On second thought . . .
July 20, 2022
I espouse two opinions in this newsletter that are unpopular with the majority of readers (as measured by the volume of emails and comments): (a) Expansion of the Supreme Court and (b) Criticism of Merrick Garland’s lack of action (to date) in prosecuting Trump. In yesterday’s newsletter, I went a step further and urged that Biden fire Merrick Garland.
That opinion led to a firestorm of reaction. Many readers agreed with my position, but (as usual) most disagreed with me. (Oddly, people who disagree send me emails; people who agree post Comments.) To see a measured and articulate response from a reader who disagrees with me, read Stephen Berg’s note in the Comment section of yesterday’s newsletter.
I also received a note from Professor Laurence Tribe, who urged me to ‘re-think’ my position. Given that Professor Tribe is my “go-to” authority on all things legal, I print the substance of his comment below for your consideration:
First, I’m just not willing to assume that Merrick Garland isn’t doing much more than appears on the surface. There are good reasons for the rules that require DOJ officials to stay mum about ongoing investigations of various individuals until they’re ready either to indict or to clear someone’s name. James Comey made a mess of things by violating those rules in 2016 and Garland must take care not to fall into that same trap.
Second, even assuming that firing Garland would be justified by the imperative of holding Trump accountable for his grievous crimes and sending a clear signal to anyone who would ever again attempt the kind of treacherous subversion of democracy that Trump seems guilty of having engaged in, and even assuming that Garland is indeed derelict in his duty – something that, as I say, I’m not willing to assume – firing Garland would beg the question of whom to replace him with. Nobody with a spine could be confirmed by this Senate or by the one that will be sworn in next January, and I just can’t see an unconfirmed acting Attorney General having the clout needed to take Trump down.
Anyone who proposes a drastic step of the sort you and some others have proposed with respect to Attorney General Garland has an obligation to think through the consequences: what would the next steps look like and why would they be likely to make matters better?
Although I have lost all faith in Merrick Garland, I hope that I am spectacularly, embarrassingly wrong in my judgment. If Garland indicts Trump, it will be a sad day for America—but a good day for the rule of law. No one should celebrate the indictment of a former president, but if Garland does so, I will happily celebrate my error. Until then, I remain deeply skeptical.
House Passes Respect for Marriage Act with some support from Republicans.
The House passed the Respect for Marriage Act, which amends provisions of federal law to recognize same-sex and “mixed-race” marriages under federal law. The Act also requires states to give “full faith and credit” to marriages valid in other states. But the law does not compel any state to issue same-sex marriage licenses—which would become an issue if the Supreme Court overrules Obergefell. For example, if the Court overrules Obergefell, Alabama could define marriage as a “union between a man and a woman” and refuse to issue marriage licenses to same-sex couples.
The text of the Respect for Marriage Act reads, in part, as follows:
No person acting under color of State law may deny—(a) full faith and credit to any public act, record, or judicial proceeding of any other State pertaining to a marriage between 2 individuals, on the basis of sex [or] race. . . .
The bill passed in the House with support from all Democrats and 47 Republicans—suggesting it has a chance to pass in the Senate. But comments from Chuck Schumer and Dick Durbin indicated a lack of urgency in bringing the bill to the floor of the Senate for a vote—because the Senate is scheduled for summer recess, that is apparently more important than securing a civil liberty for hundreds of thousands of Americans. See The Hill, “It’s unclear if the Senate will take up the legislation, as Democratic leaders remained noncommittal on Tuesday.”
Here’s some free advice to Chuck and Dick: Read the room. This issue is vitally important to your constituents. If you can achieve an easy “win” in the Senate before you go on vacation, do it! It will help dispel the notion that Democrats can’t get anything done.
Fulton County DA sends “target letters” to sixteen “fake electors”
Fulton County, Ga. District Attorney Fani Willis has sent “target letters” to all sixteen “fake electors” who sent a false electoral certification to the National Archive claiming to be the “real” electors from Georgia. See CNN, Georgia prosecutors say all 16 fake Trump electors are targets in criminal probe. Although the fake electors claim they were acting as “contingent” electors in the event that the Georgia election was overturned on grounds of fraud, the fake certificates they sent to the National Archives stated, in part,
WE, the undersigned, being the duly elected and qualified Electors for President and Vice President of the United States of America from the State of Georgia do hereby certify the following: (C) That the undersigned 2020 Electors from the State of Georgia cast each of their respective ballots for . . . Donald J. Trump.
There is nothing “contingent” in the above language. The certificate was a fraudulent misrepresentation designed to overturn the 2020 election. The persistence of Fani Willis in pursuing the fake electors is a welcome sign of prosecutorial aggressiveness that should serve as a cautionary tale for future coup-plotters.
The Secret Service text message mess.
The explanations for the missing Secret Service text messages from January 5th and 6th continue to be contradictory and nonsensical. In the latest version of the story, agents were told to “back up” text messages that resided (allegedly) only on their old phones. But that is not how SMS text messages work. They do not “reside” only on phones or “fly through the air” from device to device. Like email, they are routed through an internet-based server that maintains a copy of the text messages for a prescribed period. See generally, Wikipedia, Short Message Service technical realization (GSM).
Although I haven’t seen the agreement between the Secret Service and its cell provider, I am confident that the storage period for Secret Service text messages is “forever,”—which is the statutory requirement set forth in Federal Records Act, 44 U.S.C. Chapter 31.
But even if we believe that messages were not stored on a server and that some agents neglected to back up their messages before upgrading to a new device, every message has at least two parties. Are we supposed to believe that somehow, through sheer coincidence, all senders and all recipients of all messages on January 5th and 6th neglected to back up their phones? The explanation doesn’t make any sense. But in the latest head-scratching report, the Secret Service turned over only one text message to the January 6th Committee. See The Guardian, Secret Service turned over just one text message to January 6 panel, sources say.
Thankfully, the National Archives and the January 6th Committee are investigating the mysterious disappearance of the most highly relevant text messages ever sent by Secret Service agents. See WaPo, Secret Service has no new texts to provide Jan 6 committee, any texts not backed up have been purged and cannot be recovered.
The Secret Service has created a crisis of confidence by mishandling the texts and changing its explanations. Someone in the Secret Service needs to step up and take ownership of this mess before the agency loses all credibility.
Have you dodged Covid?
My wife interviewed me on her blog about my recent experience with Covid. I am mindful that my anecdote doesn’t predict your reality, but if you have dodged Covid so far and are feeling confident, you might be interested in hearing our story. Spoiler alert: Wear N95 masks, get vaccinated and boosted, and be careful. See Covid Catch-Up with Robert & Jill.
Concluding Thoughts.
It is rare that a member of Congress is “arrested” for civil disobedience. On Tuesday, seventeen members of Congress (and eighteen other protestors) were arrested for blocking the intersection in front of the Supreme Court. Although the members of Congress received only a citation and were released after being removed from the intersection, the development is notable. During the Civil Rights Era, non-violent civil disobedience was one of the primary tools used by protestors to bring attention to their cause.
The non-violent civil disobedience of the 1950s and 1960s angered and annoyed many stakeholders who sought to maintain the control of white conservatives over the Jim Crow south. The protests by the members of Congress will undoubtedly anger and annoy many stakeholders who seek to maintain control over women’s reproductive choices by reactionary religious minorities.
The protest on Tuesday was small and spirited. But it served as a model for women (and men) everywhere who are still reeling under the reality that a right protected by the US Constitution on June 23, 2022, was converted into a felony in a dozen states on June 24, 2022. Every legal and electoral effort to reverse Dobbs and reestablish the constitutional right to reproductive liberty should be pursued. But there is a place for civil disobedience when women have been silenced and excluded from the political process by (mainly) white men.
Members of Congress were willing to be arrested and cited for civil disobedience to make a statement. That is an auspicious development that bodes well for the fight to come. We should all take encouragement from this first small act of civil disobedience. I do. I hope you do, too.
Talk to you tomorrow!
Did you see the Washington Post article:
"A 1792 case reveals that key Founders saw abortion as a private matter
Thomas Jefferson, John Marshall and Patrick Henry didn’t advocate for prosecution of a woman who probably had an abortion
Perspective by Sarah Hougen Poggi and Cynthia A. Kierner
July 19, 2022 at 6:00 a.m. EDT
Abortion rights activists demonstrate in support of women's rights on July 16, 2022, in Santa Monica, California. (Ringo Chiu / AFP) (Ringo Chiu/AFP via Getty Images)
A basic premise of Supreme Court Justice Samuel A. Alito Jr.’s majority opinion in Dobbs v. Jackson Women’s Health Organization was that the Constitution can protect the right to abortion only if it is “deeply rooted in our history and traditions.” This statement complements Justice Amy Coney Barrett’s concept of originalism, or the idea that the court should interpret the Constitution by trying to infer “the meaning that it had at the time people ratified it.”
Alito’s evidence that abortion was always considered a criminal act, and thus something the Constitution should not protect, consisted of a single criminal case that was prosecuted in 1652 in the (Catholic) colony of Maryland. He then jumped ahead to laws that states enacted, mostly in the mid-to-late-19th century, to criminalize abortion. This cursory survey of abortion in early America was hardly complete, especially because it ignored the history of abortion in the years in which the Constitution was drafted and ratified.
In that era, abortion was governed by Anglo-American common law. Under this framework, the procedure was legal before “quickening,” or the moment the pregnant person first felt fetal movement — a highly subjective milestone that usually occurred around 16 to 22 weeks of gestation. Yet even after quickening, few people were prosecuted for abortion, let alone convicted — Alito’s opinion certainly did not offer contradictory evidence. The reason is simple: In the early republic, abortion was largely a private matter. It was not a cause for public concern, nor was abortion considered a criminal act.
In fact, contrary to Alito’s assertions in Dobbs, three Founders from Virginia — Thomas Jefferson, Patrick Henry and John Marshall — did not seek charges in a sensational court case from that era in which evidence of an abortion was discovered.
In 1792, 18-year-old unwed Nancy Randolph was impregnated by her 22-year-old brother-in-law and cousin, Richard Randolph. Nancy lived with Richard and his wife, her sister Judith, at their Cumberland County plantation in Virginia, aptly named “Bizarre.”
In September, Nancy and Judith’s cousin and sister-in-law, Jefferson’s daughter Martha Jefferson Randolph, visited and found Nancy unwell and unwilling to undress in front of her. Martha, who believed Nancy was pregnant, recommended gum of guaiacum, an herb known to treat “menstrual obstruction,” a euphemism for pregnancy. On her return home, she sent Nancy the herb, which she warned could “produce an abortion.”
Two weeks later, Richard, Judith and Nancy visited the home of their cousins, Randolph and Mary Randolph Harrison. Nancy appeared ill and retired early to bed, awakening with a scream in the middle of the night. The next morning, Nancy’s bedclothes were bloody. Randolph Harrison saw blood on the stairs and noted “[Nancy’s] considerable paleness and a disagreeable odor.”
When an enslaved man found what appeared to be a White fetus on a woodpile, rumors spread through the community of enslaved people to Whites of all classes quickly, reaching Philadelphia, where Jefferson expressed sympathy for Nancy in a letter to daughter Martha, declaring: “I see guilt but in one person, and not in her.” Jefferson’s response was typical of that era, a time when upper class White women like Nancy were viewed as morally pure and sexually chaste by nature.
Many among the general public believed that Richard impregnated his sister-in-law — which was incest under Virginia law — and that he also murdered a living infant. His honor and life were at risk. Richard vehemently asserted his innocence in a newspaper. His public statement had little effect, and, facing mounting pressure, he surrendered to the county sheriff. Richard was charged with “feloniously murdering a child delivered of the body of Nancy Randolph or being accessory to the same.”
Medically, five pieces of evidence suggest that what happened was not murder of a living child, but rather a deliberate second-trimester abortion. First, Nancy had an abortifacient. Second, witnesses reported her enlarged abdomen, though not a full-term pregnancy. Third, Nancy’s brief cries were more consistent with latent labor than active labor. In latent labor, the cervix dilates to four-to-six centimeters, sufficient for passage of a one-to-two-pound fetus. Uncomfortable but not unbearable, and sometimes lasting days, latent labor in the second trimester ends abruptly with the expulsion of the fetus. (At full term, hours of painful active labor follow to achieve 10-centimeter dilation and pushing efforts.)
Fourth, no one reported a baby’s cry, suggesting pre-viability outside the womb. Finally, Nancy later delivered a son at term, indicating she had no risk factors for second-trimester miscarriage such as uterine or cervical anomalies. Altogether, the evidence supports the conclusion that Nancy ingested herbs to induce a second-trimester abortion and that her effort was successful.
In April 1793, Richard appeared before a tribunal of county judges who weighed the merits of serious criminal charges to decide whether they should be adjudicated in a higher court. Few defendants in the 1790s had legal counsel, but Richard and his stepfather assembled a good team: Henry, a charismatic litigator and former governor famous for his “Give me liberty or give me death” speech; Marshall, a rising star and the future U.S. Supreme Court chief justice; and William Campbell, the U.S. attorney for Virginia.
The circumstantial obstetric evidence overwhelmingly demonstrated that Nancy’s pregnancy ended that night at the Harrisons’ home. Marshall recorded Martha Randolph’s testimony that Nancy was pregnant and that she delivered the herb, noting that the gum of guaiacum was “designed” for producing an abortion. But he did not describe this as a crime.
No effort seems to have been made to determine whether the pregnancy had reached the stage of quickening. If it was post-quickening, the state could have prosecuted Nancy and Martha. Instead Henry skillfully undermined the credibility of the prosecution’s witnesses, and Marshall successfully took the untenable position that there was never a pregnancy and, thus, Richard could not be guilty of murder.
While the release of Richard — a wealthy White man with great lawyers — was not surprising, what was remarkable and relevant to today’s debates is that evidence of an intended abortion was discovered in an unwed, unpropertied woman and not fully investigated or acted upon. Nancy would later admit she had been pregnant, yet neither she nor her accomplice were ever charged.
Abortion was later criminalized in Virginia and across other states in the 19th century. But these laws reflected the development of modern gynecology more than a change in morality. The curette, introduced in 1843, was widely adopted when dilators were developed in 1871, resulting in the “D and C” procedure, in which the cervix is dilated to allow for passage of a curette, which removes tissue from the uterus. Abortion transformed from a private, female matter to the purview of male medical professionals, who excluded other providers by influencing lawmakers.
Therefore, the more historically accurate conclusion is Justice Harry A. Blackmun’s majority opinion in Roe v. Wade (1973), that “at the time of the adoption of our Constitution, and throughout the majority of the 19th century, abortion was viewed with less disfavor than under most American statutes currently in effect. Phrasing it another way, a woman enjoyed a substantially broader right to terminate a pregnancy than she does in most States today. ”
Though Marshall’s notes on Commonwealth v. Randolph are extensive, this episode is poorly documented in the county court records, and, thus, no formal case law was generated. Regardless, the episode begs examination as it involved key Founders who occupied vastly different positions on the political spectrum, both nationally and in Virginia. The Federalist Marshall believed in a strong national government. Jefferson mostly supported a decentralized system. Henry was a populist. Yet all three tacitly agreed that abortion in this case was a private matter, not a criminal act worthy of further investigation and prosecution. In a remarkable coda, Nancy went on to marry Gouverneur Morris of New York, an influential signer of the Constitution, who was well aware of her backstory.
If anything, the saga demonstrates that the concept of abortion as a private matter was “deeply rooted” in the minds of our nation’s Founders. As Americans consider their next move on the abortion issue at the state level, they should be mindful of the precedents followed by these early giants of our republic."Many of us were arrested this fall , some week after week, for incommoding the Park Service in front of the White House where we were fighting to end the filibuster for the Freedom to Vote: John R Lewis Voting Rights bills (now combined into H.R. 5746. "
thank you and your wife for sharing your experience with COVID. It would really be good if others would review and hopefully benefit as well.
For Garland's actions, I also hope that you are wrong - I do think he is very careful and thoughtful in how e proceeds and this is a very important step regardless of how he proceeds for the country.
Since the Respect for Marriage Act passed the House with Republican support [47 is a pretty substantial number especially in this Congress] I would think that Schumer and company would proceed quickly before too many repubs in Senate would get together and develop their opposition after hearing from so many of their constituents who would oppose anything like this bill. Once again the Dems seem to be doing their best to enable the opposition. I just don't get them. Make them vote!
As for the Secret Service, I just don't get them either - they must think every one is stupid altho I guess after serving the previous guy who always seemed to get away with that kind of nonsense they figure they can too.