Friday, April 16, 2021

Corrupt Giving, or Genuine Tzedakah?

 Can I choose which poor person receives my tzedakah?

Question:  Every once in a while a very well-meaning and generous person approaches me and wants to give money to a specific person as tzedakah (charity) through the synagogue, but with a catch.  They want to deposit the funds in a tzedakah fund of the synagogue for a specific person.  Is this permitted?  

The answer as a legal point is definitely no.  For example, you can not give funds to a school, which is a legitimate non-profit 501(c)(3) organization, for any identified person.  You can give for the poor.  You can create a fund to give to children of a particular aptitude (students with A's) or background (children of Latino heritage).  But the school needs to legitimately offer and administer scholarships openly for any and all qualifying students in those categories.  The attempt to give through an intermediary is basically money-laundering and an attempt to evade the tax codes of the United States of America.  By evading those codes, the recipient would not have to report the income and the donor would seek a tax break for the charitable gift.  It is illegal, and therefore unethical.  

If you wish to give tzedakah for a category, such as "widows, orphans and strangers," then give freely and without restrictions to a non-profit that serves those needs.

But what is the religious view of this action?  The Talmud raises an interesting case in B. Gittin 11b-12a, about the corner of the field (Peah) that needs to be left for the poor.  According to Vayikra (Leviticus) 19:9-10; 23:22),

"When you reap your land's harvest, you shall not finish off the edge of your field, not pick up the gleanings of your harvest.  And your vineyard you shall not pluck bare, nor pick up the fallen fruit of your vineyard.  For the poor and for the sojourner you shall leave them. I am the Lord your God."

The system seems clear:  You must leave a dependable portion of your productive harvest unharvested for the poor and the wanderer to come and harvest for themselves, and you must leave anything that drops on the grounds as you work for them to come and take after you have done your work.  The needy have a right to that portion of your field and work because God is your God. It must be available, and they may come to do the work necessary for themselves.  It seems very straight forward.

But what if there are no poor or wanderers near your field?  Do you leave it to rot?  And what if you know some poor or wanderers back in town that you want to help?  Can you gather this for them, and deliver it to them?  And more disturbingly, what if you don't like these poor  or wandering people, and prefer to save it for other poor or wandering people?

The question is about distributive justice - an ancient Aristotelian concept that is at the heart of the debate in our country about welfare, entitlements, and equity.  Distributive justice asserts that all members of society must have access to reasonable economic resources, education, social services, and other resources based on the ethical principles of equity and solidarity among the least privileged.  It can also be understood as the fair distribution of benefits and burdens.  

Only an unjust society, by Torah Law,  would have only some people access the benefits of society.  The Torah is quite clear that while there will always be poor people whom we are commanded to support, we also must create a system of access to the benefits of society for disadvantaged people to receive through their own labor.  

The rabbi's questions really are based on concepts like unequal access to transportation (I can't get to the field), residential segregation (the poor people don't live near the resources), corruption and bias (I prefer these poor over those poor).

Let's see how they handled it.

Raising a debate between Rabbi Eliezer and the Sages from Mishnah Pe'ah 4:9, the Gemara in B. Gittin 11b says, "One who gathered pe'ah and said, 'behold this is for this specific poor person,' R. Eliezer said he has acquired it for him but the Sages say he must give it to the first available poor person."   Rav Ameimar points out that the wealthy land owner could renounce his property, effectively becoming poor in the moment, and then be eligible to acquire the pe'ah for himself.  The Torah therefore, according to the Sages, says specifically "You shall not gather... for the poor."  By moving the comma in the underlined verse above, they read a Torah command that you may not gather for the poor.  They must do it for themselves.  Therefore you may not gather at all - and you may not choose who is to receive the fruits of your harvest.

I love the flexibility in Torah interpretation that the debate reflects.  Thousands of years later, the text clearly speaks to us.  

There are no "undeserving" poor when it comes to our religious and moral obligation to provide for society.  You may not "play favorites" among those in need.  And we must create systemic equity in people's access to the benefits of society.



Thursday, January 14, 2021

Text of January 8, 2021 Sermon on Capitol Attack

 The following is the written text of my sermon immediately following the Capitol Attack.  The video of that sermon can be found here.

Shabbat Shalom.  This morning's sermon will be delivered without interruption or questions as I wish to emphasize the singular moral authority of my voice as your rabbi speaking to the congregation in the pulpit.  I don not consider the content to be subject to debate for two reasons.  First, nothing that I say today is new.  I have spoken of these topics in major moments before even in major moments like the HHD's for the past two years.  Second, these are facts and it is precisely the questions against matters of fact that have been at the heart of the current crisis.

This morning I will speak about the events of January 6, 2021, a day of national shame, from the basic concept din d'malkhuta din hu - the concept that I have often taught and you know well that civil law has the force of Torah law.  Within this, I will have two points of focus: Law and Order and the role of antisemitic extremism.  It is not my role to give a complete picture or a political roadmap.  It is my role to speak to the morality and ethics of law.  It is my role to speak of the threat that anti-smites pose to this nation.  By choosing these topics I am limiting my voice, not twisting some political gambit.

On the High Holidays I spoke forcefully of Law and Order.  Why supporting the rule of law, and those who serve to enforce it, is a core Jewish value commanded in the Torah.  On Wednesday, the entire assembly was urged to stop the Constitutional process in the Congress.  They were urged to stop the rule of law.

We have the right of free speech, within the rule of law.  We have the right of political advocacy, within the rule of law.  We have the right to fair trail and to petition government - to make our case to the Executive and Judicial branches for the redress of perceived wrongs.  All this was done following the November election loss by Donald Trump.  And I vocally - and in writing - supported those rights.  The facts were not proven to be on his side, and the courts ruled on the law.  He lost his appeals.

When you lose an election, you have lost.  When you lose in court, you have lost.  You do not have the rule of law on your side to continue to act against the rule of the court, the rule of law.  And yes, political freedom is important, and you can protest your viewpoint freely, verbally and peacefully.

But the Constitution is the supreme law of the land.  Once the states certified their electoral slates, those electors voted.  Once they voted, the states certified their votes.  That is the end of the electoral process - by law, with the single constitutional mandate for Congress to meet and count those certifications.  They must, under force of law, do so on January 6th.  Any deliberate interference with that act is against the law.

Definition: Insurrection.  The intentional (unarmed) attempt to thwart a legitimate governmental authority from performing its duty.  

It doesn't matter if you feel or believe that the courts are wrong.  No one is above the law.  These are facts.  They are not subject to debate.

An essential point of my HHD services was the establishment of Judges and police enforcers.  Our chief enforcer is the President.  What do you do if that person breaks the law?

In Judaism we have two models to help us to form our moral and ethical viewpoint of a leader in abrogation of the law:  King Saul and King David.  King Saul broke the law, intent, paranoid and disturbed - acting against the interests of the nation and was removed from the throne.  King David broke the law, and tried to cover up his sin.  Publicly exposed, he did teshuvah, admitted his wrongs and repented.  He paid a serious consequence for his actions, and remained on the throne going on to achieve more great things before he was done. This is the view of authority in the Torah. This is also a fact, and not subject to debate.

Now, it is clear.  President Trump himself said out loud before the insurrection that he wanted the crowd to pressure congress to stop its legal ministerial duty of counting the Electoral College on January 6, 2021.  He and his lawyer, and others, repeatedly tried to influence legislators to break that law to to not count - to "send it back to the states" he said - so that he would be President again.  Insurrection does not require violence and the violence does not define the essential insurrection.  He said on January 6, that his goal was to be President again, which was contrary to the law.  His plan was to stop the electoral college count, which was against the rule of law.  On January 5th he could say anything.  On January 7th he could say anything.  But on January 6th, as chief enforcer of the Constitution, he has to bow before the rule of law and the Constitutional Authority of the day.  He did not.  All by itself, that is a betrayal of his sworn oath to uphold and protect the Constitution.

Now, as for what actually happened.  We all agree.  No democratically minded citizen can tolerate the riot and the insurrection.  We are now talking about a specific sub-set of the protestors - and that sub-set are the rioters and the insurrectionists. We know that they do not define the Trump nation of 75,000,000 people who supported the President in the last election.

My second topic is about a primary driving force among the rioters, that smaller group.  White supremicists and anti-smites, among them.  The hate of Nazis and white-supremacist bigots was all over the riot.  Flags, hats, t-shirts and more.  Their on line movements brought hundreds upon hundreds all tolled, and they have always seen the Trump banner as their greatest hope in America.  They are hateful, bigoted, violent and dangerous.  And we have long shown that they are empowered by Trump rhetoric - whether or not he intends it.  We are all responsible for the impact of our words and our tolerance of what is done in our name.  The ADL, the SPLC and more have tracked, identified these people and groups.  They are known.  They are predictable.  

The anti-semitism under Q-Anon and other conspiracy theories are inevitable ever since the first publication of the horrific lie, The Protocols of the Elders of Zion.  Behind every dark fantasy of a deep state lies an antisemitic trope ready to say the Jews are in power.  The Jews are the enemy. 

Not all of the insurrectionists were anti-semites.  Some were Jews! But so stupid, so deluded, that they could even attack the Capitol arm-in-arm with antisemites who hate them.

Every person who passed a barricade and climbed the steps is a rioter.  Every person who entered the building is an insurrectionist.  Every person who planned, published and encouraged those acts is an inciter.  And we have laws for each of them.

Once again we see police attacked - one murdered - dozens hospitalized - in the name of political violence.  As I did last summer I repeat now.  Support legitimate political voices of freedom. Pursue Justice.  Condemn hate, extremism, violence and anti-semitism.  And hold all those who actively sought to thwart the constitution to account.  The law of the land is Torah law.  

Shabbat Shalom

Rabbi Robert L Tobin

Tuesday, January 12, 2021

Busting Vaccine Myths and What We Know


PLEASE register for your vaccine (Example: Google "vaccine registration near me"), and get it as soon as you are eligible.

 The following is from Dr. Tammy Tobin, Chair of the Biology Department of Susquehanna University.  It starts with clear language descriptions of the major vaccines being produced, and why they should or shouldn't be used.  It then ends with a series of important myth busters to counter the internet trolls who are sabotaging our nation's need to become vaccinated.

January 12, 2021.

What we know about the vaccines currently in use worldwide:

mRNA vaccines: The short answer is that the Moderna vaccine that you are getting is safe and effective (>90% after two doses with no serious COVID disease. Their clinical trials involved older (>65) individuals, younger individuals (18-55) with comorbidities, and paid attention to racial and gender diversity).  The Pfizer vaccine (the other mRNA vaccine) is similar in this regard.  I would prefer one of these vaccines, if I had a choice.

 

Live (recombinant adenovirus) vaccines. The current live (Oxford/AstraZenica) vaccine showed about 70% effectiveness, but the initial clinical trials had very few older or non-white participants.   It has been approved for use in Great Britain, but probably has a larger uphill slog in the US due to some anomalies in the clinical trials.  In short, they gave a reduced dose, by mistake, to some participants in their phase 3 clinical trials, and those individuals did better than the others.  I would take this vaccine if it was the only one I could get when my turn arrives.  I am sure it is safe, but don’t know if it will be as effective.

 

Inactive virus vaccines.  There are no complete phase 3 clinical trials yet, although several are underway.  There is no reason to believe that this approach will not be effective, but China’s approach of vaccinating without that data in hand reflects a different approach to healthcare than we have in the US.  I would not be comfortable taking an inactive virus vaccine until complete phase 3 clinical trial data have shown the vaccine to be safe and effective in large, diverse groups. 

 

What we don’t know:  

How long will the immunity last?  Which vaccine type is better for long-term immunity?

Can vaccinated people still transmit the virus?  Which vaccine type(s) might prevent this if it happens?

Is the vaccine safe and effective in children? No vaccines are, as yet, approved for individuals under the age of 16, although some clinical trials are underway for the 12-18 group.

 

How about those false rumors?


Ok, here are some very common rumors and their answers:

 

  1. Will the COVID mRNA vaccines cause you to make a whole virus in your own cells, and could that then give you COVID?  Can the mRNA vaccine give you COVID by itself?

NO.  The mRNA that is injected only contains the gene for the viral spike protein.  The entire virus consists of the protein products of many, many other genes that are not included in the vaccine.  By way of example, if you were to inject a healthy copy of the gene that is defective in cystic fibrosis into a person’s lungs, you would not expect that person to suddenly produce an entire new human in their lungs as a result. 

  1. Can the mRNA change the DNA in your cells?

                

No.  Our cells don’t have any enzymes that are capable to turning mRNA into DNA (our genetic material).  In fact, ‘loose’ mRNA is very quickly degraded by our cells, so the viral mRNA does not stick                around for very long after the injection, either.  Fortunately, it survives long enough to produce the spike protein to which our immune systems respond – thus conferring immunity.

  1. Are recombinant DNA vaccines (like the AstraZeneca one) inherently bad because they use genetic modification?
  • The words “Recombinant DNA” send some folks into paroxysms of fear (particularly in England), but it is just a tool.  Good versus evil is determined by how a tool is used.  Tools are not evil just because evil people can use them for bad things.  Recombinant DNA means scientists cut and paste together DNA in new ways that are not found in nature.  When the technology was first developed in the 1970s, scientists were very worried it might be used in the wrong way (and it can be!), and so put a moratorium on the technology until they could wrap their heads around it and make rules.  That resulted in the Asilomar conference (https://en.wikipedia.org/wiki/Asilomar_Conference_on_Recombinant_DNA ).  Very strict guidelines now regulate what scientists can and cannot do with recombinant DNA.  Good things that have been done include the human insulin gene that was cloned into bacteria so we would not have to keep killing horses to extract enough insulin from their pancreases to treat diabetics.  I personally like horses a lot.  I vote for recombinant human insulin.

 

  • So, is the use of recombinant DNA in the AstraZeneca vaccine good or evil?  I would argue good.  ChAdOx1 nCoV-19 is a chimpanzee adenovirus (ChAd -causes the common cold in chimpanzees) designed by Oxford that has been genetically altered so that it is ‘replication defective in normal cells’.  That means it has had its important replication genes cut out of it (another good use of recombinant DNA), and cannot cause disease, even in chimps.  It has also had the gene for the SARS-C0V-2 (the virus that causes COVID-19) spike protein inserted into it.  This is the protein that our immune systems respond to.  The ultimate take home is that when we are injected with this virus, it does not cause disease, but does cause us to make a protective immune response against the spike protein.  The overall effectiveness of that approach is still under some debate, but it looks promising.

 

    1. Why chimpanzee adenovirus?  Well, there is also a human adenovirus-based vaccine in the works (I forget who is making that one).  The problem is, that we have all had the common cold at some point or another, so our existing immune responses to the common cold may impact our response to that vaccine.  None of us has ever gotten a chimpanzee cold.

 

  1. Were fetal stem cells used to develop these vaccines?  

 

            Yes.  Two cell lines were used to develop most of these vaccines (to show they could grow in human cells and produce the appropriate proteins).  The two cell lines are HEK-293 (an   immortalized human embryonic kidney epithelial cell line that was derived from a terminated fetus in 1972) and PER.C6 (an immortalized retinal cell line derived from a         terminated fetus in 1985). 

 

  1. Are fetal cells currently used to produce the vaccines?

 

            The Pfizer and Moderna mRNA vaccines do NOT use fetal cells to grow or produce the vaccine.  As a result, most pro-life groups have found these two vaccines to be “ethically         uncontroversial” in this regard.

 

Most of the recombinant adenovirus vaccines do require growth in fetal cell lines.  This may be problematic to some.  However, the highly pro-life Vatican Pontifical Academy for Life  says the cell lines used in such vaccines "are very distant from the original abortions," and "We believe that all clinically recommended vaccinations can be used with a clear conscience and that the use of such vaccines does not signify some sort of cooperation with voluntary abortion."

 

  1. Are fetal stem cells part of the vaccines?  Are you being injected with fetal DNA?

 

            No.   Pfizer and Moderna do not use fetal stem cells, and the other vaccines use purified virus.

 

 

  1. Do the health officials expect high numbers of adverse effects that are caused by the vaccines? If not, why is there a call for proposals to develop artificial intelligence programs to track them?   

No.  This. rumor began because there is a contract in England to analyze the expected high numbers of “ADRs” due to the new vaccines.  However, ADRs are reported, potential adverse effects, not necessarily real ones.  So, for example, if somebody gets the flu shot and says they got a sore arm (real) or got herpes (false) because of the vaccine, those would both be reported as ADRs.  Since there will be literally tens of millions of new vaccines given all at once, epidemiologists need a way to sift out any real and rare side-effects from the bazillions of false ADRs, to make sure that real side-effects are not missed.  Computers (AI) could analyze that data really quickly.

 

  1. Do the vaccines contain artificial tracking devices?

 

            No.  I think this rumor also derives from #6.

 

Ok, hope this helps!  Let me know if you have heard any other rumors that I can help you respond to.

Friday, January 8, 2021

Impeachment 2.0, for the record.

 On January 30, 2020, almost precisely one year ago I wrote "My final post on impeachment."  I was wrong. I apologize.  

In the wake of the insurrection at the Capitol on January 6, 2021, the impeachment of President Donald J. Trump again seems likely.  The House of Representatives' Democratic Caucus will discuss it later today.  By Monday, we will know. In anticipation, here are my beliefs and thoughts.

We all know that President Trump has repeatedly called the legal function of state electoral officials, the electoral college and the Congress "theft" and has insisted that the results were fake, fraudulent and an illegal stealing of the election.  There is no debate about that fact.  Despite his repeated loss in the courts, including the Supreme Court, he persisted right through Wednesday's "Save America" speech and the violence that followed.

We must be clear why Wednesday was legally VERY DIFFERENT from any other day.  On any other day, he has a 1st amendment right to lie in public, and to defame anyone and anything he wants.  However, once the Congress is seated and performing its constitutional duty to count the electoral votes, any attempt by the Executive Branch to sabotage or interfere is a direct attack on the Constitution of the United States and his presidential duties to uphold and defend it.  

On that very day, he rallied a crowd, and sent them to the Capitol explicitly to make the Congress refuse its duty.  He said: "Give them the courage to send it back to the States for recertification, and we will win. We will be the President and you will be very happy people."  This, not just the violence that followed, is the impeachable offense.

The two likely Articles of Impeachment are clear:

Violation of the Constitution:  The President gathered people on the Constitutional day of certification, and sent them to the sitting congress in the moment of their constitutional function with the explicit intent to interfere with their duty and to make/encourage them to overturn their constitutional mandate to count the electoral college and certify the victory of President-Elect Joe Biden.

Incitement to Riot:  By sending a crowd to the Congress to "fight," to "be strong," and so on, he becomes legally responsible for the illegality of their behavior.  

I believe that the second Article is weak, and will give Republican members of the Congress the wiggle-room to say "he condemned the attacks, and never intended the riot."  Like last year, it is very possible that the Democrats will nevertheless choose this weak article, and thereby fail in their purpose. By distracting the debate on the second topic, they will be able to ignore (but vote against) the first topic.

The first article is crisp, clean and clear.  There is no doubt that by publicly denying and defaming the certified votes of the Electoral College, and by sending a crowd to interfere in Congress' duty to count and record them, that President Trump was in direct violation of the Constitution of the United States of America.

Can he send a crowd of people to the Supreme Court to interfere with the Justices as they sit on the bench?  Can he fight against the rule of laws that he personally doesn't agree with?  

The Constitution and the Electoral College are the rule of law.  They are the precise law that the President is sworn to uphold and defend.  This is a blow against the basic foundation of the office of the Presidency as the chief executive in charge of implementing the laws of the land.

If that is not an impeachable offense, then what is?  

But why do it if there is no time to actually remove him from office?

The Senate will not be under Democratic leadership until Warnock and Osoff from Georgia are certified.  That could take until January 20th; it is not clear. Mitch McConnell will certainly not allow the articles to be tried on the Senate floor on his watch.  In other words, there is no time to actually remove him from office.  So why proceed?

The stain of disgrace that the Impeachment leaves on Trump's reputation is itself necessary at this point.  The world must know that what has been done is a violation of our democracy and that our democracy is stronger than this one man.  He may "get away with it," but he can not declare victory like he did after the last impeachment when he was exonerated by the Senate.  Not being exonerated is actually a more powerful negative legacy than being tried and let off the hook in the Senate.  For that reason, it is the perfect kick in the behind on his way out the door.



JTSA Statement: "A Stain on our Civilization"

 

YESTERDAY’S EVENTS IN WASHINGTON ARE A STAIN ON OUR CIVILIZATION

JTS Statement on Wednesday’s Riot at the Capitol

The rabbinic tradition created the concept of Seven Noahide Commandments, a set of standards deemed to be incumbent on all of humanity, constituting a minimal set of laws that defined civilized societies. These commandments included such obvious prohibitions as those on murder, incest, and theft, but they also included one positive obligation: the requirement that every human society must establish institutions through which justice is administered fairly and consistently, and not left to demagogues in the streets. Like our American founders, the Rabbis understood that one of the signature elements of an uncivilized society is one in which “justice” is pursued outside the supervision of its authorized institutions. 

What Americans saw in Washington on Wednesday has thus created a stain on our civilization that our children will be hard-pressed to explain to their children and grandchildren when they read about it in school. And as Jews, to whom America’s democratic institutions have been kinder and more generous than any authority under which we have lived for two millennia, this should feel particularly personal and hard to endure. We will be able to begin to remove this stain only if all citizens of good will recognize how a gradual but relentless tolerance of falsity has led us to this moment. Psalm 85 reassures us that “Truth springs up from the earth.” That is, the civilizing power of truth can grow back from its ravaged roots. But only if we have the fortitude to insist that those who stand in the way of truth are challenged and held to account.

Thursday, January 7, 2021

January 6, 2021: Insurrection, Terrorism or Riot?

A day of national shame and embarrassment. 

I spent much of January 6th 2021 watching agape at the violence at the Capitol building, as Trump coalition extremists attacked our democracy and the seat of its government. 

The vast majority of the enormous crowds that assembled came to Washington peacefully and left Washington peacefully.  And like last summer's protests for racial justice the acts of the extremists and the violent must never be equated with the peaceful majority.  Perhaps today some who wrongly accused the BLM marches as riots will understand that more clearly.  Hopefully those who were wrongly accused last summer will see a parallel call in their reactions to yesterday's terrible events. But, just like last summer, those who crossed the line to illegality must be prosecuted.  But for what, specifically?

All of sound mind and patriotic beliefs join in condemnation of the attack, with the mind-boggling exception of President Trump himself who released a horrific statement assuring them of his love and understanding and reiterating that the election had in fact been stolen.  Despite his weak call for "peace,"  he justified the whole thing soon after in a tweet saying "this is what happens" when [falsely] an election is "viciously" stolen from patriots.  Twitter then suspended his account for incitement to violence.

In the days ahead the abysmal failure of the Capitol Police department, the presidents' refusal to approve the mayor of DC's request for National Guard support, and the obvious disparity between how these protesters were treated compared to the BLM protesters of last summer, will all be investigated and pursued.  Those are not today's topic, even as they must be immediately addressed to secure the inauguration ceremony on the same precise location 13 days from now.

Today's topic is, "What the hell just happened?"

All who perpetrated the breach on Congress must be prosecuted to the full extent of the law.  But what law?  There are 4 prevailing crimes that need to be considered.


Here are 4 important definitions to objectively consider.


Insurrection is organized, usually violent, opposition to a recognized government or authority to thwart their legitimate function.  

Terrorism is the unlawful use of violence or intimidation, often against civilians and non-combatants, in pursuit of political aims.

Riot is a violent disturbance of the peace by a crowd for any purpose.

Incitement is the action of provoking any unlawful behavior OR urging someone to to behave unlawfully.

There are two main sources of incitement in yesterday's attack on the Congress.  The first are the President and those who spoke at the Save America rally from 10:00 a.m. - 2:00 p.m. at the White House Ellipse, ending with the President's explicit call to march to the Capitol.  I spent over 2 hours watching those speeches, and the urge to go to the Capitol was specific, but not explicitly violent.  The fact of the attack was not explicitly named, but that was the actual result.  The second are those extremist voices online who organized their people to come prepared for this action.  The first group may have "provoked" the violence, which would be sufficient cause for prosecution.  The second is "urging" and planning, and the online organizers of the extremist groups are indicated here.

As far as Riot, this seems to be the lowest bar and is obvious to all.  At the very least, this is what happened, and those who unlawfully tore down barricades, and those who entered the building are all clearly rioters.  This is a very large number of people.

Many are shocked that there is talk of terrorism.  Yet this is clearly the case.  Those individuals who used violence against the Capitol Police did so as an "unlawful use of violence or intimidation... in pursuit of political aims."  It is clearly an act of domestic terrorism, and if you are shocked by that it is time to stop and seriously rethink your world view.  An act of terrorism does not need to include prior planning or intent, nor does it require connection to other known terrorists.  The fact of the act of violence or intimidation for political aims sufficient for prosecution as a terrorist.

Finally, President Elect Joe Biden named this as an insurrection.  This is a technical term, with serious implications.  We can expect his incoming Attorney General to pursue this charge against all who entered the Capitol building, at the very least.  In this case, it will most likely be aimed at extremist leadership and extremist groups who overtly planned and implemented the attack on the Capitol.  Their purpose was to overthrow or disrupt the function of the Congress as it performed its legitimate duties. The individual who sat in the speaker's chair in the Senate and formally proclaimed Donald Trump president is the clearest case.  Insurrection is the correct term.  This is not to be confused with rebellion which is "armed" attempts to overthrow the government, rather than organized attempts to oppose the authority.  Given the absence of weapons, there is no likely charge of rebellion.

Summary:

Extremist elements of the Trump base organized and planned for their organizations to foment an insurrection by attacking the Capitol on January 6, 2021 for weeks prior to the event.  Their method was to co-opt the energy of the Save America rally for their purposes.  The incitement of the crowd by Donald Trump, Jr., Rudy Giuliani, and President Trump fed into that plan and inspired a deeper portion of the crowd to participate in the incursion onto the Capitol steps and platforms.  A riot ensued and was declared by the police. Violent acts of domestic terrorism occurred as the insurrection became more successful than even the planners could possibly have hoped.

Today those who led the criminal insurrection are certainly proud of themselves and consider yesterday's events to have been remarkably successful.  Tomorrow the justice system must weigh in firmly and persistently to prove them wrong.  "Throw the book at them."  All 4 crimes are indicated, along with many many other related offenses from destruction of property, to federal parks and monument laws, to attacks on and attempted murder of police officers while in the performance of their duties.  

This is beyond serious, and if our democracy is to be asserted unequivocally it must be prosecuted fully, without mercy or leniency.





Tuesday, January 5, 2021

The Momentary Victory of Democracy: a Poison Pill

The Senate runoff election in Georgia today and the Congressional count of the Electoral College tomorrow bring our national trauma to a formal end.  The days until January 20th will quickly pass and the inauguration of President-elect Joe Biden will happen.  A blue senate will empower Joe Biden to quickly build his cabinet, fill and restart the federal government and put forth a legislative agenda to fulfill his many domestic campaign promises.  A red senate will force the Biden team to satisfy themselves with Executive Branch powers for the duration of his presidency, as incumbent parties usually lose ground in interim elections.  Either way, we will experience a return to normalcy in the form of daily politics and the daily work of government.  I am, however, worried that we have swallowed a poison pill that the January 6th Congressional political drama will leave in our Democratic system.

The framers of the Constitution created the electoral college system, and the bicameral legislature as a series of internal checks to block the accumulation of national power in any one region or class of citizen.  The Electoral College has functioned exactly as it is designed to do:  the winning candidate could not rely on massive victory in heavily populated urban centers in order to gain victory. Biden won by over 7 million votes. But his victory depended on broad regional support in the East, the West, the South and the Midwest. The system held.

And then it came under excruciating attack by a recalcitrant incumbent looking for any tool in the law to bend the system to his will. Brazen or bold, President Trump has exposed our achilles heel.

Our election was organized and administered on the local and state levels, as is good and proper.  Local election officials oversaw thousands of hours of volunteers and paid personnel to count - and often recount and audit - and eventually certify the results under the signature and seal of the chief electoral official of each state.  Those certifications, done for two months now, determine the slate of electors who all voted according to federal law in early December.  Their votes were certified, sealed and delivered to the National Archives and the Congress for announcement tomorrow.  Every state has competed their process without alternative slates or disputed outcomes.  The system doesn't care what the outgoing President thinks.  

However, the formal challenge to electors planned for tomorrow in the Congress he has laid bare a glaring vulnerability that the framers of the Constitution seem to have overlooked:  What if the Congress doesn't care who won the election and only cares to put their own champion in power?

Throughout this process, the Trump team has been simply incapable of accepting a world that has openly and knowingly rejected his leadership.  Trump has adeptly grown his own base to record size, receiving more votes than any sitting president in history - a fact that has inflated his disbelief.  How can he be doing better than he has ever done in numbers of followers, and still lose the election?!  The pure truth is that an even larger number of Americans grew to oppose him at the same time. He is both more popular than ever, and less popular than ever.

The political pie in 2020 grew by over 10 million new votes compared to 2016, and Biden got a bigger piece of the bigger pie.  Yes, Trump had more pie to eat this time, but that doesn't make him a winner.  That basic understanding eludes him. 

Raging and roiling, last night the President continued to push lies and delusions about his lost election while ostensibly campaigning in Georgia for the Republicans to hold the Senate.  He is  actively pressuring members of Congress and Vice-President Pence to invent some form of irregularity in the counting of the Electoral College to fabricate a Trump win.  

He is crazy and deluded, but he is also not wrong.  Congress does have the power to vote to reject individual states' slates of electors and they may do so without any cause or reason. The framers put two procedural blocks into place against abuse of this power:  first, both houses (the Senate and the House) must separatly and independantly vote to reject a state's slate of electors; second, the Senate and House have no ability to chose or name new electors to replace rejected slates.  Those are significant hurdle, but not impossible if one party were to hold a majority in both houses of the Congress.

The checks and balances don't work if the Congress is willing to reject electors "just because."  This was unthinkable by the framers.  Who would be so brazen as to ignore the actual election and simply ignore the states' certified slates of electors.  Well, we now know it is not only very possible, but it is actually happening before our very eyes.

Over 100 Representatives and 11 Senators have declared that they will do just that tomorrow.  Without any court case to support them, or alternatively appointed legal slates to choose from, those Congressional representatives will now use the system to force a poison pill down the throat of the American Democratic system.  The only thing stopping them from actually renaming Trump president is the fact that the House of Representatives has a majority of Democratic members. We know this, because they did a directly analogous thing with the Supreme Court by denying Obama's last appointment, and giving it to Trump.   The only reason more are not joining this charade is the fact that it will fail.  Were that not the case, the entire Republican party would be rallying to the flag of Trump and overthrowing the election.  

For now, the system held.  Biden won 306 electors.  The Senate and House together would need to each separately reject the slates from Georgia, Arizona, Nevada and one more state (Wisconsin, Michigan or Pennsylvania) to drop Biden below 270 and throw the election into the House of Representatives (where, voting by state legislations, Trump would win).  If the Congress were in the hands of the Republicans, they could simply do so.  The Constitution does not demand any reason for rejecting electors, only a political process by which to do so.  This is obviously counter to the intent of the framers, which granted this power in the event of competing electors from a broken state-level electoral process.  The idea that a federal body could simply vote away a state certified election for federal political purpose would have appalled them as the worst form of federal corruption.  Something of that nature happened in 1876, with long lasting effect on the country's failed reconstruction in the wake of the civil war.  You can read about that here.

From now on, any time both houses of Congress are held by a single political party in a Presidential election year, that party will be tempted by this power to simply ignore the national election and choose their own president. This would be the death knell of American Democracy.  The flaw in the system is laid bare, and it must be fixed.  The Constitution must be amended to eliminate the Congressional Objection to certified slates, perhaps leaving the challenges to be settled at the Supreme Court based on law rather than politics.