On Conspiracy

In comments, Harpie went back to Elizabeth de la Vega’s summary of conspiracy.

Since Eureka brought this up above, I figured it might be timely to post it again:

Conspiracy Law – Eight Things You Need to Know.
One: Co-conspirators don’t have to explicitly agree to conspire & there doesn’t need to be a written agreement; in fact, they almost never explicitly agree to conspire & it would be nuts to have a written agreement!
Two: Conspiracies can have more than one object- i.e. conspiracy to defraud U.S. and to obstruct justice. The object is the goal. Members could have completely different reasons (motives) for wanting to achieve that goal.
Three: All co-conspirators have to agree on at least one object of the conspiracy.
Four: Co-conspirators can use multiple means to carry out the conspiracy, i.e., releasing stolen emails, collaborating on fraudulent social media ops, laundering campaign contributions.
Five: Co-conspirators don’t have to know precisely what the others are doing, and, in large conspiracies, they rarely do.
Six: Once someone is found to have knowingly joined a conspiracy, he/she is responsible for all acts of other co-conspirators.
Seven: Statements of any co-conspirator made to further the conspiracy may be introduced into evidence against any other co-conspirator.
Eight: Overt Acts taken in furtherance of a conspiracy need not be illegal. A POTUS’ public statement that “Russia is a hoax,” e.g., might not be illegal (or even make any sense), but it could be an overt act in furtherance of a conspiracy to obstruct justice.

de la Vega has been consistently good on conspiracy going back to the first failed impeachment effort and the lead up to it. I posted this at least once before, think on a post I penned, but not sure, so am going to put this out here again.

At any rate, here are a set of model jury instructions (that I have previously patterned off of for real trials) for a conspiracy case. They are for a drug case, but conspiracy is conspiracy, and the law is pretty much the same, and has long been. What Harpie cited from de la Vega is correct. But to give you a look at how it actually goes down in a court, check out actual pattern jury instructions, because real instructions are always the guide in a real criminal trial. Substitute in the elements for 18 USC §373 and 18 USC §2101, or any of the other various putative crimes being discussed ad nauseam and you will get the picture.

As you read through them, keep in mind the question of “what holes could a competent criminal defense attorney drive a truck through here given a beyond a reasonable doubt burden?”

Now would Trump acquire an actually competent criminal defense attorney were, in the unlikely event he is really charged? Now there is a great question! But, if he were to, there are currently still a LOT of holes. People are getting ahead of themselves. Read the instructions, they scan pretty fast. But keep in mind that once you charge and put a defendant, any defendant, on trial, things are not as easy as they are here or on social media.

Amanda Gorman Made Silvester Beaman Sad, Joe Biden Happy, and John Lewis Dance

"https://youtu.be/lI1c-Lbd4Bw

The saddest person on the Inaugural stage was not Mike Pence, the outgoing Vice President. Indeed, after what he had to put up with from Trump for the last month, he’s probably relieved if not outright happy. The saddest person was not Amy Klobuchar or other presidential hopefuls who came up short during the primaries, who no doubt imagined themselves as the person taking the oath of office today. The saddest person on the stage today was the Reverend Doctor Silvester Beaman of Bethel AME Church in Wilmington, Delaware.

The happiest person on the stage was President Joe Biden, but it’s not because he was sworn in as the 46th president of the United States of America. It’s not because the inauguration went off without more violence. It’s not because he can finally *do* things to address all the problems he and we are facing, which had to have been incredibly frustrating as the transition floundered and foundered and blundered its way to today. It’s not because he accomplished what Beau wanted him to do.

The reason Beaman was so sad and Biden was so happy is this: Biden finished before Amanda Gorman spoke and Beaman had to follow her. Honestly, I half expected Beaman to step up to the microphone, ask “Can I get an Amen?”, and then drop the folder with his prepared benediction and sit down. Don’t get me wrong: Beaman’s words were good, but he had to know that he was following something epic.

When I saw Gorman come down the Capitol steps wearing her yellow power coat, her bold hoop earrings, her bright red wrap around the powerful tight braids atop her head, I just sat back and smiled. Michelle Obama looked great in her purple, but she was a member of the audience today. Lady Gaga and Jennifer Lopez both made their entrances before they picked up the microphone, and were fine, but Gorman owned those steps in a way that no on else did today. Seeing her enter reminded me of AOC stepping onto the House floor in her power red suit as she prepared to respond to being called a “fucking bitch” by Florida Congressman Ted Yoho. Before Gorman opened her mouth, it was clear that she had Something To Say and it was going to be good.

And make no mistake: she did, and it was.

It was incredibly powerful for three reasons. First, Gorman was unapologetically herself: young, African-American, articulate, and proud of all three. She did not cast herself as Maya Angelou or Robert Frost, two earlier inaugural poets. She spoke with the rhythms of rap that are the language of her generation and her community, embracing the whole heritage of Africans on this continent, and conscious of her power in this moment.

Second, Gorman was unflinchingly honest. She spoke of the ugliness of our history at times, at the tragedies we have been through, and the reality of what is going on right now. There were no pious platitudes to paper over the pain that far too many have had to deal with for far too long.

Most of all, Gorman was unimaginably hopeful. If she owned and possessed the four centuries of pain poured out on the Africans brought to this country in chains and their descendants who lived through slavery, official Jim Crow, and unofficial oppression, she also owned and possessed the strength that carried them through it all, forcing this country to slowly and painfully look at its past, decide to change, and actually make those changes begin to come to be.

But while democracy can be periodically delayed,
it can never be permanently defeated.
In this truth, in this faith we trust
for while we have our eyes on the future, history has its eyes on us.

This is the era of just redemption.
We feared it at its inception.
We did not feel prepared to be the heirs of such a terrifying hour,
but within it, we found the power
to author a new chapter,
to offer hope and laughter
to ourselves so while once we asked,
how could we possibly prevail over catastrophe?
Now we assert:
how could catastrophe possibly prevail over us?

We will not march back to what was,
but move to what shall be
a country that is bruised, but whole,
benevolent, but bold,
fierce, and free.
We will not be turned around or interrupted by intimidation
because we know our inaction and inertia will be the inheritance of the next generation.
Our blunders become their burdens.
But one thing is certain,
if we merge mercy with might and might with right,
then love becomes our legacy and change our children’s birthright.

And with these words, I thought immediately of John Lewis, the happiest person *not* on the stage today.

Gorman was not mindlessly repeating the words of an earlier generation of activists, but building on them. Just as the 23 year old John Lewis spoke on the steps of the Lincoln Memorial in 1963, so the 22 year old Amanda Gorman stood at the other end of the Mall, on the steps of the Capitol in which John Lewis served until he died, and she is taking this nation one more step forward. She isn’t asking permission to do this, or suggesting this be done. She is declaring reality: we will not be turned around or interrupted by intimidation.

I am glad that Joe Biden and Kamala Harris defeated Donald Trump and Mike Pence. I am relieved that we have made it through the transition between the election and today. I am still shaken by the insurrection of January 6th and what may yet lie ahead on that front. But I am dancing in my living room right now, and am convinced that John Lewis is dancing in heaven today, because in Amanda Gorman we see that the good troublemaking goes on.

How could catastrophe possibly prevail?

Inauguration Day 2021: Celebrate!

Not much content going into this post apart from an observation of key landmarks:

— First woman vice president

— First Black and Asian vice president

— First Jewish Second Spouse

— First Catholic president sworn in by a Catholic Chief Justice

— First cabinet in which there is a greater percentage of Black appointees compared to percentage of Black population

— Oldest president sworn into office

— First Democratic control of Senate since 2011

President Biden will sign executive orders today which include returning to the Paris Agreement on climate change:

Vice President Harris will swear in Georgia’s new senators Jon Ossoff and Rafael Warnock, and her replacement for California, Alex Padilla.

Let’s celebrate the moral universe’s arc shifting toward justice again.

If you have a landmark you believe we should note, please share it in comments.

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UPDATE-1 — 3:50 P.M. ET —

Biden has named new acting leadership in departments; this should counteract some of the hangers on left behind by the Trump administration until more permanent personnel changes can be made including the approval of Biden’s nominees.

Hope network access and security clearance has been removed from a few folks whose status is questionable going forward. The cost to put them into special assignments would be much less than the cost of remediating a security threat.

Minority Report: Biden’s Waiver-Needed SecDef Nominee Lloyd Austin

[NB: Check the byline, thanks. Opinion herein is mine alone. / ~Rayne]

I started writing this post about Biden’s nominee for Secretary of Defense during the first week of December; this portion of the post remains unedited after the events of January 6. I’ve left the first two-thirds unchanged to make a point.

~ ~ ~

Before I get to the meat of this post let me pose a few questions:

Can you name a Fortune 1000 CEO who is American by birth, Black, or a woman, or both?

Can you think of a Fortune 1000 CEO who is American by birth and a minority with a long, successful track record of leading a transnational corporation with more than 50,000 employees?

Can you think of an American citizen who is a minority who has led an international NGO with more than 50,000 employees?

There are fewer than 40 CEOs fitting the description leading in the corporate sector. In late 2019 the percentage of Black and/or woman CEOs was roughly 0.036%.

Corporate America is still absurdly homogeneous even after decades of women obtaining more than half the business degrees awarded in the U.S., and after affirmative action efforts by universities up to 2006.

We can be certain that the next layer of management below CEO and president looks just like this — ridiculously white and male. Major U.S. nonprofits look marginally better.

However this is the most obvious pool of candidates for Secretary of Defense under the National Security Act of 1947, from which Joe Biden should select the next SecDef.

~ ~ ~

Today’s military is deeply challenged:

The collisions of the USS Fitzgerald and USS McCain in 2017 revealed serious weakening of discipline at a time when geopolitical tensions are mounting with China and Russia. Corrective action is ongoing.

The disappearance and murder of Army Spec. Vanessa Guillén in 2020 as well as the death of Pvt. Gregory Wedel-Morales in August 2019 brought to light systemic problems at Fort Hood in Texas. Punitive measures were only just announced yesterday, resulting in firing and demotion of at least 14 leadership personnel at the base. If these failures were deep in the third largest U.S. military base on American soil, there are likely similar failures if at smaller scale at other bases.

The military has become a training ground not for our own troops but future domestic terrorists, as these examples demonstrate:

  • An active-duty Marine, Vasillios Pistolis, assaulted counter-protesters at the “Unite the Right” rally in Charlottesville, SC in 2017. He had been a member of white supremacist group Atomwaffen and then a different unnamed extremist organization while he was in the military.
  • ProPublica found multiple active-duty military members and veterans who were members of white supremacist or nationalist extremist groups during their investigation into Pistolis post-Charlottesville.
  • This past June in Nevada, three veterans were arrested on terrorism charges. They intended to elevate protests against pandemic-related business closures into violence.
  • Three of four neo-Nazis planning to attack Black Lives Matter protesters were former Marines; the fourth was an active duty Marine serving in North Carolina when he was arrested in October along with his co-conspirators.

In response to ProPublica’s investigative reporting on Pistolis, House Rep. Keith Ellison demanded an investigation into white supremacy’s influence on the military; he also asked then-Secretary of Defense James Mattis to share “steps currently being taken to screen recruits for extremist ties.” It’s not clear what happened following Ellison’s demand.

A sizable number of domestic terror threats generated by veterans and active-duty military have roots in far right extremism associated with white supremacy, from veteran Timothy McVeigh who bombed the Alfred P. Murrah Federal Building in 1995 to this October’s planned attack on BLM protesters. The military needs to stem the toxic influence of white supremacy with active anti-racism, including deplatforming Confederate icons. The National Defense Authorization Act (NDAA) passed in early December by a veto-proof majority in the House; the bill required the Defense Department to remove names of Confederate leaders and rename them in an effort to remove racists figureheads from the military.

Effectively addressing systemic lapses in military discipline and subversive influences threatening national security requires a strong grasp of U.S. military culture, let alone an appreciation for the diverse force of 1.3 million active duty personnel, of which only 57% were white in 2017:

… In 2017, women represented 16% of the overall active duty force, up from 9% in 1980 and just 1% in 1970.

The percentage of officers who are women has steadily grown since the 1970s. For example, in 1975, 5% of commissioned officers were women, and, by 2017, that share had risen to 18%.

… In 2004, 36% of active duty military were black, Hispanic, Asian or some other racial or ethnic group. Black service members made up about half of all racial and ethnic minorities at that time.

By 2017, the share of active duty military who were non-Hispanic white had fallen, while racial and ethnic minorities made up 43% – and within that group, blacks dropped from 51% in 2004 to 39% in 2017 just as the share of Hispanics rose from 25% to 36%.

Fortune 1000 corporations’ diversity among C-level executives is a joke by comparison.

~ ~ ~

To realize the principle of civilian control of the military, the National Security Act of 1947 requires the president to select and nominate a SecDef from the civilian population. Candidates may be veterans but must not have served in the military during the previous seven years before nomination.

In a liberal democracy, civilian control of the military should ensure the military serves the interests of the nation rather than the other way around. It’s also intended to avoid the rise of a state within a state, in which a military co-equal in authority to the civilian government may act in a fashion contrary to the nation it is supposed to serve.

1947 was a very different time; the nation was wholly unified, still unwinding from its war footing. It was beginning a reduction in force in a measured fashion. The U.S. had also learned considerably about the nature of fascism and autocracy during the previous decade and was extremely sensitive to threats to democracy.

Today, however, we can see fascism blooming rapidly, some encouraged by hostile entities outside the U.S., some within the U.S. arising from dissatisfaction with the status quo. Without a unifying sense of purpose, too many Americans have pulled away from democratic values seeking instead to be gratified by autocratic power.

It’s led to the nascent development of a state within a state — the rise of white supremacy as a fifth column inside our military.

And the civilians who have served as secretaries of defense over the last four years have failed to stem this toxic bloom which poses a clear and present national security threat.

With Trump, the reality TV CEO as commander-in-chief, the fifth column feels encouraged and validated.

Real CEOs and other C-level executives are simply not up to the job of extirpating the poison when it cannot see the same white supremacy at work within its ranks. In their world a fifth column represents a group ready to spin off a new startup or seek a buyer to acquire the parent corporation. That’s not democracy.

~ ~ ~

Biden nominated retired four-star general Lloyd Austin to be SecDef, though Austin only left the military in March 2016. As you can see from the 2009 photo used on the front page, Austin served during Biden’s tenure as VP under the Obama administration. Biden knows Austin.

But because Austin has only been out of the service not quite five years to date, there has been immediate rejection of Austin’s nomination on both sides of the aisle out of concern for the civilian-controlled military doctrine.

Austin requires a waiver from Congress to serve as SecDef because of the 1947 National Security Act. He should receive the waiver because he has not yet been deeply acculturated into Corporate America’s deeply racist system, and he’s still very familiar with the military as it was before Trump’s term aggravated the relationship between the executive office and active duty personnel. The inadequate response to Russia’s sponsorship of attacks on American and coalition forces in Afghanistan serves as one example.

~ ~ ~

And now the January 6 Capitol Building insurrection makes it ever more obvious there’s a deep challenge inside the Defense Department. Far too many of the participants in the rebellion were active duty military, reservists, or veterans, suggesting they may have gone into the military with the idea they were training for this moment. Or perhaps they managed to get through their military service with their pre-existing bigotry intact if not enhanced. DOD needs to do a better job of weeding these persons out of the service because they are a clear and present danger to national security as January 6 proved.

But a leader from Corporate America will not be up to the task. They have proven themselves incapable of fixing the diversity problem in their own industries. When it comes to institutional misogyny, they can’t claim a pipeline problem because women have been more than half of all bachelor’s degrees awarded each year for more than two decades. The number of bachelor’s degrees awarded to whites has fallen over the last two decades while it increased among Black, Latinx, and Asian Americans. And yet representation at upper levels of America’s corporate sector has barely budged.

Nor will a leader from Corporate America understand what the options are for screening, remediating, and removing insurrectionist elements inside the military. We do not have the luxury to teach someone from the corporate world where the problems are and how to address them after coming so close to the overthrow of our government.

How many corporate leaders would be able to stop a hostile takeover of their own corporation? It’s not the same as armed insurrectionists showing up in their offices threatening to kidnap, try, and execute management, but we can’t even be certain the corporate world produces leaders who can fend off traditional takeovers.

We don’t have time for on the job training; we can’t fuck around and find out with our national security at stake.

And I haven’t even mentioned the possibility of rapid deployment of military resources to aid rollout of vaccines and PPE in our response to the COVID pandemic — yet another facet of our nation’s security.

~ ~ ~

Lastly, we have to think of this period as a reset — our democracy has been threatened deeply, and the threat had nothing to do with having former military lead the Defense Department. It came from persons who included those who were radicalized in spite of their previous or current military service; it came from the top of the executive branch from someone with absolutely no respect for the military except as a means to his personal ends.

It fomented while civilians led the Defense Department.

15 former Defense Department leaders have asked Congress to offer a waiver for Austin, including former senator Chuck Hagel, former Obama chief of staff Leon Panetta, and William J. Perry, all of whom were SecDefs under previous administrations. Their letter to members of the Senate Armed Services Committee makes a sweeping opening acknowledging the unique challenges of this moment in history:

As former Republican and Democratic Secretaries of Defense, Deputy Secretaries of Defense, and Service Secretaries representing the Departments of the Army, the Navy, and the Air Force, we understand the qualities necessary to lead the U.S. Department of Defense. More pertinently, we understand what it takes to lead as a civilian at the department charged with the first and most essential task of the United States government, namely, to keep Americans safe. Rarely in our history has that been a more difficult challenge. Our nation faces a pandemic that has taken a terrible toll on America and on our allies; aggressive adversaries challenging us around the globe and in cyberspace; a rising China whose interests and values often do not align with ours; and a threat from domestic terrorism that has rarely been more clear or more dangerous.

In essence, they acknowledge a civilian leader at SecDef may not be up to the job this transitional period demands, though they acknowledge the importance of civilian-led military to our democracy.

The only previous waivers granted have been for George Marshall under Eisenhower in 1950, and James Mattis in 2017 under Trump. In hindsight Mattis’ waiver may have been a mistake since the problem of white supremacy and nationalism inside the military festered under his watch as SecDef; but one might also make the case that civilian leadership following Mattis by Mark Esper did no better. Under the more recent leadership of Acting SecDef Christopher Miller, conditions worsened — we still won’t know for some time exactly what Miller’s role was in the failures to protect the Capitol.

What all three most recent SecDefs shared in common may also have led to their failure to check the internal threats: all nominated by Trump, all of them white men who may simply not grasp the ways in which systemic racism and misogyny gnaw at our defense infrastructure.

The threat racism poses to our national security is immediate, exemplified by the two National Guard members removed from inauguration duties for their ties to right-wing militia organizations, nearly all of which are sympathetic or overlap with white supremacist or nationalist entities.

The Senate may have its doubts but it should offer the waiver for Austin and approve him as SecDef given the nature of threats we face. Congress should also follow through on Rep. Ellison’s demands for an investigation into white supremacy, nationalism, and other insurrectionist threats within the military, only give it teeth by legislating this as a regular institutional obligation with mandatory reports, measurable oversight, and punitive action spelled out. Make sure that the Secretary of Defense is directly responsible for this effort.

Legislate a review of this investigation and subsequent corrective action by the congressional committees responsible for military oversight on an annual basis, with a recommendation to retain or replace the SecDef based on measurable performance.

That’s where the ultimate oversight of the military should occur and where civilians continue to restrain military power — in the halls of Congress.

Trash Talk Is Back, And It Is Max!

Calling the current GOP “fuckers” is one of the most true and innocuous things I have ever seen or heard. They are among the, if not the, most destructive humans currently on the face of the earth. Take Mitch McConnell. Please. If these fuckers are not fuckers, then who would real fuckers ever aspire to be?

So, what is up?

Apparently 737 Max aircraft are back up, and it may be being hidden from you. Or may not. But this is indeed something to keep your eye on as it was the explicit suggestion of the hollow branding man in chief, Trump:

“Even President Trump has weighed in on the MAX name: “If I were Boeing, I would FIX the Boeing 737 MAX, add some additional great features, & REBRAND the plane with a new name,” he Tweeted in April.”

Don’t know about you, but I will not be boarding one of those planes.

Okay. Enough. There are real games out there. Not just the ones in Washington. I’d say and Washington, as in Seattle, but Boeing moved to the home of Rahm, Chicago.

Clemson has demonstrated clearly what fakers Notre Dame have been all along. Too bad they can’t do that for Ohio State too. Coastal Carolina deserves to be in the final four far more than either the Domers or the Buckeyes. It is almost comical how hard the NCAA tries to always put posers in their finals instead of the best teams. Nebraska barely held on to beat….Rutgers. Texas A&M beat the Vols, but pretty shocked that Oklahoma edged out Brock Purdy and Iowa State (both with Phoenix area QBs that will play on Sundays soon enough).

Josh Allen is, as we speak, and his Bills crushing the Broncos. Can Carolina take it to 12 and the Pack in Lambeau? Not going to take that proposition. Pats at Fins will be really interesting. So far, it looks like Flores is building right and Tua is real. But Bill Bel will game for this, and I’ll bet on that. Might have taken the WFT at home over the Squawks, but for Alex Smith being out again. The big game is really the Chefs at the Saints. Drew Brees will be back, but Nawlins is not the same without the raucous crowd. Mahomes is too much.

Let it rock. Don’t laugh at the music, she can really sing. Even Dolly thinks so.

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