is no guarantee, not even a likelihood, that Trump's band of miscreants will change their tunes or give up the ghost. As Trump put it before the rally ended, "We will never give up, we will never concede."
Shortly after Cruz spoke, all hell broke loose, or more accurately, all hell broke in. The crowd that seemed to swell off camera on the way from the mall to the hill had breached the meager law enforcement presence at the gates, entered the halls of Congress and begun strutting down the halls. Congress halted the proceedings and took cover.
All hell had broken in.
[Read on Facebook]
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Jack Doppelt
Dec. 3, 2020
Jack Doppelt
Oct. 30, 2020
Jack Doppelt
April 30, 2019
President Trump’s offer on Saturday is worth negotiating, and I’d like to make my good offices available to shepherd it through. The president’s opening made-for-TV offer, it seems, is $5.7 billion dollars in funding for a wall in exchange for three years of protection from deportation for 700,000 Dreamers and 300,000 TPS holders, with some other elements thrown in.
Apr 10, 2026, updated April 12 [The original version of this blog...