I expected nothing less than high-quality discourse in response to this post, and I've gotten nothing less. From an email:
"So you are saying that everyone is lying except you? But then how do I know you aren't lying too? Oh, I should believe you but not those others.
If everyone lies that everyone includes you.
Wait! I should trust your judgement but not those others, because well....why? Oh, because you say so.... Well that makes sense.
You left out the line: On my word as a White. Not quite the same ring as On my word as a Biden but close enough.
I don't believe the others. I don't believe you either. I don't trust their judgement. I don't trust yours either. Everyone has an agenda. You are not the exception to that rule despite what your ego tells you.
All of you remind me of the joke about the little boy:
There is a famous joke about a child who wakes up on Christmas morning and is surprised to find a heap of horse manure under the tree instead of a collection of presents. Yet, the child is not discouraged because he has an extraordinarily optimistic outlook on life. His parents discover him enthusiastically shoveling the manure as he exclaims, “With all this manure, there must be a pony somewhere!”
New York Times language maven William Safire stated that the entire joke would be brought to mind for many readers by simply mentioning the punchline: There must be a pony.
I've heard "there must be a pony in there somewhere" used in contract negotiations after some buffoon went off on a long tangent. It's an absolutely devastating comment.
I believe this email is sent in error. You sent it in response to a newsletter from SubStack to which you subscribed. I believe you meant to send it to one of the OnlyFans performers to whom you subscribe.
Hey, look on the bright side! Normally they add one more word to that phrase, one that rhymes with “maggot”. That bit of self restraint is progress on the part of the terminally online.
These are big, serious crimes, and they deserve to be discussed seriously and honestly. Odds of that happening are so slim even Lloyds won’t make book on it.
Now let me explain why everyone who disagrees with me has bad intentions, strange sexual fetishes, and small genitalia.
I was referencing the tendency of political fanatics to refer to those they disagree with them as cucks, groomers, gun-humpers, etc. No association between the listed categories was intended.
Understood. Yes, it’s a wearyingly common brand of horseshit, to reflexively argue that the person on the other side is a bad person in some way. It couldn’t possibly just be a mundane disagreement. Or a philosophical disagreement in good faith. It always has to be argued til the end of the earth.
I’m relaxed about thinking someone’s a dumbass if they can’t listen to me, or process my argument. Or they insist on arguing against something i didn’t say. But that doesn’t make them a terrible monster, just a dumbass. Everybody is a dumbass about something. I don’t understand curling. I’m not proud of it.
We should give Rich and company a break. They rushed this piece out about 5 hours after the indictment dropped. Who has time for meticulous case review when there's hot takes to get out?
I care about the truth so I'm compelled to note that believing the national review editorial team knows better is downright foolish and self-deceit. The national review is not committed to truth and most assuredly doesn't want to know better.
“Based on this, Ken clearly thinks Al Gore and Larry Lessig should’ve been prosecuted under 371 for the agreements and overt acts they took to overthrow the electoral vote count. It may shock you to learn Ken never took that position before! Hacks gonna hack.”
I’m not going to respond directly because it’s so manifestly bad faith bullshit. But for those who want to known in good faith and are truly interested: Al Gore litigated the 2000 election with the assistance of Lessing. Once he had a final loss — in SCOTUS — he conceded the election the next day. Unlike Trump, he never provided any data or argument to the Senate tabulation and certification session, let alone slates of fake electors or other fraudulent claims. Notably, the Trump indictment specifically mentions that Trump litigated, and specifically disclaims treating that as part of the criminal fraud, even though it was universally unsuccessful. The person asking this question is using a dumb/dishonest/both talking point for dumb/dishonest/both people.
Since accomplices made up the Impeachment "jury", and the then Senate majority leader allowed (encouraged) corruption of Impeachment #2 indicating it was the Courts job to hold accountable, the National Review position is ludicrous.
Oh yeah, the proper mechanism was definitely the thing their party blocked at every juncture and also said was improper that we would need a time machine to correct anyway 🙄 This whole article is one giant fart noise from a group of people who want to get street cred for defending Trump from their MAGA base while rationalizing to themselves "we're not actually defending his CONDUCT here, its just a process dispute." They, and the vast majority of the donor class GOP, have developed an acute case of spinal aplasia 🩻
This is a really great post. I think it’s just a bit overheated in a few places -- I think it’s a reasonable possibility that the NR crew that wrote this is some combo of impressively stupid, impressively reckless, and impressively ill-informed, and therefore to accuse them of lying is not quite as well-grounded as I’d like -- but it’s certainly fair to say (as you do) that, at best, the Cliff Clavens are running the office.
As counter-factual, ask yourself would NR have written this if it was Joe Biden or Hilary Clinton being charged with these offences? Clearly not. They are being partisan. They lied.
Thank you. This is an important piece, elegantly and intelligently written. I often think about how much pain the Senate could have saved the country by convicting on the second impeachment. But we are where we are, and are fortunate to have Ken's calm and clear takes amid all the ongoing nonsense. It is going to be a long year. Again.
Thank you for writing this. The bit about past uses of 241 was particularly enlightening.
Do you have any thoughts on the 'Costanza Defense' -- "it's not a lie if you believe it" -- that's going around? I know the indictment thoroughly establishes that Trump had been informed by his own officials that the statements he was making about the election were not true. Is there some kind of "a reasonable person would have known they were lying" standard? Or is there potentially a plausible defense that Trump is such a deluded narcissist that he really thought he had won every state?
One thing they don't get into in the episode but I'd love to hear discussion on is that the indictment seems tailored in part to get around the Constanza Defense by saying that regardless of whether Trump's objections to the vote count were sincere, he knew the lawful path for contesting an election result and after that failed, rather than accept being out of options he pursued an UNlawful one, with full awareness among the conspirators that they were breaking the law.
The analogy that jumps to mind is that if I were convinced beyond all reason that Donald Trump had stolen my life savings and hidden the money in a safe in Mar-A-Lago, and proceeded to smash a window at his residence, enter the building under cover of night, and crack the safe open. The sincerity of my beliefs about its contents would not protect me from a burglary charge, especially if several of my close friends had been recorded telling me that burglary is illegal a few hours before.
I believe it is beyond a reasonable doubt that Trump simply lied in order to get the Presidency. There were numerous probably false, at a 1+1=2 level, statements about voter fraud. As I recall, even the co-conspirators had told him these 1+1=2 statements were false and he still used them to induce fraudulent actions by Pence, Congress or State officials.
Besides telling Pence he's "too honest," the fake elector certificates were built on lies regardless of his beliefs on voter fraud. The electors were induced with a blatant lie that the certificates would only be used if court challenges were successful. State laws, such as the Georgia code here, are strict in requiring a court order to change deadlines.
Does Trump know this OCGA section? Of course not. But the fake electors *did* care about whether the certificates would only be sent if litigation was successful. Their signatures said they were "duly elected." Whether a certificate is given to Pence/Congress with only a successful court challenge isn't some opinion. Either the certificate is sent to the Archivist or given to Pence, or it is not.
There's another path to getting at the knowingly and willfully part of the elements of fraud here, which is "reckless disregard" for the truth. Basically, if someone is being told by others that what they think is true is not true and they make no effort whatsoever to ascertain what the truth is by being willfully blind about it, that can meet the "knowingly and willfully" component.
Thanks for this., Ken Over the years, I have found your takes on federal criminal law and procedure (and the First Amendment) to be consistently knowledgeable and fair-minded I have come accords; no exception here
I expected nothing less than high-quality discourse in response to this post, and I've gotten nothing less. From an email:
"So you are saying that everyone is lying except you? But then how do I know you aren't lying too? Oh, I should believe you but not those others.
If everyone lies that everyone includes you.
Wait! I should trust your judgement but not those others, because well....why? Oh, because you say so.... Well that makes sense.
You left out the line: On my word as a White. Not quite the same ring as On my word as a Biden but close enough.
I don't believe the others. I don't believe you either. I don't trust their judgement. I don't trust yours either. Everyone has an agenda. You are not the exception to that rule despite what your ego tells you.
All of you remind me of the joke about the little boy:
There is a famous joke about a child who wakes up on Christmas morning and is surprised to find a heap of horse manure under the tree instead of a collection of presents. Yet, the child is not discouraged because he has an extraordinarily optimistic outlook on life. His parents discover him enthusiastically shoveling the manure as he exclaims, “With all this manure, there must be a pony somewhere!”
New York Times language maven William Safire stated that the entire joke would be brought to mind for many readers by simply mentioning the punchline: There must be a pony.
Keep adigging Ken"
Always intriguing to see how many words a person can use without ever actually addressing the point in question.
We must do something about the pony menace.
Well, when you only have ad hominem attacks...there is no substance.
It always comes back to the ponies.
“I can’t trust anybody therefore I will go along with the dissent” can probably sum up half of all self-professed independents.
Reality is just a construct, maaan. If you took the red pill you'd understand.
I've heard "there must be a pony in there somewhere" used in contract negotiations after some buffoon went off on a long tangent. It's an absolutely devastating comment.
Thanks for the summary. When a person can't argue with your point, they lazily claim they don't trust anyone.
That's really brilliant. I find myself just replying "No" to those erections and decline to further elaborate or engage. But, I like your way better.
Entire text of an email I just got on this: “cry more”
My response:
“Dear Mr. —-,
I believe this email is sent in error. You sent it in response to a newsletter from SubStack to which you subscribed. I believe you meant to send it to one of the OnlyFans performers to whom you subscribe.
Very truly yours,
Ken White”
That sounds a bit like "I feel that you should be aware that some asshole is signing your name to stupid letters."
I love that story https://news.lettersofnote.com/p/very-truly-yours
What's funny is that "cry more" would have been a perfectly fine reply to the National Review's editorial because it's such crap.
They ignored or didn't comprhenend your guidelines for how one can tell the truth from a lie or mistake.
Which I valued and thought about forwarding to people I know, but those who need it won't listen.
Yep. How sad that is.
Owned.
Hey, look on the bright side! Normally they add one more word to that phrase, one that rhymes with “maggot”. That bit of self restraint is progress on the part of the terminally online.
Amen.
These are big, serious crimes, and they deserve to be discussed seriously and honestly. Odds of that happening are so slim even Lloyds won’t make book on it.
Now let me explain why everyone who disagrees with me has bad intentions, strange sexual fetishes, and small genitalia.
A side issue, maybe, but I think one can have strange sexual fetishes and also have good intentions.
Also large genitalia.
I was referencing the tendency of political fanatics to refer to those they disagree with them as cucks, groomers, gun-humpers, etc. No association between the listed categories was intended.
Understood. Yes, it’s a wearyingly common brand of horseshit, to reflexively argue that the person on the other side is a bad person in some way. It couldn’t possibly just be a mundane disagreement. Or a philosophical disagreement in good faith. It always has to be argued til the end of the earth.
I’m relaxed about thinking someone’s a dumbass if they can’t listen to me, or process my argument. Or they insist on arguing against something i didn’t say. But that doesn’t make them a terrible monster, just a dumbass. Everybody is a dumbass about something. I don’t understand curling. I’m not proud of it.
That was good for a chuckle, and I value those so danke.
We should give Rich and company a break. They rushed this piece out about 5 hours after the indictment dropped. Who has time for meticulous case review when there's hot takes to get out?
It is better to be careful and correct than to rush to make an ass of one's self.
I just spit Diet Coke. Thanks sir!
They've been focused primarily on beer cans. I'm sure this indictment stuff is boring.
I care about the truth so I'm compelled to note that believing the national review editorial team knows better is downright foolish and self-deceit. The national review is not committed to truth and most assuredly doesn't want to know better.
Yeah, I did wonder if they were just ignorant, but I'll take ignorant on purpose too. Or all of the above.
I think they are primarily propagandists for the far right generally and for Trump specifically.
There was a comment below:
“Based on this, Ken clearly thinks Al Gore and Larry Lessig should’ve been prosecuted under 371 for the agreements and overt acts they took to overthrow the electoral vote count. It may shock you to learn Ken never took that position before! Hacks gonna hack.”
I’m not going to respond directly because it’s so manifestly bad faith bullshit. But for those who want to known in good faith and are truly interested: Al Gore litigated the 2000 election with the assistance of Lessing. Once he had a final loss — in SCOTUS — he conceded the election the next day. Unlike Trump, he never provided any data or argument to the Senate tabulation and certification session, let alone slates of fake electors or other fraudulent claims. Notably, the Trump indictment specifically mentions that Trump litigated, and specifically disclaims treating that as part of the criminal fraud, even though it was universally unsuccessful. The person asking this question is using a dumb/dishonest/both talking point for dumb/dishonest/both people.
Funnily enough, Sen, Lindsey Graham brought up the former vice president while talking to the Great Trumpkin during this mess.
“If the Vice President has unilateral power to reject electoral votes, then why didn’t Al Gore reject Florida’s electoral votes in 2000?” said Graham.
“Because Al Gore wasn’t as smart as me.” Trump replied.
All righty then. /s.
Perhaps Kamala is.
Opening Henry V quote appreciated
Very apt. This whole series of events is Shakespearean.
Yeah, as in a tragedy with occasional comedic flourishes.
Are Giuliani and Powell the Rosencranz and Guildenstern comic relief?
I’m seeing them as Dogberry and Verges, from Much Ado
More like 2 of the 3 hags...?
Nah. The witches were far more realistic and made far more accurate predictions than those two clowns.
Point, acknowledged.
!!!
"This indictment describes a course of conduct that should live in infamy for centuries, [...] for as long as the country endures."
Given our current circumstances, "centuries" seems wildly optimistic.
My bet is it does.
Since accomplices made up the Impeachment "jury", and the then Senate majority leader allowed (encouraged) corruption of Impeachment #2 indicating it was the Courts job to hold accountable, the National Review position is ludicrous.
https://www.usnews.com/news/politics/articles/2021-02-14/read-mcconnell-speech-after-trumps-impeachment-trial-acquittal
Oh yeah, the proper mechanism was definitely the thing their party blocked at every juncture and also said was improper that we would need a time machine to correct anyway 🙄 This whole article is one giant fart noise from a group of people who want to get street cred for defending Trump from their MAGA base while rationalizing to themselves "we're not actually defending his CONDUCT here, its just a process dispute." They, and the vast majority of the donor class GOP, have developed an acute case of spinal aplasia 🩻
This is a really great post. I think it’s just a bit overheated in a few places -- I think it’s a reasonable possibility that the NR crew that wrote this is some combo of impressively stupid, impressively reckless, and impressively ill-informed, and therefore to accuse them of lying is not quite as well-grounded as I’d like -- but it’s certainly fair to say (as you do) that, at best, the Cliff Clavens are running the office.
Never attribute to malice what can be adequately explained by incompetence.
As counter-factual, ask yourself would NR have written this if it was Joe Biden or Hilary Clinton being charged with these offences? Clearly not. They are being partisan. They lied.
Thank you. This is an important piece, elegantly and intelligently written. I often think about how much pain the Senate could have saved the country by convicting on the second impeachment. But we are where we are, and are fortunate to have Ken's calm and clear takes amid all the ongoing nonsense. It is going to be a long year. Again.
Thank you for writing this. The bit about past uses of 241 was particularly enlightening.
Do you have any thoughts on the 'Costanza Defense' -- "it's not a lie if you believe it" -- that's going around? I know the indictment thoroughly establishes that Trump had been informed by his own officials that the statements he was making about the election were not true. Is there some kind of "a reasonable person would have known they were lying" standard? Or is there potentially a plausible defense that Trump is such a deluded narcissist that he really thought he had won every state?
One thing they don't get into in the episode but I'd love to hear discussion on is that the indictment seems tailored in part to get around the Constanza Defense by saying that regardless of whether Trump's objections to the vote count were sincere, he knew the lawful path for contesting an election result and after that failed, rather than accept being out of options he pursued an UNlawful one, with full awareness among the conspirators that they were breaking the law.
The analogy that jumps to mind is that if I were convinced beyond all reason that Donald Trump had stolen my life savings and hidden the money in a safe in Mar-A-Lago, and proceeded to smash a window at his residence, enter the building under cover of night, and crack the safe open. The sincerity of my beliefs about its contents would not protect me from a burglary charge, especially if several of my close friends had been recorded telling me that burglary is illegal a few hours before.
The podcast goes into it.
I believe it is beyond a reasonable doubt that Trump simply lied in order to get the Presidency. There were numerous probably false, at a 1+1=2 level, statements about voter fraud. As I recall, even the co-conspirators had told him these 1+1=2 statements were false and he still used them to induce fraudulent actions by Pence, Congress or State officials.
Besides telling Pence he's "too honest," the fake elector certificates were built on lies regardless of his beliefs on voter fraud. The electors were induced with a blatant lie that the certificates would only be used if court challenges were successful. State laws, such as the Georgia code here, are strict in requiring a court order to change deadlines.
https://codes.findlaw.com/ga/title-21-elections/ga-code-sect-21-2-499/
Does Trump know this OCGA section? Of course not. But the fake electors *did* care about whether the certificates would only be sent if litigation was successful. Their signatures said they were "duly elected." Whether a certificate is given to Pence/Congress with only a successful court challenge isn't some opinion. Either the certificate is sent to the Archivist or given to Pence, or it is not.
I was thinking about this too, I think Pence’s testimony will be key. The “you’re too honest” remark is important.
There's another path to getting at the knowingly and willfully part of the elements of fraud here, which is "reckless disregard" for the truth. Basically, if someone is being told by others that what they think is true is not true and they make no effort whatsoever to ascertain what the truth is by being willfully blind about it, that can meet the "knowingly and willfully" component.
This is in the context of a different statute, but same basic idea: https://www.justice.gov/archives/jm/criminal-resource-manual-910-knowingly-and-willfully
They cover this in the episode: ~15:20.
Thank you.
Wouldn't he have to cop to that in court?
Thank you Ken. I inhale your posts and appreciate the details.
It really is shocking how Trump-smacked NR is. Really looking forward to seeing DJT go down.
Their editorial policy is if the Dems are for it, we’re against it.
If only that applied to their survival behavior like eating and breathing, something we know dems are for. It would take care of the problem quickly.
Thanks for this., Ken Over the years, I have found your takes on federal criminal law and procedure (and the First Amendment) to be consistently knowledgeable and fair-minded I have come accords; no exception here