Monthly Archives: January 2020

Impeachment Legalese for Non-Lawyers

By tmess2 | Published January 30, 2020

Over the next several days, the Senate will (potentially) be voting on whether to subpoena individuals to testify in the impeachment trial of President Donald J. Trump.  With the caution that an impeachment trial is not quite like a regular trial that you would see if you headed to your local courthouse, the following are some terms that you may hear from Senators and talking heads during this discussion.

Subpoena — Stripped of its fancy title, a subpoena is an order to a person to appear in court to testify or to turn over documents to the parties.   In most courts, subpoenas issue upon request by a party almost automatically.  If there is a reason why that subpoena is improper, the witness can ask to “quash” (effectively cancel) the subpoena or one of the other parties can ask to exclude the witness.  For an impeachment trial, because the Senate is both judge and jury, the Senate needs to approve the subpoena.

Deposition — A deposition is out-of-court testimony.   The attorneys for the witness get to ask questions just like it was in court and a court reporter takes down the questions and answers.  The court reporter then prepares a transcript (a printed booklet containing all of the questions and answers, word for word).  Often depositions are used either to discover what a witness might say or because the witness is not available for trial.  (Typically, depositions are used for medical witnesses who can make time available after work for a deposition but would be unable to wait in court for their turn to testify without putting patients at risk.)  A deposition also allows parties to decide what part of a witness’s testimony they actually want to use. Continue Reading...

Posted in Uncategorized | Tagged , , , , , , | Comments Off on Impeachment Legalese for Non-Lawyers

Delegate Math 2020 — Iowa

By tmess2 | Published January 29, 2020

We’re back with that quadrennial feature — delegate math.  As we were reminded by the 2016 election, the United States uses an indirect system for electing president.  Under this system, it’s not the total popular vote that counts.  It’s how that popular vote translates into electoral votes.  Likewise, for the nomination, the task is to turn popular votes into delegates.  Back in 2008, the difference between Secretary Clinton and President Obama was the Obama’s campaign success at figuring out where they could gain an extra delegate here and there.

In a short period of time, voting will start with the Iowa caucuses.  While the number of caucuses have dwindled to almost nothing (Iowa, Nevada, and Wyoming being the only real caucus states left), a caucus is different from a normal primary.  In a caucus, rather than showing up, casting a ballot, and then leaving, voters actually have to take part in a meeting in which voting takes place in the middle of the meeting.  The other key feature of a caucus is that voting is public, not secret.  The participants literally go to different parts of the meeting facility depending upon which candidate they are supporting.  Your friends and neighbors get to see who is heading to the Biden corner/room and who is heading to the Gabbard corner/room.    In addition, for the purpose of any later “recount,” participants sign a pledge of support form for their candidate.

For all the states and territories, the first key number is 15%.  Whether in the precinct caucus itself or at the congressional district level or at the state level, a candidate needs to get 15% of the vote to win delegates.  (Some smaller precincts have higher thresholds because they are only selecting two or three delegates, but 15% is still a good general rule of thumb in looking at polling numbers.)  What makes a caucus different than most primaries is that there will be a chance after the initial division of the precinct into the separate candidate areas for voters to realign. Continue Reading...

Posted in Delegates, Iowa Caucuses | Tagged , , , , | Comments Off on Delegate Math 2020 — Iowa

Notes From Your Doctor: 2019-nCoV Update

By DocJess | Published January 29, 2020

As of 29 January, the number of infections in mainland China has now surpassed the total number of SARS infections, albeit with a death rate two-thirds lower. There are signs that this will soon be a pandemic, as the R0 number appears to be increasing.

The most disturbing thing I’ve seen comes from a study in The Lancet indicating some issues with the initial information from the Chinese government. Whereas China had said that all the initial infections were tied to the Wet Market in Wuhan, the Lancet article indicates that only 66% had visited the market, and that the onset of symptoms in the first patient was earlier than reported. With a two-week incubation, this sets onset back to November.

As an aside, I had never heard the term “wet market” until a few days ago. It turns out that it refers to any market that sells animals, dead animals or produce, as opposed to a “dry market” which sells only durable goods like clothing and electronics. Learning is life-long. Continue Reading...

Posted in Healthcare, Notes from Your Doctor, Public Health | Tagged , , | Comments Off on Notes From Your Doctor: 2019-nCoV Update

Impeachment History 101 (Part 4)

By tmess2 | Published January 27, 2020

Now we get to the icky, wash your hands after reading, impeachment.  While President Clinton was, for the most part, a very good president, his personal life has always been questionable.  When he came into office, we were just at the start of what has become a strong right wing propaganda-litigation machine.

When Clinton came into office, there were two scandals — one related to alleged sexual harassment and one related to a business development that failed (Whitewater).  The investigation into Whitewater resulted in the appointment of an independent counsel under the post-Watergate independent counsel law in which the independent counsel answered to the courts (the way that a lot of special prosecutors do in state court) rather than the Attorney General.  Ultimately, the investigation into Whitewater did not find any evidence warranting any action against President Clinton.  The independent counsel claimed that President Clinton committed perjury during that investigation and referred that issue for possible impeachment to the House, but that referral went nowhere.

Meanwhile, the United Supreme Court allowed the sexual harassment case to proceed (at least with the pre-trial discovery phase).  During that discovery, President Clinton was deposed (i.e. sworn testimony taken by the attorneys in the case out-of-court).  During that deposition process, questions were asked about his sexual activities with other women including an intern working in the White House.  The independent counsel (who had already gotten his investigation expanded to include other controversies that arose during Clinton’s first five years in office) received the authority from the court to investigate whether Clinton and his attorneys were planning to suborn perjury in the civil case.   (It is unclear whether the potential false statements would have been perjury because it is unclear if those statements were relevant or material to the issue of whether President Clinton had sexually harassed the plaintiff in the case.)  Kenneth Starr (the independent counsel) asked President Clinton to give grand jury testimony.  Unlike the current president, President Clinton agreed (rather than fighting the subpoena) and gave testimony about his relationship with the intern that was misleading at best. Continue Reading...

Posted in Impeachment | Tagged , | Comments Off on Impeachment History 101 (Part 4)

Impeachment History 101 (Part 3)

By tmess2 | Published January 25, 2020

Today’s flash back is on the impeachment that never was — Richard Nixon and Watergate.  While President Nixon held on until the writing on the wall was crystal clear, he ultimately did the honorable thing and resigned.  While that was a good thing for the country, it was a bad thing in the sense that it deprived us of an example of how an impeachment that had actual merit should work.

Watergate was a complex scandal in which the original issues morphed during the process.  And there were other issues about how Nixon had governed during his first term.  But at the heart of Watergate were the operations of the Committee to Re-Elect the President (which eventually got the appropriate nickname of CREEP).  Among the numerous ethically questionable attempts at disinformation and disruption related to the potential Democratic candidates, operatives of CREEP burglarized the offices of the Democratic National Committee (then located in the Watergate Office Building) in an effort to obtain documents and wiretap the office.  The operatives were a little sloppy and some of them were caught.  That led to the President (and his staff) engaging in an effort to cover-up the campaign’s connection to the burglary.  The cover-up initially worked, and Nixon easily won the 1972 election.

After the 1972 election, the House and the Senate began to hold hearings into the matter.  By April, a special prosecutor had been appointed.  The hearings led to the revelation that Nixon had a taping system for the Oval Office.  When the special prosecutor attempted to subpoena the tapes, Nixon fired the special prosecutor.  (Because the special prosecutor answered to the Attorney General, Nixon actually ordered the Attorney General to fire the special prosecutor.  Both the Attorney General and the Deputy Attorney General resigned instead of complying with the order.  That left the Solicitor General (Robert Bork) as the acting Attorney General, and he complied with Nixon’s order.)  In the aftermath of this blatant interference in the investigation, the Judiciary Committee opened a staff inquiry into possible impeachment in October 1973.  In February 1974, the House formally authorized an impeachment inquiry. Continue Reading...

Posted in Impeachment | Tagged , | Comments Off on Impeachment History 101 (Part 3)

Notes from your Doctor: The Wuhan Coronavirus

By DocJess | Published January 24, 2020

W.H.O. is determining whether to designate the outbreak of 2019-nCoV as an international public health emergency. Sadly, W.H.O. has put this determination off for at least 10 days, the same sort of cowardly “watch and see” that allowed other diseases to fester and spread. W.H.O. never seems to learn. We know that there is airborne human to human transmission, and that there is a true risk of a pandemic, so let’s look at what you can do to protect yourself, as there’s no doubt that the first American patient won’t be the last.

On the upside, this coronavirus is less virulent than SARS or MERS, meaning that there is a lower probability of death. However, it is still mutating, so we don’t know how it will end up.

As I wrote back when SARS, MERS, Zika, Swine Flu, Bird Flu and other viruses started spreading: fingers, nails, fingers, fingers, fingers. Which means wash your hands. And not just your palms – but your fingers, your nails and then your fingers over and over. You should wash your hands for a minimum of 20 seconds. You should do this every chance you get, it will decrease your probability of all sorts of illnesses. In fact, per an internal paper from the CDC, if every American washed his/her hands properly a minimum of 10 times a day, the incidence of non-venereal communicable disease would decrease by 90% over 30 days nationwide. Believe it or not, washing your hands is even more important than wearing one of those paper masks. Continue Reading...

Posted in Public Health | Tagged , | Comments Off on Notes from your Doctor: The Wuhan Coronavirus

Equality and the Constitution

By tmess2 | Published January 20, 2020

Recently, Virginia became the 38th state to ratify the Equal Rights Amendment.  This vote by the Virginia legislature raises several issues that have only rarely been faced in terms of the text of the Constitution, and there is very little in terms of precedent.  In fact, the closest example might be the ratification of the Fourteenth Amendment.

There are, of course, some unique features of the Equal Rights Amendment.  Up until 1900, proposed constitutional amendments did not have time limits on ratification.  However,  starting with the Eighteenth Amendment (prohibition) in 1917, four of the nine amendments ratified had time limits.  In addition, two of the three other amendments submitted to the states also had time limits.  In other words, since 1916, half of the proposed constitutional amendments had time limits.  However, until the Equal Rights Amendment was ratified by it’s thirty-eighth state, there has never been a constitutional amendment ratified after the expiration of the time limit for ratification.

It is unclear if Congress has the authority to put a time limit on ratification.  Article V provides  that Congress may propose constitutional amendments (by a two-thirds vote of both houses).  It also gives Congress the power to refer the amendment to state conventions rather than to the state legislatures.  However, it is silent about whether Congress may place a time limit on ratification.  There are, of course, good reasons for having a time limit.  The only remaining pending amendment from the package of amendments that became the Bill of Rights would require one representative for every 50,000 persons in a state.  If adopted, it would instantly expand the House to over 6,000 members.  So there are policy arguments for recognizing the power of Congress to place a time limit on consideration.  On the other hand, a strictly textual argument and the practice of the original congresses would dictate that Congress does not have the policy to impose a time limit. Continue Reading...

Posted in Civil Rights | Tagged , , | Comments Off on Equality and the Constitution

Supreme Court and the Electoral College

By tmess2 | Published January 17, 2020

It’s been almost twenty years since the last time that the Supreme Court has taken a case involving the electoral college. In fact, you can on one or two hands the number of times that the U.S. Supreme Court has taken a case in which the sole issue was the process of electing the President.  (I can count three in the past forty years — one involving the right of the national parties to set the rules for nominating their presidential candidate and the two from 2000 involving the recount in Florida.)

This afternoon, the United States Supreme Court took two cases — Chiafolo vs. Washington from the Washington Supreme Court and Colorado Department of State vs. Baca from the United States Court of Appeals for the Tenth Circuit.  Both cases involve the state laws governing so-called “faithless electors.”

Now faithless electors are not usually a significant problem.  While the laws differ from state-to-state,  the general concept is that in every state, there is a slate of candidates for electors associated with each ticket.  In the majority of states, the ballot only lists the individuals running for President and Vice-President, but the actual candidates being elected if that ticket wins that state (or in the case of Nebraska and Maine, the individual congressional districts) are the candidates for elector.  Each state has a process by which the respective parties nominate the slate of electors — typically either a state party convention or a state party committee.  (Obviously, for new parties and independent candidates, the elector candidates are chosen by the people handling the petition to get that party/candidate on the ballot.)   The process of filling the slate normally guarantees that the electors are loyal to the state party. Continue Reading...

Posted in Electoral College, Judicial | Tagged , | Comments Off on Supreme Court and the Electoral College

Spending is Speech — A look back at Buckley vs. Valeo

By tmess2 | Published January 12, 2020

Most non-lawyers only vaguely, at best, know about the U.S. Supreme Court’s decision in Buckley vs. Valeo.  However, Buckley was the 1970s equivalent of Citizens United.  And it is a major factor in the modern campaign finance system and the candidates that are running for President.

In the early 1970s, Congress passed two laws related to campaign finance — the Federal Election Campaign Act of 1971 and a set of amendments in 1974.  Some of the provisions of these two statutes are familiar to people who follow politics because the Supreme Court upheld them.  These laws established the limits on contributions to campaigns — both by individuals and by political action committees and required campaigns to report donations.  The law also established the system of public funding of presidential campaigns which is still nominally on the books.  (Simply put, the law on public financing and the resources for public financing have not kept up with the ability of candidates to raise funds through various means including the internet.  Candidates can easily raise a level of funding that vastly exceeds the expenditure limits that are associated with accepting public finance.  And once one candidate opts to forego public financing, the rest of the candidates have to exceed those limits too.)

What most people do not remember is that these laws placed limits on expenditure in federal elections and restricted the ability of candidates to self-fund.  While the Supreme Court did not directly state that spending is speech, it did note that spending by a political campaigns is connected to its ability to speak and communicate the candidate’s message.  As a result, the Supreme Court found that mandatory limits on campaign expenditures (as opposed to the voluntary limits that went with accepting public funding) and any limits on independent expenditures were unconstitutional.  While this part of the ruling ultimately led to PACs and Super-PACs having the ability to run their own ads supporting and attacking candidates, that power mostly impacts things at the end of the process. Continue Reading...

Posted in Elections, Money in Politics | Tagged , , , | Comments Off on Spending is Speech — A look back at Buckley vs. Valeo

Debates and the Nomination Process

By tmess2 | Published January 7, 2020

We are nearing the end of the “pre-season” of the nomination process.  Next week will be the last official debate before the Iowa Caucuses (which are less than four weeks away).    While there are some additional post-Iowa debates scheduled, what happens to them is still somewhat up in the air.

In any case, the results on the ground will soon make the debate about debates slip into the background.  And, if the voters are sensible in November, the Democratic Party will not have to consider debate rules for another eight years (although the last clowns in the clown car that is the Trump Republican Party will have to decide the rules for the 2024 debate regardless of the results of this year’s election).

One thing that both parties should have learned from the last two cycles is that the size of the field matters.  If you only have six or seven “recognized” candidates, there is no need to pick and choose between them.  Whomever is running can be in the debate.  The problem is when you have more candidates running.  Even with a three-hour debate, seven candidates equals about twenty-five minutes of speaking time per candidate (less time for the moderators to ask questions).  More candidates reduce that minimal time even more.  And at a certain point, there are simply too many candidates and you need to have two (or more) separate debates for each round of debates. Continue Reading...

Posted in Debates | Tagged , | Comments Off on Debates and the Nomination Process