BeldarBlog

Friday, June 28, 2024

Beldar reacts to the first 2024 presidential debate

Of all the corn ever grown, popped, and consumed — during the entire 10,000+ years since corn was domesticated in what's now Mexico — no popcorn has ever been consumed with such profound and righteous satisfaction as that served at former Special Counsel Robert K. Hur's house during last night's presidential debate.

Well played, sir. Well played!

*******

Meanwhile, in an alternate, more rational universe parallel to our own:

Associated Press World Newsfeed
URGENT! To all bureaus for immediate release:

BIDEN DROPS OUT!
Post-debate musical chairs shocks & transforms DC, entire world

Dateline: Washington, June 28, 2024 — 3:35PM local

President Joe Biden stunned the White House press corps this afternoon in an unexpected snap press briefing one block from the White House at the Hay-Adams Hotel. Accompanying him on the speaker's platform were Vice President Kamala Harris and Associate Justice of the Supreme Court Sonia Sotomayor. From the President's prepared text, as read by him for video (both simultaneously released for immediate worldwide distribution):

"Good afternoon, ladies and gentlemen of the press. Today I have four announcements to make.

"First, with the nation's gratitude and respect, I announce the retirement from active to senior status of Madam Justice Sonia Sotomayor — the Wise Latina, whose opinions will live in history as beacons to those who value civil rights and civil liberties — effective immediately upon the confirmation of her successor by the United States Senate.

"Second, I have the privilege and pleasure of announcing that for the seat on the Supreme Court that Justice Sotomayor will be vacating, I am nominating, by letter transmitted to the Senate today, a lawyer whom I have known and worked elbow-to-elbow with in the toughest possible circumstances, and who, as a prosecutor and then a state attorney general, and then a member of the Senate Judiciary Committee, has already had a profound impact in securing justice for all Americans — my Vice President, Kamala Harris! Her resignation from the Vice Presidency will become effective upon her confirmation to the Supreme Court, which I call upon the Senate to do at least as promptly as it confirmed Justice Barrett, who was nominated as Justice Ginsburg's replacement even closer to the 2020 election, yet still confirmed before it.

"Third, I today respectfully withdraw my name from the consideration of my Party to be its presidential nominee this November. I hereby unconditionally release all delegates pledged to support me. In August, in Chicago, the Democratic Party will have the first open convention in many decades, at which the torch of leadership will be passed to a new generation — one around whom the entire Party, and all American voters, can rally. They will rally, too, in opposition to my opponent: a convicted felon who's called in writing for the termination of all rules, including the Constitution, that required him to leave office in 2021 after every single one of his court challenges failed.

"And fourth, and finally: When the Democratic Party has picked my replacement as its 2024 presidential nominee, I will on that same day proudly nominate him or her pursuant to section 2 of the Twenty-Fifth Amendment to serve as the replacement Vice President until the next Vice President is inaugurated on January 20, 2025. I shall of course continue my own term as President through that same day, when I will peacefully hand it over to a successor. But thus will first my Party, and then the Congress, and then my Country, have in short order the fullest and fairest opportunity to choose to whom the torch of Executive Branch leadership shall be passed by me and by Madam Justice-nominee Harris. And next year, she can begin polishing an opinion restoring Roe v. Wade, while I, even more happily, can go back to polishing my Corvette.

"It has been the honor of my life to serve my country — in the Senate, in the Vice Presidency, and as the Forty-Sixth President of the United States. But it is likewise my duty to acknowledge that time waits for no one, and that I can now best serve my country's future through the course I've announced today. May God bless you all, and may God bless America."

— 30 —

Posted by Beldar at 07:42 AM in 2024 Election | Permalink

Monday, June 24, 2024

Distress ain't duress: a disagreement with Kevin Williamson about Rahimi

Today I found myself in a rare disagreement with something about guns written by Dispatch Media's Kevin Williamson. He wrote about the SCOTUS' just-released United States v. Rahimi decision, which holds that "[w]hen an individual has been found by a court to pose a credible threat to the physical safety of another, that individual may be temporarily disarmed consistent with the Second Amendment" — meaning, in turn, that the federal statute under which Rahimi had been convicted was not unconstitutional.

Regarding the agreed domestic violence restraining order, Rahimi's possession of firearms in violation of which had led to his federal criminal conviction, I had this to say about what Mr. Williamson had said:

Rahimi voluntarily entered into a restraining-order agreement, partly under duress from the threat of being made to pay the other party’s legal fees if he contested the issue and lost.

That's not duress, Mr. Williamson. If that were duress, then every settlement I've ever made on behalf of any litigant who faced downsides — which is to say, every settlement — was made under duress. It makes the term meaningless.

I actually had a pretty good duress defense to the enforcement of a contract a few years ago: My Canadian client's CEO was negotiating in Indonesia to sell its interest as operator in an oil field owned by the state oil company, Pertamina, to a larger, Dallas-based company that the Indonesian government favored. The negotiations reached an impasse. When my client went to the Djakarta airport to return to his home in Canada, he was surrounded by soldiers with automatic weapons who seized his passport and took him to a cell in a military base, where he found on the table the contract he'd refused to sign, along with grinning representatives of the would-be buyer. The soldiers told him he'd be released only if he signed, and then they'd hang onto his passport for a few weeks to ensure compliance. He signed, but when released, hitchhiked to a smaller coastal town from which he could bribe a fishing boat to take him to Singapore. From the Canadian embassy, he faxed a message to the buyer disclaiming his signature, which prompted the buyer to sue him and his company in federal court in Dallas, which is where I got involved.

The judge who was hearing the preliminary injunction proceedings, the Hon. Barefoot Sanders (whom I know you'll recall at least by name), allowed how this was the most textbook case of duress as a defense to enforcement of a contract that he'd ever encountered, at which point the buyer dropped its injunction request. But eight more years of litigation ensued, and that's too long a story for these comments.

Anyway: Boo, hiss for repeating here a "duress" claim that is utterly specious. Just like one has a Fifth Amendment right to remain silent that most defendants throw away with both hands despite having been given a Miranda warning, one can likewise waive one's Second Amendment rights foolishly and without much ado.

Mr. Williamson promptly replied: "The problem with lawyers is that you think the legal use of a word is the only way to use the word." And that is a fair cop, guv — one of many problems with lawyers, so stipulated.

But that got me pondering, and in response to another commenter who'd said that on first reading he hadn't thought Mr. Williamson was using the word "duress" in a legal sense, I replied:

I don't doubt or fault that, Mr. __!

But in this context, what sort of duress did you think Mr. Williamson was referring to Rahimi being under? And why was it relevant?

I sort of feel like this is akin to the scene in "A Few Good Men" when Lt. Kaffee asks Col. Jessup if his reference to danger in his previous answer meant "grave danger," and Jessup replies, "Is there any other kind?"

So I ask, in good faith and with respectful curiosity:

What other sense of "duress" is relevant to a discussion of the fact that Rahimi agreed to entry of a civil domestic violence restraining order against him? Is there a difference in the non-legal sense, whatever that is, between duress and distress? The latter isn't also the name of a legal defense to being bound by one's own past agreement. But was Mr. Williamson just urging us to feel sorry for Rahimi, or what?

My favorite lines from the majority opinion by Chief Justice Roberts is this, at the conclusion of his presentation of the underlying facts: 

The police obtained a warrant to search Rahimi’s residence. There they discovered a pistol, a rifle, ammunition — and a copy of the restraining order.

This is the Chief Justice at his most droll. 

Posted by Beldar at 10:49 PM | Permalink

Friday, June 21, 2024

Regardless of how you assess its legal strength, the Manhattan DA's case against Trump was factually devastating

Jonah Goldberg's latest newsletter at The Dispatch — entitled "No, We Are Not Living in ‘Late Soviet America’: What Niall Ferguson’s recent Cold War analogy misses" — is superb, an excellent example of the shrewd analysis to be found in Dispatch Media's online writing, podcasts, and videos. At least as of the moment I'm writing this, it's not paywalled — although membership at Dispatch Media, the content it brings, and the commenting community to which that opens access, would be an incredible bargain at triple the price. 

What follows below (as slightly edited) is from a comment I left on that particular newsletter — a comment which has nothing to do with its main subject (which the title and subtitle succinctly describe), but instead expresses my frustration with Mr. Goldberg's continuing description (in passing here, but consistently lately in other essays and podcasts) of Manhattan District Attorney Alvin Bragg's successful prosecution of Donald Trump as "weak." (For my position on the extent to which Bragg's prosecution was politically motivated, see my post from June 10, 2024.) For context, in my comment as reprinted below, I was responding specifically to this from Mr. Goldberg:

New York’s prosecution of Donald Trump was politically motivated, and Manhattan District Attorney Alvin Bragg’s legal case was weak. Granted. But Trump was not detained in a “torture dacha” pending trial, and his family wasn’t threatened with execution or prison ... [continuing, persuasively, with other significant differences].

My response:

--------

It's very fair to say that the Manhattan prosecution of Trump was widely considered to be a weak legal case by legal pundits when it was first filed. I was one such.

But at the recommendation of my friend Patrick Frey aka Patterico, I invested the time to read Judge Merchan's pretrial order of February 15, 2024 — weeks before the trial began. In it, he comprehensively reviewed the relevant New York business records falsification statute, and he tested the evidence Bragg's team produced in response to Trump's motions to dismiss against that law. Trump's motion to dismiss was granted as to one of the prosecution's theories. But legally, Judge Merchan was on well-trod ground. The only thing that was novel wasn't the law, but the facts: "Wow, what a fraud! And for what a nationally consequential motive and possible effect!"

But as the trial itself established, Bragg's case on the facts turned out to be very, very strong. It was constructed from witnesses and documents other than perjurer and coconspirator Michael Cohen. Even on the absolutely key question of Trump's personal involvement so as to prove beyond a reasonable doubt that he had "made or caused" the falsifications, there was both direct evidence — Allen Weisselberg's handwritten notes calculating the "grossing up," essential to covering up the falsification of the hush money payment in Trump's own records — plus the overwhelming inference, including public brags from Trump himself, about how he squeezed every nickel while examining it under a microscope. Even without corroboration through Cohen, this other evidence, if credited by the jury, would have been enough to sustain a conviction on its own. But as it turned out, Cohen — like so many other flipped witnesses, including literal murderers and international terrorists — turned out to be very damned credible on the stand.

So please, Mr. Goldberg, if you are going to continue to insist that Bragg's case was legally weak, at least acknowledge that it was factually devastating. And of course, I trust you will agree that Trump was his own worst enemy —

• insisting on disputing the affair, thereby throwing open the evidentiary (relevance) door to salacious details;
• the stage-whispered comments ("Bullsh!t!"), and all the mugging and drama and then, disdain for the jurors by sleeping or simulating sleep;
• the conspicuous attempt to sway the jury by bringing powerful politicians kissing Trump's ring (or something);
• the disastrous decision to call Robert J. Costello as the only substantive defense witness;
• the ten criminal contempt convictions (each proved beyond a reasonable doubt);
• Trump's lawyers' overpromises in opening statement and insults to the jurors' intelligence;
• permitting a BigLaw civil litigator and BigLaw deal lawyer on the jury, where they likely functioned as teaching assistants for the prosecution team

— and I could go on and on.

Again, I know the Manhattan prosecution was not the subject of this newsletter. But I hope you and others will look at it afresh, post-verdict.

Posted by Beldar at 01:45 PM in Law (2024) | Permalink

Thursday, June 13, 2024

Observations and conclusions regarding the House's referral of criminal contempt of Congress charges against Attorney General Merrick Garland

(1) Our starting point is that criminal investigations, state and federal — broadly defined to include communications, deliberations, and gathering of witnesses' testimony and evidence of all sorts — are universally treated as confidential by law enforcement authorities including prosecutors. The law recognizes and promotes that confidentiality by treating information and materials relating to the investigation as being privileged from compelled disclosure through, for instance, a subpoena. If the investigation results in charges, especially if it eventually results in a public trial, then some considerable portion of that information and those materials may end up becoming public as part of the prosecution's proof of its case, or if it's exculpatory, in response to defense motions to produce. A public trial may not reveal inculpatory materials from the investigation that were too hinky for an ethical prosecutor to rely upon. And when the investigation never results in charges — which is true in the very large majority of investigations — law enforcement authorities and prosecutors uniformly refuse to comment, typically not even confirming (or denying) whether there is (or was) indeed an investigation, and likewise refusing to confirm or deny that it's been closed without charges. These materials remain confidential forever (unless perchance an investigation is re-opened).

(2) The investigation of President Biden's retention of classified documents from his vice presidency, though, obliged the Attorney General and the executive department he heads to investigate the AG's boss — an ethical conflict of interest. There's no perfect solution to such conflicts of interest, but the way they're currently handled is through the appointment of a special counsel — someone who still reports to the Attorney General (and through him, ultimately, to the POTUS). Unlike the 92 U.S. Attorneys for the various federal districts and other DoJ prosecutors, the special counsel, under the current regulations (codified at 28 CFR part 600), can in theory (and in practice so far) only be fired for cause (although it's still the AG making that often subjective determination on "good cause"). Special counsel also have some national geographic jurisdiction that regular U.S. Attorneys have to get special permission to exercise, and there are additional financial and staffing resources made available to help ensure as much independence as can be effectively simulated.

Ultimately the POTUS can still fire an AG who refuses to fire a special counsel, though, as happened in the Saturday Night Massacre during the Watergate investigation — and that chain of authority is probably required for special counsel to have authority to prosecute in court on behalf of the United States. To compensate in part, the regulation prescribes limited sunlight: The AG must advise Congress when a special counsel is appointed, and if the AG has overridden or reversed a prosecution decision or other major decision, and if the special counsel has been fired or replaced, and if the special counsel has closed his or her investigation without public result. This is only a barebones notification, though. By contrast, each special counsel is obliged under the regulation to write a full report to the AG at the conclusion of his or her duties; by default, those reports, and the materials (including witness interviews and grand jury transcripts) upon which the reports are based, remain confidential within the DoJ — just like all other criminal investigational materials than haven't been made public through indictment and trial. The regulation gives the AG discretion to release all or part of a special counsel's report to Congress or the public. But it also gives the AG discretion to refuse to release, or to delay releasing, a special counsel's report — especially parts whose release might compromise other ongoing investigations or otherwise harm the public interest.

(3) In practice, notwithstanding the regulation's confidentiality protections, Congress and the public have come to expect AGs to release all or most of such special counsel reports, at or near the same time the AG advises Congress that a special counsel's investigation has been concluded. President Trump's second AG, Bill Barr, as per a strong (but not ironclad) assurance he'd made during his confirmation hearings, thus released most of the Mueller report, albeit with extensive redactions, shortly after he and Deputy/Acting AG Rod Rosenstein advised Congress that Mueller's investigation had been completed in a report of their own about Mueller’s report. (Garland has since released a less-redacted version of the Mueller report in response to FOIA suits.) And during AG Garland's confirmation hearings, when he was quizzed by senators about then-ongoing work of special counsel John Durham, Garland likewise gave strong (but not ironclad) assurances that he'd release Durham's report. Since then he's extended that public near-promise — an unwise one in my own judgment — in writing for all special counsels appointed during his tenure.

Thus did politics effectively gut the discretion the regulation gave to just say, "Nope, the AG has determined that releasing the report on this investigation that didn't produce an indictment actually doesn't serve the public interest." And thus was Garland so hoist on his own petard that with Hur's report and its declination-of-prosecution decision, Garland didn't even repeat Barr's gambit (with the Mueller report) of first releasing his own statement about the report, then delaying the report itself for a couple of weeks to do redactions. But Garland has surely pleased the White House by resisting the release of the audio.

(4) Political motivations and consequences aside, however, as a legal proposition, by voluntarily releasing the Biden interview transcript along with Hur's report, not just in private to the chairs and ranking members of the House and Senate Judiciary Committees, but also to the public at large, AG Garland thereby waived — conclusively (because you can't un-ring the bell) and knowingly and deliberately — the investigative privilege that would otherwise have protected the written transcript against attempts by either Congress or private parties to force the transcript's public disclosure through a subpoena.

(5) The nature of a privilege against compelled disclosure that's being waived doesn't depend on the method of recording that which has been gathered in the investigation. The privilege attaches to the substance of what's been recorded, regardless of the means. (The means might become important if there is a dispute about the accuracy of the transcript; here there has been no basis even alleged, much less shown, to believe that, and their accuracy is certified by licensed professionals.) As with other waiver cases in other contexts, once the substance has been deliberately revealed — once the horse is out of the barn, indeed slapped on the rump by the farmer on his way out the barn door — the privilege is gone as a basis to resist an otherwise lawful subpoena. So: Is the House subpoena otherwise lawful?

(6) Congress has oversight responsibilities for the actions of the Executive Branch, including the Department of Justice. But those responsibilities do not extend to the details of individual investigations and prosecutions: While it can re-write the laws for the Department to use in dealing with all persons, it may not re-write laws, or consider re-writing laws, to deal with the criminal responsibility of a single particular target or defendant. (If it did so, it would run afoul of the Constitution's prohibition against bills of attainder, i.e., laws directed at particular persons rather than at the public generally). Ordinarily a Congressional subpoena demanding materials relating to one specific investigation would therefore fail when Congress tries to enforce it in court (assuming it can get a lawyer with authority and standing to so argue on behalf of Congress in court, that role normally belonging to, you guessed it, the AG). The House Judiciary Committee's subpoena of AG Garland attempting to compel him to produce the recorded audio version of the transcript is therefore invalid, as being beyond any proper legislative purpose. Of course Garland cannot be prosecuted for contempt of Congress after timely and properly objecting to the subpoena's validity (which the DoJ has done, in contrast to, say, Steve Bannon or Peter Navarro, who just ignored their subpoenas altogether).

(7) Whether a news organization might now be able to get the audio version under, e.g., the Freedom of Information Act, is a different question legally. I don't know the answer to that, but it might depend on whether DoJ's voluntary release of the substance of the interview, in the form of the written transcripts, waive objections that the DoJ would otherwise have — not only per its usual practice and tradition of confidentiality, but by specific statutory exemptions to FoIA. It would surprise me to see that litigation play out before Election Day, however.

(8) The assertion by AG Garland that disclosure of the audio will hamper future law enforcement is silly and disingenuous, unworthy of a man who sat as chief judge of the D.C. Circuit bench: Any potential future deterrent effect on witnesses voluntarily giving information if they fear their recorded voices will be disclosed (absent extraordinary circumstances, e.g., transcripts of confidential informants whose very identities are secret; Joe Biden's isn't) could only possibly apply in the tiny fraction of cases that result in special counsel appointments, and further, in which the AG has independently exercised his discretion to release the special counsel's report (and supporting materials including written transcripts of the recorded audio). The FBI isn't generally luring witnesses into cooperation with promises to keep secret only the audio version of what the witnesses say, while reserving the right to broadcast the transcription of the same interview. That would be nonsense, without some particularized reason that the audio had legal significance distinct from the transcript. (Political significance is no part of this equation — or at least, shouldn't be.)

(9) Likewise, the assertion by AG Garland that for purposes of privilege determination (investigative or, as discussed below, executive privilege), one can preserve privilege as to an audio recording of an interview, the transcript and therefore the entire legally relevant substance of which has already been released, is frivolous: substance having been waived, form doesn't matter. (Note that when AG Garland released the transcript of Hur's interview to Congress and the press, he didn't even attempt to carve out and preserve an exception to the broad substantive waiver for the audio version. This is all a post hoc rationale, contrived just to oppose the subpoena.)

(10) Finally, the argument that President Biden and the Office of the Presidency can invoke executive privilege — as opposed to the DoJ invoking its already deliberately waived investigative privilege — is again an offensively stupid argument. Yes, technically Hur was in the Executive Branch's chain of command. But he was as far independent of it as Neal Katyal's clever regulation-drafting could manage. And Hur was not aligned with, but formally adversarial to, Biden's interests in these interviews. That's why Biden had his own personal lawyers present, plus White House counsel to represent him in his official capacity. Hur was not a close advisor of a POTUS whom we expect the POTUS to be able to trust for confidential advice, but someone who potentially might be indicting him, and who certainly wasn't there to give Biden forever-confidential advice and counsel. Shame on anyone who even pretends for an instant that this qualifies for executive privilege; that is a wild overreach that reeks of Trump's absolute immunity argument, or Nixon's excuse to David Frost that "It's not illegal when the President does it."

CONCLUSIONS: The House referral of AG Garland for prosecution for contempt of Congress is invalid because the underlying subpoena is invalid — but the Biden DoJ and its AG are being extremely disingenuous in resisting it anyway. Their resistance is transparently, exclusively political and legally laughable. If this referral somehow makes it to court, the judge should declare a pox on both of their houses (i.e., on the House’s subpoena and the DoJ’s claims of privilege), and therefore dismiss Congress' attempts to enforce the subpoena as a nonjusticiable political question that the federal courts must abstain from answering.

(Congress as an institution is not left without other means of pushback, including structural reorganizations and the power of the purse; but they’re all likely to require both chambers’ approval, and that is unlikely.)

Congressional Republicans won’t get their audio. But they are still free to argue to their hearts' content — in the court of public opinion, and in connection with the upcoming election — that there must be something politically awful that's unique to the audio and that is the true motivation for refusing to release it. They may justly ridicule the DoJ’s audio-only privilege claims and purported rationale for refusing to produce the audio.

But the subpoena is invalid not because of any privilege (waived or otherwise), but simply because it went beyond a legitimate legislative purpose of the present Congress. House Republicans can certainly try to politically shame Biden and Garland for their very shameless stonewall of the audio without any proper legal ground for doing so; but the House nevertheless has no legal or practical tool (short of impeachment, and good luck with that, yet again) to compel Biden or Garland to dismantle that stonewall.

And you, members of the public, friends and neighbors, once again should realize that neither side of this dispute has been telling you anything remotely approaching the truth about these issues and their respective disingenuous positions on them. Your continuing skepticism of all concerned is well justified.

Alas, even without having heard the audio, no one can fault the obvious political calculation shared by both sides in this shoddy affair:

In all likelihood, there's absolutely nothing the audio would show that the transcript doesn't. I've read the transcript; it does not make Biden look good, but rather thoroughly justifies Hur's report’s characterization of Biden's mental acuity and its limitations. But almost no one will read so much as ten pages, or ten lines, of the transcript — whereas a sound bite in Joe Biden’s voice, endlessly replayed, could swing a close presidential election.

Posted by Beldar at 04:07 PM in Law (2024) | Permalink

Monday, June 10, 2024

Will the Defendant please rise? Beldar's crystal ball reading on Trump's Manhattan sentence

Between now and election day, on the Trump legal front, there are only likely to be two very big events.

One will be the announcement of the SCOTUS' decision on the absolute immunity case. But that is widely expected to be a loss for him on the merits, the extent of which will depend on how narrowly the SCOTUS circumscribes and defines the limits of a qualified presidential immunity. He might get one count of the DC case knocked out, which he will portray as a victory; but he assuredly will continue to face trial in DC and FL unless he wins in November.

But the second is going to be Trump's sentencing. Judge Merchan has, throughout this case, written clear and cogent opinions explaining his important rulings — replete with factual findings and record citations of the sort an experienced trial judge uses to create a record that will withstand appeals.

Contrary to the predictions of most other legal pundits, I think Trump's sentence is more than likely to include a term of incarceration. It will by statute be limited to no more than 20 years but almost certainly not more than a fraction of that. I'd be surprised if it exceeded four. But I'd not be surprised if it were two years. If I had to pick a single most likely sentence, it would be one year plus a tightly restricted and lengthy term of probation, plus fines, costs, and some sort of public service picked to have the most likely rehabilitative effect (which is to say, what he'll most hate). The incarceration would likely be a form of house arrest designed to accommodate the Secret Service.

If I were pronouncing sentence, I'd sentence Trump to two weeks (14 days) on each of his 34 felony counts, stacked to a total of 476 days (just short of 16 months). One fortnight per felony. Let him argue that that violates the Eighth Amendment ban on cruel and unusual punishments.

Here's my point: A lot of people who tuned in only briefly and from 40,000 feet to the trial itself still have only a fuzzy idea of what it was all about. They're were shocked and left somewhat mystified by the verdict. But they're going to be much more shocked by a sentence that includes incarceration.

And Judge Merchan's sentencing decision is going to be the most powerful, important compilation yet of all the nastiest details of both Trump's crimes as found by the jury, and all the other circumstances — including his criminal contempt findings, his lack of remorse, his unsuitability for and resistance to rehabilitation, and his continuing pattern of other fraud and civilly culpable misbehavior in other cases against him and his businesses — that can justify putting a former POTUS, or any person similarly situated, behind bars.

Judge Merchan's pronouncement of sentence will be the New York State criminal justice system's most important, concise, and powerful statement yet regarding Trump's criminal nature. Whatever any pundit or lawyer or Bubba says about it, their pronouncements will not end with "It is SO ORDERED." There is a wide gap between punditry and pronouncement of sentence, the former of which usually doesn't involve ankle monitors or cell bars.

And yes, despite what a lot of very poorly informed talking heads on TV say, there are indeed precedents that include incarceration for felony violations of the New York business records falsification statute under which Trump was convicted. He's old, but the prior civil and criminal determinations against him show he's spent many of those years engaged in fraud. He's a first offender as a felon, but not as a lawbreaker, and there were 34 of those felonies. The crimes were nonviolent, but not victimless — the entire public is victimized by electoral fraud, tax fraud, and business record fraud.

Trump has insisted on being his own top lawyer, and he's had history's greatest fool for a client. He has done everything imaginable to help create a factual record that will justify a sentence of incarceration, and there's almost nothing in the other pan of the scales of justice that weighs in favor of either the trial or appellate courts exercising their discretion over sentencing to his benefit.

Voters are unlikely to see him in cuffs before election day; any incarceration will surely be stayed pending appeals at least through the initial level, which won't play out until 2025. But the distillation of the entire criminal case into a number of months or years of incarceration, if that's part of his sentence, is going to have an even bigger impact than the verdict.

Finally: Even if you reject my analysis and go with the crowd that's saying "No jail time," surely we can all agree: No mere "slap on the wrist" is in the cards.

Posted by Beldar at 06:22 PM in Law (2024) | Permalink

Is Bragg Beria? An analysis of Trump's potential prosecutorial misconduct appellate arguments

For those critical of Manhattan District Attorney Alvin Bragg for supposedly "finding the man and then finding the crime," Lavrentiy Beria-like, in his office’s successful prosecution of Donald Trump, I present the worst modern example I could find of prosecutorial misconduct in running for office on a promise to convict someone. I then drill down into what Bragg did say and didn't say while campaigning, with the details that I think will fatally undercut Trump's prosecutorial misconduct claims on appeal. (I’ve omitted citations throughout, and all emphasis is mine.)

*******

In State v. Hohman, 420 A.2d 852 (Vt. 1980), Hohman was charged with murder for strangling a young girl. He was convicted of second-degree murder, but the conviction was reversed on appeal. Upon retrial, Hohman was found guilty of the lesser-included offense of manslaughter. And when he appealed again, Hohman argued that the trial court should have disqualified the state's attorney, Bolton, “for alleged unethical pretrial conduct."

So what conduct was that?

Shortly after the 1978 remand of this case, the state's attorney found himself in a battle for re-election. On November 6, 1978, he ran a large campaign advertisement in the Bennington Banner, a newspaper which circulates in both Bennington and Rutland Counties. The advertisement featured a photograph of the state's attorney, accompanied by the following message:

In 1976 I prosecuted State v. George Hohman and he was convicted of murder. The conviction was overturned because the judge allowed evidence to be improperly admitted, not because of prosecutorial misconduct….

… The Hohman case is the most important case pending. My opponent is disqualified from prosecuting George Hohman. If I am re-elected, I will vigorously prosecute Hohman and obtain a second conviction. Your support would be appreciated, Tuesday, November 7th.

And how did the Vermont Supreme Court react to this misconduct?

We strongly condemn the conduct of the state's attorney in this case. The awesome power to prosecute ought never to be manipulated for personal or political profit [quoting cases & rules:]

The [state's attorney] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

For these reasons, it was error for the state's attorney to fail to disqualify himself, and it was error for the trial court to deny the motion to disqualify the state's attorney. Furthermore, because serious questions exist as to the ethical propriety of the state's attorney's conduct, we will refer this matter to the Professional Conduct Board.

Suffice it to say that no lawyer wants his state supreme court to refer him to the state ethics authorities. This prosecutor went so far out of his way to break the canons of ethics, especially those applicable to prosecutors, that he may well have flushed his career, perhaps even his license, down a toilet — for a mere manslaughter conviction.

I'll come back to how Vermont prosecutor Bolton compares to Manhattan prosecutor Bragg, but before we set aside this remarkable opinion, we ought to ask: Did Hohman win based on this appeal point?

And the answer is "nopers":

As a general principle, error does not require reversal unless it is prejudicial to the defendant. While it is true, as defendant argues, that some courts have chosen to make prosecutorial bias per se reversible error as a matter of public policy, we are inclined to join those courts that have required some prejudice. Unethical conduct, however worthy of censure, does not necessarily deprive a defendant of a fair trial, and is therefore distinguishable from prejudicial error. For this reason, we have previously stated that, "aside from our particular interest in professional conduct, we must also adjudicate between the interests of the people of the State of Vermont and those of the respondent." This latter duty requires a determination of the prejudice to the defendant under the particular circumstances of the case at hand.

So was Hohman prejudiced by prosecutor Bolton's misconduct in running for the prosecutor's office on a promise to convict him?

Because the jury convicted the defendant of the lesser included offense of manslaughter, however, reversal is not warranted. On this record, as a practical matter, it is apparent that defendant could not have negotiated a plea bargain to an offense lower than manslaughter. Therefore, the jury's verdict cured the prejudice that resulted from the state's attorney's attitude by giving the defendant the best result he could have attained through plea negotiations.

Beyond the pretrial stage, we have carefully examined the record, and we are unable to find any instance in which the bias of the prosecutor touched the trial itself. [Long discussion of facts & record.] ... The defendant makes no specific claim of prosecutorial overreaching at the trial, and the record discloses none. It is uncontradicted that none of the jurors were ever exposed to the state's attorney's campaign advertisement. The transcript reveals an uneventful trial.... Therefore, in light of the overwhelming evidence of guilt, we find beyond a reasonable doubt that disqualification of the prosecutor would have had no effect on the outcome of this trial.... Since the pretrial prejudice was cured by the verdict, and no further prejudice appears, the actions of the state's attorney do not require reversal.

Hohman's conviction for manslaughter was therefore affirmed. Thus, even if the most trenchant of critics of Bragg are right — and I don't think they are, as explained next — the rationale of the Hohman decision would require those critics to show how anything Bragg said or campaigned on actually prejudiced Trump in his trial.

*******

On anything more than the most superficial examination — and most pundits don't appear even to done that, but have instead parroted a meme without checking — the Beria comparison fails because Bragg's campaign statements are nothing like Vermont prosecutor Bolton's.

The most detailed compilation of Bragg's campaign statements (with hyperlinks) that I've come across is this one from PolitiFact. It puts Bragg's statements in the context of the political campaign he was running to succeed retiring DA Cy Vance, Jr., who some argued was too beholden to the rich and powerful. All the candidates in this race were constantly asked, by the press and others, "What about Trump?"

In these settings, candidate Bragg's consistent formulation of his position about Trump was that he would continue his predecessor's investigation and hold Trump “accountable by following the facts where they go.” He pointed out that as a candidate, he wasn’t privy to the investigation, and that even if he were, he couldn’t predict where the investigation might lead. But Bragg also argued that of all the candidates, he was best equipped to see where the facts went, based in part on his own familiarity with the Trump Organization's methods and details:

When questioned on the campaign trail about the Trump matter, Bragg routinely cited his past experience as a chief deputy attorney general for New York state. In this role, Bragg oversaw more than 100 lawsuits against Trump administration policies including a travel ban and the administration’s attempt to rescind an Obama-era program that prevented the deportation of immigrants who entered the U.S. illegally as children. Bragg also sued the Trump Foundation over its alleged illegal coordination with Trump’s 2016 presidential campaign. A judge ordered Trump to pay $2 million as part of a settlement in that case.

Missing from Bragg's campaign rhetoric or later public statements as DA is anything like "Trump is guilty" or — like prosecutor Bolton in Vermont — any promises that if Bragg were elected, he would "vigorously prosecute [Trump] and obtain a ... conviction."

Bragg did not so much as venture a prediction on the likelihood of an indictment, much less a promise of conviction, ever! Bragg did not overpromise, nor, after the indictment, did he overstate the case he was bringing. In his press release announcing the charges, he reminded the public of Trump's presumption of innocence, and that the charges were only allegations until proved. Throughout the pretrial proceedings and the trial, Bragg's trial team behaved with propriety and professionalism, regardless of the fact that Trump and his surrogates did not.

It is fair to say that during his campaign for office, Bragg tried very hard to demonstrate to the public that if — and only if — the facts did indeed lead beyond an investigation, and on to a prosecution, then he was the best qualified candidate to represent the People of Manhattan in any such proceedings.

And so he turned out to be — thirty-four times in a row.

*******

This is all reminiscent of Thomas E. Dewey:

As a New York City [special] prosecutor [appointed by the governor to investigate and prosecute organized crime and its enablers in the justice system] and District Attorney in the 1930s and early 1940s, Dewey was relentless in his effort to curb the power of the American Mafia and of organized crime in general. Most famously, he successfully prosecuted Mafioso kingpin Charles "Lucky" Luciano on charges of forced prostitution in 1936. Luciano was given a 30- to 50-year prison sentence. He also prosecuted and convicted Waxey Gordon, another prominent New York City gangster and bootlegger, on charges of tax evasion. Dewey almost succeeded in apprehending mobster Dutch Schultz as well, but Schultz was murdered in 1935, in a hit ordered by The Commission itself; he had disobeyed The Commission's order forbidding him from making an attempt on Dewey's life.

Dewey rode his special prosecutor status through to election to the same office Bragg now holds, and his successes there propelled him to the governorship of New York and the GOP nomination for the presidency in 1944.

Of course, Dewey was not the first or only prosecutor to parlay success in that job into higher office. The Sheriff of Wall Street, Eliot Spitzer, rode that horse from chief of Manhattan DA Robert Morgenthau’s racketeering unit to the state attorney general’s office, and thence to the governor's mansion in Albany (and then out, memorably). Rudy Giuliani stormed from the Office of the U.S. Attorney for SDNY into Gracie Mansion, where he became "America's Mayor." And then there's our current VPOTUS, a heartbeat away from the presidency.

In our system of government, state prosecutor positions are commonly filled through elections. That's a fairly direct participation by popular democracy in the criminal justice system, but it's filtered through canons of legal ethics specific to, and more demanding of, prosecutors.

And we've recently seen a wave of prosecutors, particularly from blue enclaves, who've been booted by voters for inadequate representation of the public’s interest in justice. This, too, is democracy.

If you accept that state prosecutors should be elected positions, and that reformers and crusaders can and do indeed serve a public interest, then you should expect statements of the sort Bragg made about holding everyone accountable under the law, including those who quite prominently have skated beyond it.

And you should also give due — which is to say enormous! —regard to the fact that no prosecutor, on his or her say-so, can convict anyone. That's why we have grand juries, and trial judges, and petit (trial) juries, and appellate courts — to hold prosecutors to their burden of presenting first probable cause, then proof beyond a reasonable doubt in open court proceedings in which the defendant, represented by competent counsel, can challenge that proof and present evidence of his or her own.

If Trump had been acquitted, Bragg would certainly have taken a reputational hit, and nobody would be talking about Tom Dewey and him in the same breath. As is, Manhattan voters are likely to reward him with reelection for doing his damn job competently, and indeed, brilliantly — despite formidable challenges both legal and factual.

Posted by Beldar at 04:37 PM in Law (2024) | Permalink

Friday, November 20, 2020

Beldar's tale of Trump and Rudy G in 1984

I will share here a personal anecdote about Rudy Giuliani and Donald Trump, one which strikes me as particularly ironic in this season of insane lame-duckery:

Like most Americans who don't live in New York City, the first time Donald J. Trump ever pinged my personal radar screen was when he was mugging for the cameras at Herschel Walker's highly publicized signing by the USFL's New Jersey Generals in early 1983. But his name didn't stick with me at the time.

In early 1984, however, as a third-year associate at Houston's Baker Botts, I was privileged to be the most junior assignee to the litigation team representing T. Boone Pickens, Mesa Petroleum Co., and their deal partners in connection with their partial tender offer for Gulf Oil Corp. Although Mr. Pickens' bid was treated by the financial markets with great skepticism, it nevertheless had caused a big jump in Gulf's historically undervalued stock — action which in turn attracted all the bottom-feeders and sharp traders eager to do their drilling for oil on Wall Street instead of in the oil patch.

Among my tasks was to review and help our clients respond to civil investigative demands — basically administrative subpoenas demanding documents and information — which had been served by a joint task force from the SEC and the U.S. Attorney for the Southern District of New York, one Rudolph William Louis Giuliani.

Rudy G had only been in that job since the previous summer, but he'd already made waves and grabbed headlines as a crusading crime-fighter, so much so as to have already repeatedly stepped on the toes of the SEC's New York office, which considers that to be its job when it comes to insider trading and the like. So our litigation team was fully prepared when the SEC and SDNY jointly demanded that Mr. Pickens, Mesa, and their partners immediately turn over documents and information regarding any and all contacts between, on the one hand, any of our clients, and on the other hand, any of a long list of well-known arbitrageurs, sharks, and sharpies who were leveraging multi-million-dollar options one way or the other on Gulf stock.

These requests were of course incredibly broad, but my emphatic marching orders were to help our clients comply with them as quickly and with as little quibbling as possible: The last thing we wanted to see was any kind of action by the SDNY or SEC that might impede or even cast shade on our side's bid. And in fact, complying fully and honestly was easy, because Mr. Pickens, his company, and his partners — for whom this was not their first rodeo — had very deliberately and carefully avoided any contact with any of these arbs, sharks, and sharpies.

Still, we had to go through their requests carefully, individually, and with all due diligence — both complying and being seen to comply, leaving a full written record thereof. And I was therefore already in phone contact with my opposite number — someone extremely junior at the SDNY — to try to get a few clarifications that might make things go more swiftly.

I already was acquainted, by reputation from the financial news, with names like Ivan Boesky and Carl Icahn, so it was no surprise seeing that they were included in the SEC/SDNY demands. But one name was new to me, as a non-New Yorker: "Who," I asked my SDNY counterpart, "is this 'Donald J. Trump' guy you're asking about?"

"He's a schlub, but his daddy is a big slumlord here," he said, "and now Junior is trying to become a player on the Street. We think he maybe has been hanging around with some of the other people we've named, looking to scrape up the crumbs that might have fallen from their tables."

"Ah," I replied, "Thanks for that clarification, which I'll use to make the appropriate inquiries from our clients right away." (None of whom, it turned out, had ever heard of Trump, either.)

Thus I was unsurprised, during one of the GOP presidential primary debates in 2016, that when he was asked about his potential cabinet picks, Trump trotted out the name of Carl Icahn — who'd ended up bottom-fishing, and then unloading, Trump casinos decades later as they went through the wash-rinse-repeat cycle in the bankruptcy courts.

But it was a little bit surprising to me when Rudy G became such a Trumpkin, knowing that at least in 1984, when Rudy was the top law enforcement official on Wall Street, Trump had been on the SDNY's radar screens as a potential inside trader.

Posted by Beldar at 06:17 PM in 2020 Election, Law (2020), Trial Lawyer War Stories | Permalink | Comments (0)

Sunday, September 03, 2017

Harvey will and should affect future individual and political decision-making on the Gulf Coast, but is no excuse for governmental mandates to preempt those processes

In response to my post from Friday afternoon regarding the long history of continuously on-going debates, going back to Houston's founding in 1836, about flood risks and flood control, commenter mg wrote:

So many places in America are built in flood zones. These places will continue to flood until they move.

Continuous rebuilding is insanity.

That's a succinct version of an absolutely valid and near-universal concern I'm seeing in both national and local media as a result of Hurricane Harvey. I certainly don't disagree with the assertion that continuous rebuilding can be, and often is, insanity. I do think it's important, though, to put that concern into its appropriate historical, economic, and governmental contexts.

Of course there is second-guessing, after a catastrophe like this one, of the recent and continuing choices made by people who choose to live in or around Houston, or in or around any similar coastal flood plain. And as this comment implies, some of them have certainly made, and are continuing to make, decisions that are comparatively riskier than other people could endure.

As long as the choices are fully informed ones, however, I'm generally okay with that. Flooding is only one type of catastrophe. Other Americans choose to live in places where there are frequent blizzards, or where there is a comparatively high risk of forest fires, or earthquakes, or mudslides — and yes, even volcanos. Mother Nature and her planet have a wide range of methods they can use to remind us, periodically but emphatically, of our limits and our mortality as a species.

In general, I much prefer that those choices be left to the lowest levels possible:

• individual homeowners & businesspeople in the first instance, making free-market transactions whose terms reflect their respective evaluations of risks and benefits;
• local and county governments and flood control & water districts interacting with those decision-makers to address problems of scale;
• state government only becoming involved when problems of scale exceed those the smaller governmental units can handle; and
• the federal government only on a few well-defined subjects with interstate or international ramifications (Army Corps of Engineers & FEMA being the obvious ones).

That pyramid of authority crowd-sources the decision-making; better ensures the transparency of those decision-making processes; allocates responsibility preferentially at the levels at which inadequate public servants are easiest to spot and replace; and preserves as much economic and personal liberty as possible consistent with collective public safety. And indeed, that's pretty much the model on which Houston and the rest of the Texas Gulf Coast generally operate. Harvey isn't going to change that much, although it might occasion some re-definitions of responsibility along the margins — and that's appropriate as we learn from every new challenge like this.

A friend of mine who lives in Fort Bend County was telling me about an internet debate going on among residents there on the county emergency management's website. Some homeowners were claiming to have been surprised, or even affirmatively misled, about the long-term flood risks of their subdivisions. One of the county officials pointed out that to gain physical entry to these subdivisions, anyone and everyone quite literally has to drive up, over, and down these same levies that are containing the Barker and Addicks Reservoirs. Those are the man-made structures intended, and now still serving, to contain, temporarily, the run-off from directly upstream of Houston. And thus they're the ones from which these "controlled releases" are being deliberately made — despite the grim and utter certainty that they will indeed flood a limited number of neighborhoods — to avoid Katrina-scale failures that would produce thousands of deaths. You can't fail to know that your subdivision faces potential flood risks associated with those reservoirs unless you drive home with your eyes shut.

But some people have nevertheless had their minds closed to that possibility, regardless of what their eyes were seeing, and they will now have had their literal and figurative viewpoints adjusted by this flooding. Some of them will indeed proclaim, "No more! ­­¡Nada mas!" Accordingly, they'll sell — into a real estate market that is now hyper-aware of these risks, so depending on their urgency, they may incur relatively greater financial losses — and they'll relocate. But in every market there are — grim pun warning! — bottom-fishers who will hope to profit from others' panicky decisions. There will be buyers who are as tickled to buy, at some price, as these sellers are to sell. Both will end up comparatively "richer," given his or her individual evaluation of both tangible and intangible components of being "rich," after the transaction, including the fellow who's been made poorer by Harvey's floods. Time will tell whether in any individual transaction, the buyer or the seller made the best deal, but that's true in all such transactions, hurricanes or no.

I'm likewise okay with that. My ex, whose house in Meyerland once again did not flood, despite being severely menaced by rising waters of not only Harvey but other recent flash flooding in the neighborhood (including the "Tax Day" flood), commented to me that now, if she wanted to sell her house, she can truthfully represent that it "survived Harvey untouched and unflooded," when others four blocks over didn't. Her house's value relative to others in her subdivision has just gone up, actually — although the whole subdivision's average and cumulative values have surely gone down, at least for the present. Yet the things that have caused property values to rise continuously in that subdivision — convenience to downtown and the medical center, some of the best public schools in HISD (including Bellaire High School, from which all four of our children graduated), and a congenial community of relatively well-educated and diverse residents willing and eager to support the neighborhood's merchants and services and restaurants — are still present. They'll continue to play a part in people's future economic and personal decisions. Flood risk versus being zoned to really good schools: There are subjective elements to that comparison, and objective elements that affect some people but not others, and therefore there is no one "right" answer, no one size or one discount rate or one set of calculations that would work equally well (or at all) for all potential actors.

Independent decisions whether to move into or out of Meyerland, or Cinco Ranch, or Rockport, or any other afflicted neighborhoods and towns throughout the Texas Gulf Coast, should now and hereafter factor in all of the data and experience generated by Harvey. Harvey will have affected the price-point at which those decisions should flip if people are making rational economic decisions. But those individual decisions will still vary widely depending on individual risk tolerance, and on individual assessments of the compensating benefits which might justify a knowing assumption of those risks.

And likewise, as part of that process, those decision-makers should factor in the possibilities and probabilities of further short-, middle-, and long-term flood control prospects to guard against future storms and floods. Some of the houses in Fort Bend County that have been flooded by the controlled releases actually demonstrated before those releases that nothing short of a storm like Harvey will flood them, which in turn suggests that they're at relatively low future risk during "ordinary hurricanes," if there is such a category. But the chance of eliminating the risks associated with living next to those reservoirs is zero in the short and middle term. In Meyerland, by contrast, there are surely already engineers and planners crafting and computer-modeling short- and middle-term civic improvements, ranging from minimalist but important ones (keeping storm drains righteously cleared) to big ones (constructing new drainage waterways or deepening existing ones). Houston and Harris County politics are about to get a lot more intense, and lots of people who've been ignoring them are going to now be watching them and, yes, more actively participating in them, and not just on election day.

I'm all in favor of continuing the continuing study of and debate about Houston's flooding problems; that's normal, natural, and essential, and it's a continuation of what we've been doing before, but now with additional data that must be accommodated and given due weight.

I'm not in favor of some sort of sweeping, top-down, and especially federally-imposed mandates that would preempt those normal economic and political processes. But I worry — because we live in an era in which many politicians and special interest groups insist that no big crisis should be allowed to go to waste (i.e., no opportunity to demagogue using people's misery should be missed) — that such mandates are exactly what some folks would like to see imposed. Some of those folks will be motivated by a belief that their decisions would be best for everyone, and others will be motivated more cynically, by the recognition of emotional vulnerabilities that can be tapped to raise money for favored causes and to elect favored candidates that have little or nothing to do with flood control or mitigation.

I'd likewise argue for the rights of those Americans who choose to live near volcanoes to make those choices for themselves, even though that's not a choice that I find either appealing or even tolerable for myself. But the ability to make free choices is essential if we expect people to take personal responsibility, and to make better decisions because they've undertaken that responsibility.

We're a better society, a freer society, if we do expect people to drive home with their eyes open.

Posted by Beldar at 02:40 PM in Current Affairs, Texas | Permalink | Comments (17)

Friday, September 01, 2017

Flood risks and flood control aren't new topics of debate in Houston

Today's Wall Street Journal contains this article about a neighborhood very close to me, Meyerland, where my ex and two of my adult kids live: "Flooded Again, a Houston Neighborhood Faces a Wrenching Choice." The subhead reads: "After three floods in three years, Meyerland, a thriving community of 2,300 homes, weighs deep ties against risks of rebuilding." Many of the images of spectacular flooding last Saturday night and Sunday, before and just after Harvey first made landfall, were shot in Meyerland. A friend of mine on Facebook noted that the TV newscasters were jokingly referring to the freeway exit from Loop 610W onto Beechnut (which runs through Meyerland) as "The Beechnut Boat Ramp," because that was indeed where many rescue boats were being launched and recovered.

To its credit, this article avoids the flaw of most I'm reading in the national media now, and of even more woefully uninformed commenters from the public on social media and blogs — the assumption (or presumption, really) that everyone in Houston has somehow been caught off guard by the very notion of flooding during hurricanes and heavy storms.

It's annoying to me and many of my fellow Houstonians when outsiders don't credit us with having recognized our recurring flooding and drainage problems, as if Houston has just been blithely ignorant of them. In fact, people have been debating, and then acting upon, flood control/flooding issues in the public sphere pretty much continuously since the Allen Brothers founded the city on the banks of Buffalo Bayou in 1836. It's always been subject to flooding, with varying consequences.

And we certainly were aware of that little incident in nearby Galveston in 1900 — the one which still stands as the greatest natural disaster in American history, with 6k+ killed. That turned Galveston from a mighty port and leading Texas city into the much more modest tourist-focused place it is today, and it turned Houston's slightly inland location into an important comparative feature that worked to our frank advantage at Galveston's expense. We billed ourselves as "The City Where Seven Railroads Meet the Sea" — a major port that's nevertheless only connected to that sea by the Ship Channel, built out along Buffalo Bayou downstream from downtown. (That's why there's a railroad locomotive on the Official Seal of the City of Houston, by the way, and not a steamship.)

Flood risk, flood control, and the complications of both from further building and development, are all legitimate issues of public debate on which reasonable people can have, do have, and have always had legitimate grounds for disagreement. Obviously we have a bunch of new data to incorporate in those ongoing discussions and debates, political and otherwise; obviously this event is going to affect things like real estate prices and construction costs going forward.

But as Mayor Turner is correctly quoted as saying in this article:

"You cannot significantly mitigate flooding and drainage on the cheap," the mayor said. "And a lot of people don’t want to pay, but you’re going to pay sooner or later."

Who pays, how much, and for what: All of these are important questions — but they're not new questions, and while you may not like the results of the past debates, you can't deny that they've taken place.

These aren't simple questions either, nor are the answers unambiguous or clear. And the "right" answer for some places and some people isn't necessarily the "right" answer for other places and people situated cheek-by-jowl — although our situations are also certainly interdependent to a considerable degree.

Right now, the neighborhoods being flooded in west Harris County and Fort Bend County include new, affluent, and well-planned subdivisions that were built with full knowledge of the flooding and drainage problems of the area, and likewise in full knowledge of the continuing likelihood of further development that would affect all their assumptions. During the storm itself, despite record rainfalls, those neighborhoods fared quite well. The choices made by their developers were sound. What's now happening to them isn't the result of bad planning by the people who designed and built them so much as a black swan event — a flood so severe and widespread that as it drained toward the coast, the Barker and Addicks Reservoirs would be threatened with massive (Katrina-scale) failure, but for the "controlled releases" which have now been reluctantly decreed even though they are flooding those neighborhoods.

If Harvey had happened in a lot of other places that are less flood-prone (and flood-experienced) than we are, but that pride themselves on their civic order and zoning and whatnot, those places would assuredly have flooded too, and probably worse than we have, because (as this article reflects) we've been actively working to become less vulnerable because we are indeed so focused on these risks. My ex's house in Meyerland survived Harvey without flooding, just barely; but without the serious drainage improvements that had just been completed there within the last two years (some of them within the last six months), this storm would definitely have flooded her house. 

Posted by Beldar at 05:54 PM in Current Affairs, Texas | Permalink | Comments (12)

Wednesday, August 30, 2017

Harvey has created untold heroes from ordinary people responding magnificently

Americans and people the world over are watching heart-grabbing, jaw-dropping, eye-watering videos and stories from Harvey via a combination of the national TV news networks and the major news websites, plus their own social media platforms, with their customized profiles based on their particular histories, preferences, settings, etc., influenced directly and indirectly by their respective locations and sets of friends.

Houstonians like me who've not been much directly affected by Harvey are watching those same national media, of course. Many of us are supplementing the national networks, or deserting them, for local TV news stations, whose coverage and performance is in every respect superior to their national counterparts. Local reporting is more in depth, of course, and more knowledgeable, of course, and better connected to history, of course. But it's also showing significantly better perspective and judgment, with less hysteria, less ratings-pandering, less sensationalism, and vastly more critically useful factual information.

Moreover, and less obviously: My Facebook feed, customized to my set of friends and contacts, is giving me a constant, steady set of more granular news in parallel to what I'm seeing on TV (local or national) or other general internet sources.

So to my friends in, say, California: I'm seeing the heroic stories you're seeing. But I'm also seeing dozens of individual people I know — neighbors, relatives, law colleagues and judges, old friends from college, people I've "met" only online — engaged in quiet, effective, and almost completely unreported heroism. There's no reason why FB would be or could be curating this sort of thing effectively for the vast set of people who aren't living in Houston or on the Gulf Coast or otherwise involved in the rescue & recovery efforts.

But these smaller, less flashy rescues, these bunking arrangements, these boat loans and sandwich deliveries and "I heard from your cousin, she's alive!" messages that I'm seeing pass among my fellow Houstonians through the particular lens of my set of FB friends — these things, individually and especially cumulatively, are awe-inspiring. These decent acts, these attempts to be useful and helpful, are more striking to me precisely because unlike the heroes I'm seeing on TV, these particular acts of heroism are being performed by people I already know. And I think it's a very reasonable inference that millions of other Houstonians in my approximate position are likewise seeing a different set of people who they know, who are being similarly heroic during Harvey — but of whom you and I are utterly unaware, and always will be.

My eyes are red. I've been choked up in admiration so many times in the last 72 hours — most often about small bits of sanity and kindness and extraordinary calm and love that no one, or no more than a handful of other people, will ever see, or know about, or remember. 

I can't cut and paste those stories or copy those photos here, of course. I'm sure it would be against FB's fine print, and a complete breach of trust with anyone who's shared those communications with me on the assumption that they'd not be redistributed beyond his or her FB friends. So you're just going to have to take my word for it, I guess, or the word of others here in Houston while this is going on:

There are thousands, indeed tens of thousands, of bona fide and unsung heroes for each one we're seeing on TV. The ones on TV are genuinely representative, and I'm glad their deeds are being sung. They are inspirational without contrivance.

But to borrow a phrase from Twain: you can't swing a dead cat without hitting one of the unsung heroes in Houston right now — whether it's someone in any of the relief areas, someone coordinating resources and people on the internet, or someone showing up to work today to restock a grocery store shelf or clean up some debris piles. 

Inevitably in time, more controversy will ensue, and some of it will be incited. Too many take seriously that stuff about not letting a good crisis go to waste, and this is a doozy. That may, and probably will, inevitably tarnish, at least in the perception of some people, the pride and goodwill that's so abundant in Houston today, as we fight back against this chaos.

But controversy won't eliminate those memories, nor unwrite this history of ordinary people responding magnificently, heroically in ways big and small, under extraordinary circumstances.

------

UPDATE (Weds. Aug. 30 @ 11:40 pm): I don't actually have permission to re-post this photo, but since it's of my niece Liana Dyer James' husband David, I'm going to post it here anyway, since he was one of the many, many people I had in mind when I wrote the original post.

David (white shirt & reversed ball cap) looks like a Navy SEAL, but he's actually a broker and financial advisor in his day job, a devoted husband & family man, and a leader in his hometown community and his church. He and a friend hitched up their boat and drove down from Palestine to help in the rescue efforts. No one told them to, or asked them to. They aren't being paid or reimbursed. They don't have FEMA name tags or a Coast Guard helicopter. But they just couldn't not do it — like so many of the others who're volunteering in these relief efforts.

In this photo, they're using their boat to transport a flooded-out family to safety, but part of that process requires negotiating some shallow standing water by foot — a scene repeated hundreds of times in dozens of places all over the Houston area today. And they're not just grimly toiling, but rather, they're deliberately doing their very best to lighten the mood, to find some humor, and to celebrate these kiddos' "first-ever boat rides! Whee!" so that perhaps these kids can someday remember the Hurricane Harvey rescue they needed as something that was noble and redeeming, instead of something unrelievedly sad and tragic. 

I could strip my FB feed for probably twenty other photos like this of Texans I personally know and love, ordinary people, who're doing exactly this kind of thing, but whom you won't see on TV. But this one magnificent photo will suffice to make my point, I think.

Posted by Beldar at 08:49 AM in Current Affairs, Texas | Permalink | Comments (25)

Tuesday, August 29, 2017

Tap, tap, tap — is this thing still on? Hurricane Harvey has Beldar blogging at least briefly

I don't know whether I'll ever return to regular blogging. Since its inception in 2003, and despite several long periods of inactivity, I've kept this blog online to preserve its content, for it is indeed a personal online journal for the times that I have been regularly blogging. And I continue to refer back to it myself, to remind myself of details regarding the various events and topics I've written about here. Sometimes I leave links to those past posts in comments I leave on other media, along the lines of, "As I argued in 2009, yada yada ...."

Hurricane Harvey has been an impetus for me to leave lots of comments elsewhere — some on one of my old favorites and continuing daily reads, Patterico's Pontifications, and many others on Facebook. (I have a personal policy against arguing about politics on Facebook, however: My FB friends include a lot of people who don't share my politics, and I'd rather not argue "in public" with them in front of other FB friends, just as a matter of personal preference and boundaries.) This seems like a good place, and for some purposes a better place, to collect my current and recent written thoughts about this epochal event I'm still living through.

So I'm going to republish here, in the next few minutes, a series of nine lightly edited comments or posts I've left elsewhere — for now, limited to my personal observations and experiences with Hurricane Harvey. (I've backdated the publication dates here to match the dates and times on which I posted on the original media.) Click here if you want to start with the earliest of the posts in their original chronological order.

Any such series must start with my grateful acknowledgement and disclosure, the very happiest of spoiler alerts:

So far, I'm safe and dry, having suffered no worse than worry and mild cabin fever during Hurricane Harvey; likewise my ex and our adult kids. We are incredibly fortunate. But like almost every Houstonian, we also have dear friends who've been flooded out of their homes, and who're looking at extremely grim prospects for the short and middle term as they try to replace their losses, to the extent that's even possible, and to re-build their lives.

For anyone who finds his or her way here — or in the case of a few extremely kind folks who've been at least occasional readers when I blogged regularly, his or her way back here — I hope you'll find this at least mildly interesting and less than a complete waste of your time and bandwidth.

I'm going to re-open comments at least briefly on these posts, but my tolerance for suffering fools and abusers is likely to be pretty limited, so please behave appropriately if you choose to comment. And notwithstanding the last post that preceded this new series — a satirical post written in October 2015, when I thought Donald Trump had little to no chance of winning the GOP nomination, much less the White House — I'm not yet inviting discussion on that post, Trump, the 2016 elections, or other matters political. Perhaps that will change with future posts, if any; we'll see.

Posted by Beldar at 10:28 PM in Current Affairs, Texas | Permalink | Comments (15)

Context to appreciate the miraculously low death toll (so far) from Hurricane Harvey

[From a post I left on Facebook at 3:01 p.m. on Tuesday, August 29, 2017:]

The Galveston Hurricane of 1900 is, by far, the worst natural disaster in American history as measured by numbers killed. Even at the low end of the estimations, at least 6000 died, and it might have been twice that. The 1906 San Francisco fire & earthquake and 9/11 are the next-runners-up, at around 3000 deaths. But so far, the death toll from Harvey seems to be in single or very low double digits.

The property damage being created by Harvey is simply mind-boggling, and with it the emotional toll — which ranges from the mild exhaustion felt by those of us (like me) who've been comparatively unaffected otherwise, to those of us (like some people I know) who've lost everything they own, including all their most precious keepsakes, and who are now having to contemplate rebuilding their entire lives.

And each of the deaths we have had — most recently, to the collective shock and horror of our city, 60-year-old Sgt. Steve Perez of the HPD, drowned while trying to report back to work — are tragic, not to be minimized or forgotten in looking at the big-picture statistics. For the Perez family, the low overall casualty figures are very poor consolation, except insofar as they reflect the combined bravery of Sgt. Perez and everyone else like him who are involved in the rescue & recovery efforts during this crisis.

But compared to most other recent large-scale natural disasters — Hurricane Katrina in 2005 jumps out immediately in our memories, with 1833 fatalities attributed to it — it is nevertheless ASTONISHING that the Harvey casualty tolls are so small, especially given the vastly greater population involved and at risk.

We aren't past this by any means. The death toll will rise, for much risk remains and some rivers and bayous are still rising, and there may already have been some deaths that haven't yet been discovered. But there is already SO MUCH that we have to be grateful for and appreciative of! Take heart from that, and let it buoy your spirits (pun definitely intended) as you continue to view the heartbreaking images from this event.

Posted by Beldar at 03:01 PM in Current Affairs, Texas | Permalink | Comments (0)

Highly localized yet widely distributed pockets of disaster in Houston

[From a post I left on Facebook at 2:04 a.m. on Tuesday, August 29, 2017:]

Network and local TV tonight are showing lots of video from the George R. Brown Convention Center on the east side of downtown, where something close to 10,000 Houstonians are temporarily sheltering, roughly five times as many as there were last night. Kudos to the City personnel who're handling that.

But consider: The George R. Brown Convention Center is an easy five-minute drive or 15-minute walk, less than a mile, from Buffalo Bayou, which has left its banks to utterly flood parts of downtown Houston, including the area on the northeast side of downtown that contains most Harris County buildings (including the Civil Courts Building).

That vividly illustrates just how incredibly LOCALIZED yet DISTRIBUTED this disaster is. Some of the greatest disaster scenes are only a few hundred yards away from some of the beacons of shelter and safety. That's just the nature of this flood. The good news is that evacuees don't have to flee half-way across Texas to be safe, or even half-way across Houston (for there are other shelters more convenient than the Brown for many other evacuees).

Posted by Beldar at 02:04 AM in Current Affairs, Texas | Permalink | Comments (0)

Monday, August 28, 2017

More non-catastrophic pix from Houston during Hurricane Harvey

[From a post I left on Facebook at 8:08 p.m. on Monday, August 28, 2017:]

Cyber & I took a quick walk just now to snap some photos of non-catastrophe — and one (but only one) of us took the opportunity to go swimming, on purpose!

There are indeed tens of thousands of Harvey victims in and around Houston who are flooded, or have been flooded, or who may still be flooded — and that might still include me later tonight or tomorrow. Everyone's appropriately fixated on these victims' tragedy, and we're all eager for this to be over so we can begin putting things right again. But:

There are also hundreds of thousands of folks who are doing okay — better than we were during, say, Hurricane Ike — even while this surreal and record-setting catastrophe is playing out, at least for this moment. Lots of us haven't been flooded, and we still have power. We're still hunkered down, we're trying to help our less fortunate neighbors, but we're not all 30 seconds away from needing a helicopter rescue, which you might mistakenly conclude from watching the national news.

Our short walk reassured me about my immediate neighbors' well-being, but it also demonstrated the continuing wisdom of staying put, out of your vehicles and off the roads! While my own street in Sharpstown is in good shape, I wouldn't be able to drive three blocks without hitting dangerously flooded intersections, any one of which might get worse even after I'd already decided to turn back.

SO HUNKER LIKE YOU MEAN IT, friends and neighbors! Help your neighbors according to your capacities and their needs, but for most of us, the best thing we can do is stay home, out of the way of the well-equipped helpers (with boats and monster trucks and the like), where we won't end up adding to the total of people needing rescues.

UPDATE at 3:30pm on Tuesday: Cyber & I took another walk about two hours ago, and the intersections that were lightly flooded in these photos are all clear now, blacktop exposed (albeit still wet from continuing sprinkling).

I then drove a few blocks, to the intersection of SW Freeway & Fondren, where I indulged in the guilty pleasure of a fast food run at Burger King. I'd chatted a while with the manager last Friday, as she was still juggling staff and making preparations to close early so her folks could get home safely. Today she gave me a huge grin and thanked me for coming to see them now that they'd re-opened; she plans to send her employees home before dark, but right now they're making burgers as fast as they can. (I don't normally tip at fast food restaurants, but today I asked her to share my $20 tip on a $10 order among her staff.)

The Shell station next door was doing normal business, right down to the half-dozen folks sitting on stools playing those supposedly-not-gambling slot machines. The ice cooler was nearly full of 8# bags of ice.

The whole scenario was shocking in its normality, although it's a normality colored by the knowledge that we wouldn't have had to go very far to find a shockingly different scene of flooding and devastation.

Posted by Beldar at 08:08 PM in Current Affairs, Texas | Permalink | Comments (0)

Beldar spots what he hopes is the end of the beginning of the Hurricane Harvey disaster

[Reprinted, as edited & expanded, from a comment I left on Patterico's Pontifications at 11:57 a.m. on Monday, August 28, 2017:]

It’s official: Day 4 of Harvey, and with very rare exceptions, the people of Houston and the Texas Gulf Coast are responding magnificently to this catastrophic event. The death and injury rates are amazingly small overall. So far today, during relatively lighter rains, thousands of stranded people and people who’ve been flooded are being relocated. The civic mechanisms and preparedness are working reasonably well even though these are uniquely difficult challenges, but as always, the citizenry — helping themselves, helping each other — are picking up all of the considerable slack.

In terms of storm damage, this is going to end up being a much less severe hurricane than several I’ve seen in Houston since moving here in 1980 — much less than Alicia or Ike, for instance. Instead, most of the consequences in Houston and its immediate environs are from flash flooding. Saturday and Sunday the flash floods were from heavy rains that didn’t have time to run off. Hereafter it’s going to be flash floods mostly from upstream drainage, and our rivers and bayous, which were already out of their banks, are going to continue to rise and remain dangerous for several more days at a minimum. It thus more resembles past storms like Claudette (which I experienced from Galveston Island in 1979) and Allison (which set the previous rainfall records, but will be eclipsed by Harvey).

The very substantial silver lining, though, as compared to Ike or Alicia, is that we still have many facilities and many neighborhoods that still have power and that are (at the moment) safe to use. People who have to evacuate — including from some very affluent and newly constructed suburban areas that are now about to be deliberately flooded as the Corps of Engineers makes controlled releases from the Barker and Addicks Reservoirs (along the tops of which I’ve cycled dozens of times, it’s a mix of parkland and upscale new subdivisions) — don’t necessarily have to navigate hundreds of miles of dangerous and obstructed roads to somewhere like Austin or Dallas. Instead, most of them can find temporary housing here in the parts of Houston that aren’t affected, among friends or if not, in the short term, in government and charitable organization shelters.

Last night we started getting some much more favorable forecasts in terms of the intensity of the rainfall expected today and for the rest of the week. I’m seeing confirmation of those predictions in the skies today. There are good prospects that the intensity, if not necessarily the duration, of the rainfall may lessen.

I’m still dry and haven’t lost power, water, or internet for more than a few seconds so far. My ex and two of my adult children are sheltering at her house in Meyerland. Earlier tonight, I was watching national newscasts showing boat rescues from the Knob Hill Apartments, which are perhaps 300 yards from my ex’s house — but which same 300 yards put those apartments too close to Braes Bayou as it escaped its banks. But thankfully, the flooding on her street has now drained off sufficiently to see the blacktop again, after coming all the way up to (but not quite over) her front porch in the wee small hours of Saturday night/Sunday morning. My other two adult kids are also hunkered down safely at their respective apartments, well prepared and provisioned. As for our closest friends, though: while many of them are in the same good circumstances we are, almost everyone in Houston knows someone who’s been flooded out or who’s facing mandatory or highly-advisable evacuations from their particular neighborhoods.

But although many of us have been spared injury and major property damage so far, this event is turning the lives of everyone in the Houston area upside down in important ways. The bayou on which the Allen Brothers founded Houston in 1836 and that runs through downtown — Buffalo Bayou, which continues from downtown to the Ship Channel and Galveston Bay — is preposterously out of its banks. To appear in court today, I would literally have needed scuba gear. But of course there was no court today, and won’t be this week.

I am nevertheless cautiously optimistic that we’ve seen the worst of this one. To borrow from Churchill, this isn’t the end, or the beginning of the end. But I think we’ve now seen the end of the beginning. 

Posted by Beldar at 11:57 AM in Current Affairs, Texas | Permalink | Comments (0)