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On Proving Seditious Conspiracy

Terry H. Schwadron

Jan. 17, 2022

The serious and rare seditious conspiracy charge we heard last week arising from the Jan. 6 insurrection feels like it was a long time coming.

The issue now is that this charge can be difficult to prosecute successfully. Necessarily, we are left wondering whether the Justice Department has the goods to make its case. After months of criticism over whether the department was dawdling on considering more serious allegations against the organizers of Jan. 6, Justice has to get it right.

In the few instances of its use, prosecutors have found it difficult to persuade jurors that militia groups, for example, pose a threat, even though the statute only requires showing an intent to carry out an attack even if not successful.

Assuming Justice has plenty of evidence, we are once again hearing speculation as to whether the seriousness of this charge will prompt others to cooperate with investigative authorities.

As much as Justice discloses in its 48-page, 17-count indictment, there is plenty the prosecutors don’t say about the evidence.

The seditious conspiracy law makes it a federal crime to conspire to use force to overthrow the US government or to try to prevent the execution of a federal law.

In most news outlets, the charges were seen as an important shift for Justice on Jan. 6 issues into corralling those planning the insurrection even away from the Capitol, though Breitbart, Newsmax and OANN outlets ignored it altogether, and Fox kept the story well into its also-ran headlines.

Charging the Oath Keepers, who recruit members from the military and law enforcement, raises all kinds of questions about motivations and goals for such groups and to whom they pledge allegiance in anti-democracy fervor.

Delayed, But Now Here

For a year, the Justice and the FBI have gathered oodles of video evidence, organized nationwide arrests and launched a lot of prosecutions on relatively less severe counts. Attorney General Merrick Garland said last week that more serious charges were ahead.

This week, they arrived in the form of a seditious plot among Stewart Rhodes, founder and leader of the extremist group Oath Keepers, and at least nine others from several states in connection with the Capitol riot. A federal grand jury said a core group of Oath Keepers adherents allegedly planned for and participated in obstructing Congress on the day that lawmakers certified Joe Biden’s 2020 election victory.

The charge of seditious conspiracy is seen as difficult to prove, however. It requires prosecutors to show that at least two people agreed to use force to overthrow government authority or delay the execution of a U.S. law — and requires proving intent to do so. It does not require that they actually used force or that the plot worked.

If convicted, Rhodes could face a maximum sentence of 20 years in prison.

Rhodes’ lawyers said that the seditious conspiracy charge should not apply.

Others in the group had previously been charged with lesser crimes.

The New York Times said at least four Oath Keepers who were at the Capitol that day and are cooperating with the government have sworn in court papers that the group intended to breach the building with the goal of obstructing the final certification of the Electoral College vote.

Who Are the Plotters?

To date, there is no indication of others with whom the plotters may have had contact or coordination, though there are lots of reports about coordination among militia groups and supremacy groups.

The Oath Keepers had served as protectors of Roger Stone, a long-time adviser to Donald Trump and a reported participant in congressional committee-identified war room discussions on Jan, 5 at the Willard Hotel in Washington.

But from the indictment, we don’t know if this case points to involvement by the election-resistance coordinators who worked behind the scenes in legal, political or other ways to set up the conditions of Jan. 6.
For their part, members of the Oath Keepers who are already facing charges have said through lawyers only they converged on Washington in a security role just before Jan. 6, not to attack the Capitol.  In a Times interview  last summer, Rhodes said several members of his group had “gone off mission” by entering the Capitol, adding, “There were zero instructions from me or leadership to do so.”

The last time federal prosecutors brought a sedition case was in 2010, when they accused members of a Michigan militia of plotting to provoke an armed conflict with the government. They were ultimately acquitted

Sedition has been charged against one international terrorist, but basically has not been a charge for some decades.

CNN reported that some legal experts say a hurdle for prosecutors would be showing that some of the activity by defendants isn’t protected by the First Amendment. 

Similar hurdles grounded an effort last summer by then-Attorney General William Barr, who urged federal prosecutors to use the sedition law to prosecute violent protesters in the wake of the police killing of George Floyd.

Successful prosecution must show intent, reported Bloomberg News.  Sedition defendants are likely to argue about being caught up in the moment with no intention of committing serious offenses. So, prosecutors will use communications, social media and texts to try to show that the rioters planned to storm the Capitol and stop Congress from verifying the Electoral College vote.

It is evident that there were plenty of social media posts threatening conflict, even violence back to Barack Obama days. Whether they are targeted now is a question, though the indictment refers to substantial traffic on encrypted social media channels.

Proving it to support a sedition conspiracy charge, however, may prove more difficult.

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Sanctions, Pipelines & Politics

Terry H. Schwadron

Jan. 16, 2022

In case you’re hearing headlines about sanctions and Russia, you’ve got reason to be confused.

But just maybe it tells us something about the unnecessary twisty path that the politics of a split Senate requires these days to get anything done. The things that should be complicated too often are dismissed with a slogan, while the simple, common-sense things take on layers of political complexity.

For weeks, Senate Republicans have been pushing sanctions against the Nord Stream 2 Russia-to-Germany pipeline to show that they are tough on Russia.

Either not to be outdone in perceived toughness or to underscore unity with European allies against Russia’s aggression in Ukraine and elsewhere, Joe Biden and Senate Democrats, have opposed those targeted sanctions. Apart from all else, Biden and Democrats had wanted to support Germany’s expressed desires for the pipeline.

But now, we’re smack in the middle of an international emergency and strategic talks by ourselves and through NATO with Russians who have massed tens of thousands of troops on the Ukraine border threatening to grab a chunk of the Ukraine. Worse, we know hear that Russia is planting its own guerrillas inside Ukraine to run “false flag” operations to provide an excuse for invasion.

Biden, NATO and European leaders, in turn, are threatening to impose widespread economic sanctions if Russia moves ahead.

You’d think that a new oil pipeline from Russia might be included in those wider sanctions. Just to add to crossed strategic wires, Ukrainian officials have supported U.S. sanctions against the pipeline because it goes around the Ukraine.

So, on Thursday, the bill brought by Sen. Ted Cruz (R-Tex.) to impose those pipeline sanctions failed to win 60 votes, though it attracted a few Democratic votes.

In part, the failure came about because Democrats offered a counterproposal by Sen. Robert Menendez (D-N.J.) for wider sanctions, including the pipeline, to take effect if Russia does indeed invade Ukraine territory. It was launched to undercut Cruz.

Intricate Politics

Even getting that vote to the floor reflected an unusual political compromise struck with Cruz, that was part of the maneuvering a month ago to end single-senator objection to the appointment of dozens of U.S. diplomats. Cruz was opposing a pipeline for the first time in his life, though, admittedly, this one doesn’t involve Texas oil.

In fact, the media coverage focused on how Cruz brought about the vote rather than whether any problem is resolved by its outcome.

Nothing in the Senate is easy, politics-free, or seemingly straightforward – though one does wonder whether Sen. Kyrsten Sinema thinks that this represents good bipartisanship.

An analysis in Politico.com explains that the pipeline debate gives Republican senators a chance to squeeze centrist Democrats and those in competitive reelection races this fall who are eager to show they’re tough on Russia.

“More broadly, though, Republicans see an opportunity to turn the page on an era that found them struggling to defend (Donald Trump’s) the former president’s periodic coziness with Vladimir Putin’s government amid Russia’s documented meddling in the 2016 election,” said Politico.

Wait, what? The same Ted Cruz who apologized publicly to Tucker Carlson on Fox after criticism that he might be seen as insulting Donald Trump over whether Jan. 6 rioters were “domestic terrorists,” is the guy to suggest we need to repair perceived Trump coziness with the Russian leader?

Do I understand that Senate Republicans now are eager to leverage toughness about all-things-Russia for political advantage, except in whether Russia interfered on behalf of Trump in two national elections?

And that Joe Biden is somehow is being less than tough by waive mandatory sanctions on the pipeline last year out of a desire to support relations with Germany, which wants to bolster its natural gas resources? But the new German government has since changed its position on the issue, agreeing to hold off on final certification of Nord Stream 2 while Putin threatens an invasion of Ukraine. 

And Biden is conducting actual delicate diplomatic talks with Russia over its military buildup on the border with Ukraine, talks backed with threats of wider sanctions.

Politico quoted Sen. James Risch (R-Ida.) on the Foreign Relations Committee as saying Democrats have “just spent an enormous amount of political capital holding all their people together who do not want to be in that position” of opposing the sanctions “I mean, this absolutely doesn’t make sense.”

Well, that’s one statement we all could endorse.

What’s Reasonable?

From the cheap seats, the arguments seem reasonable to tie coordinated sanctions together as a package in the middle of an international emergency appear to make some immediate sense.

Whatever else happens as a result of Russian military threats, the response by the United States and Europe needs to be linked and clear to all parties.

As always, it is not immediately clear what sanctions voted by the U.S. Senate against a pipeline passing through European countries will actually achieve.

Germany may want the oil, Ukraine may want the route and whatever economic benefits come with it, and Russia may want the cash and influence that come from being an energy exporter to Europe. But all of that would seem to require re-alignment under the stern stare of 100,000 troops and tank turrets on the horizon.

It makes sense that we would take positions that punish Russia for specific actions without alienating our own allies.

What seems not to require new understanding is the precarious state of politics in our Senate and the desire of people like Cruz to promote himself in the name of presidential campaigning.

We seldom seem best served by having individual senators pursuing separate foreign policy agendas from the White House.

But there’s always time in the Senate day for some personal politics and self-promotion.

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How Are We Better Off?

Terry H. Schwadron

Jan. 15, 2022

OK, the Supreme Court has spoken, blocking the White House order to businesses of more than 100 workers from taking Covid public health measures. 

In brief, the conservative Court majority found 6-3 that the law authorizing workplace safety doesn’t specifically discuss vaccines or anything like it. The ruling added note that even if it did, Covid happens outside the workplace as well as inside, and the Occupational Health and Safety folks have no right to safety rules outside the workplace.

There are remarks in the majority opinion that should trouble anyone expecting the federal government to address any emergency, basically warning “The challenges posed by a global pandemic do not allow a federal agency to exercise power that Congress has not conferred upon it.”

My question is this: How are we now better off?

Even as Covid is once again surging through workplaces, cities and states, the Court – which itself has taken plenty of precautions about Covid — has taken away one of the main tools of vaccination. In focusing solely on literal language of statute, the Court majority was blind to the fact that we have oodles of workplace vacancies because we lack confidence that in-person learning is safe, prompting walkouts and withholding by teachers, nurses and others.

How are businesses whose outlets cross boundaries supposed to comply with whatever rules remain in place?

The Court made this a narrow legal issue to be solved without reference to its effects, focusing largely on who makes the call for any mandate.

It has suggested that the legally correct source of emergency health actions is not a health or workplace agency, but a permanently gridlocked Congress which is guaranteed not to act. Or, the Court says, we should depend on state’s policing powers when the reality shows a partisan split among governors who act actively blocking localities that try to enforce public health measures.

This is not only a Court that is remaking government powers but is doing so seemingly without a care for health or other effects of its narrow legal rulings.

Medical or Political?

The dissent opinion from the Court’s three liberals acknowledges that no statute could list all the medical or safety concerns that might arise in a pandemic but argues that the Court should not substitute its own judgment over OSHA’s and that public health dangers should demand a more realistic view of the effects of a ruling.

Essentially, the liberals saw mandates for vaccines, masks and distancing more akin to fire safety rules in the workplace than support for wild expansion of government power. They start and end their arguments in recognition of the actual Omicron contagion problem swamping our hospitals and affecting our workplaces, schools and homes.

The unsigned majority opinion called the OSHA order “a blunt instrument” affecting 80 million workers when the law governing workplace hazards did not justify doing so.  Further, the Court said failing to sort out some industries like meatpacking from others like landscaping for whom effects might differ.

The decision feels more political than medical, more aimed at curbing government powers than at helping to make it possible to contain Covid.

Indeed, some of the questions from conservative justices openly questioned whether vaccines carry any degree of risk.

The Court did allow a second challenge to survive, involving the mandate aimed at hospitals and clinics receiving Medicare and Medicaid Services money. But it was only because of the explicit language of the authorizing statute which allows rule-setting for health care staffers. Oddly, that is something that right-leaning media and speakers ignored totally in criticizing the Court for supporting any proposed Biden mandate.

Now What?

Away from the Court, the real world still struggles with the surge in Covid contagion. You’ve seen all the rising numbers, and the wishful thinking at the White House that the spiral will peak shortly.

What’s almost as appalling as the Court’s disregard for reality is the White House’s failure to have a Plan B ready to go in the event of an adverse Court decision.

Why didn’t Biden have an immediate telephone call or targeted message with business owners to persuade them to do what they can do about public health even without the OSHA law?

Even as Team Joe Biden is under water about providing too much Covid confusion in its policies, now add that employers now are on their own in what to do next. Of course, business owners in Florida and Texas are being encouraged by their governors to worry more about profit and services rather than about the health of their employees or consumers.

In short, this Court decision undercuts one of the most significant attempts to contain contagion and has left the country with uneven state laws and policies. It’s everyone for oneself.

At the same time, the drumbeat of frustration with a perceived failure by “government” to solve Covid, to make things normal and predictable again, continues to rise beyond loud. We’re seeing the effects in public fistfights over masks, in contentious, individual rebellion about following any rules whether for health or other.

It makes no sense to demand government to fix Covid and then take away the tools to do so,

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Arguing Over Price Rises

Terry H. Schwadron

Jan. 14, 2022

The only thing Americans seem to agree on is that they don’t like high prices, which we now have aplenty.

Consumer prices as measured by the government rose faster in 2021 than they had in any 12-month period since 1982, according to December numbers released Wednesday reflecting a 7 percent increase or 5.5 percent when you skip gas and food.

We don’t agree either on how we got here or what to do about it.  Since no single bullet will correct for rising consumer prices, you can be sure we will hear political parties using perceived dangers of inflation ad nauseum as we get into the midterm election season.

We have too many hands in shaping prices for there to be any singular control, we are seeing power struggles in many arenas about solutions and no agreement even if we’re talking about short-term fixes or long-term goals. Even as President Joe Biden talks about steady, slow underlying economic growth, varying somewhat by month, all that Americans who vote see are higher prices for gas, car, groceries and manufactured goods.

That, of course, translates into voter frustration, usually with a smack against incumbent politicians – not that political opponents would be doing better in a world still beset by Covid, greed and international nationalism.

From all I read, we can expect high prices to spread. Anything The Fed does to stem inflation likely will mean slowdowns, anything the courts do to block government Covid mandates will continue the uncertainty driving prices up, anything corporations do to bring manufacturing home to the United States will result in price hikes.

So, the search is on for whom to blame.

A Split in Approach

Inside the White House, advisers to the president apparently are split about inflation strategies, reports The Washington Post.

“Biden’s push to blame some corporations for high prices has divided the White House’s allies, with liberal economists both inside and outside the administration split over whether monopoly power accounts for the spike in inflation facing the nation, The Post reported.

The Post’s unnamed sources said that senior officials at the Treasury Department have been unsettled by the White House’s attempts to blame large corporations for inflation, skeptical of that explanation for the recent rise in prices.

And then there are the voices saying that spending too much federal money for covid aid or social services is overheating the consumer market, driving up prices, though I am hard-pressed to explain how help with the rent boosts the cost of restaurant meals or travel.

The Post’s economic columnist Cathleen Rampell says, “This “corporate greed” narrative is nonsense. Corporations are always greedy. It’s their job to make a buck. They didn’t suddenly remember to become greedy in the past year. They’re charging higher prices, and booking higher profits, because that’s what happens when demand shoots up and supply is relatively constrained. As is the case today.”

So other than the general nod to Covid for upsetting the overall global economy, for breaking manufacturing supply and distribution chains and for continuing to liberally sprinkle uncertainty on what stores, schools, plants and hospitals will be working at full strength, even our leaders don’t agree on what economically ails us.

So, when monthly job reports emerge, as happened last week, that say 199,000 took new jobs and the unemployment rate dropped below 4 percent, we’re not sure whether that is good news or disappointing news, depending on what version of the story you heard. Nor are we sure what it means that some millions of jobholders have simply declined to return under new Covid rules to their old jobs.

Moreover, we insist on looking at all news about economics — and prices in particular – as a uniquely American problem, as if Europe and Asia are also not going through exactly the same cycles. This just in: The American voter is consumed with a selfish view of whether life is better or worse for one individual, not for the world, over one year or four or eight.

Big Picture v. Daily Costs

The economists looking at the big picture, meanwhile, may not know the cost of a quart of milk. In part, the drive by political progressives to look at data in a way that says price hikes from corporate profit desires is outpacing price hikes from Covid effects alone.

Someone’s got to make up lost profit from those lockdown months.

Factor in corporate mergers and consolidations and the number of businesses that simply went out of business along with heightened consumer demand to buy things, and you have an inflationary market.

There is nothing about supply chains or inflationary trends to explain why sellers of used cars and trucks suddenly are charging double previous prices. It’s what they think the marketplace will bear, and there are no rules to stop them.

Now Biden, prompted by the progressive case, says similar things about the price of meat, where four companies control 85 percent of the market, and other finished goods. The price of lumber, which went way up for a while, calmed down as ample supplies became available again.

The Politics, As Always

Apparently, multipleDemocratic pollsters have told senior White House officials that they needed to find a new approach as public frustration over price hikes grows widespread, which may help explain why Democrats see evil from corporate owners.

It’s a whole lot easier to find rhetorical villains than it is fix the problems.

Republicans always have Biden himself and tiny Democratic majorities in Congress to blame, even though little of what the government can do will affect marketplace inflation.

The Biden group could relax international tariffs on goods made in China, a policy that makes little overall sense but that has pushed prices up. But Treasury Secretary Janet Yellin says tariff changes will not stop inflation.

For the Fed to raise borrowing rates may stop inflation, but will also slow down the aspects of the economy that the very same people want to grow. No one wants an economy in recession, either, which always leads to layoffs and higher mortgage rates.

Introducing new competition to markets can help, but how effective have any government programs been in rekindling manufacturing over the last 25 or 30 years?

One source of new competition is businesses that are deciding to return jobs from overseas, a trend called “on-shoring” or even “near-shoring” to northern Mexico. The New York Times profiled an American clothing manufacturer, American Knitting, describing a nascent return to domestic jobs. But that effort will bring about goods that reflect American labor costs, good for workers, but looking a whole lot like higher prices to consumers.

American car manufacturers and computer chip makers like Micron Technology are doing the same, and we can expect fewer supply chain issues, but higher prices.

Maybe a more intelligent approach here would be to acknowledge that America will have to pay higher prices unless it changes its buying habits.

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Will We Spurn This Science

Terry H. Schwadron

Jan. 13, 2022

The sarcastic joke used to be that we could land a rocket ship on the moon and still not be able to cure the common cold.

The updated version, is that we can launch an telescope with amazing precision 600,000 above Earth, even as U.S. Covid case numbers topping 1.5 million in a day, along with spiraling hospitalizations and deaths.  We talk about Living with Covid without all committing to doing the new habits required to do so, and with this Omicron virus still peaking, we all know people who’ve gotten at least a little sick.

Extend the lens a little wider and you see climate change effects worsening as national governments continue to deny they have arrived, that quack alternatives are being rated by a strong minority and several state governments as just as effective as vaccines, and that we can’t tell for sure that introducing new 5G technology isn’t interfering with aircraft landings.

What’s happening at the same time is a remarkable distrust for Science and Scientists just as Science is bringing us fantastic new possibilities.

Prime among them this week was the news that doctors had successfully implanted a fully grown, genetically altered and cloned pig heart to keep a 57-year-old man alive in Maryland, an achievement immediately heralded as an astounding achievement. Of course, like so many other scientific and medical advances, is not sudden, but rather the outcome of years of research and development in everything from altering the pigs to making the rejection-free.

For families who only see death ahead for family members stranded on lists for livers, hearts, kidneys and other organs, here was a tangible rope of hope happening in a hospital where the staff was likely dangerously depleted by Covid before it becomes the new common cold.

A Remarkable Achievement

The headline was because this was a first such heart implant, naturally. But the news was that a groundbreaking procedure could offer hope to hundreds of thousands of patients with failing organs.

According to the United Network for Organ Sharing, a nonprofit that coordinates the nation’s organ procurement efforts, last year, 41,354 Americans received a transplanted organ, more than half being kidneys. Yet we have a shortage of organs from other humans, dead or alive.  The Times reported that a dozen patients on transplant lists die waiting each day.

This particular surgery was officially experimental and required specific approval from the Federal Drug Administration. It involved a pig from a private biomed company that introduced 10 genetic modifications that either overrode human rejection or made the pig’s heart bigger and immunologically ready for this use.

The patient remained attached to a heart-lung machine when it was over, but the new porcine heart was doing most of the work, doctors said. There was no question that the patient would have died without it.

So, we’ve arrived again at xenotransplantation, the process of grafting or transplanting organs or tissues from animals to humans. While some efforts to use the blood and skin of animals go back hundreds of years, organ transplants are more recent, advanced mightily by development of the arts of gene splicing, cell cloning and pharmaceuticals to keep rejection down.

The pigs are seen as good candidates for genetic work to grow organs because they grow to adult size in six months and for years already have successfully provide heart valves, diabetes-free pancreas cells and skin grafts.

What Could Go Wrong?

The news sounded pretty great.

So, I’m waiting for the anti-Science crowd to be heard about why we shouldn’t proceed, starting with a denial that the operation ever took place. Rather, it was tourists who stopped by the hospital and a dying patient suddenly revived after an exciting speech from Donald Trump.

Maybe relying on pig organs will prompt a lawsuit over religious objections either involving dietary laws or altering humans’ natural failings. After all, if God wants us to die, we should, without whimper or protest.

Maybe the anti-vax crowd will be in the streets to stop whoever is the Dr. Anthony Fauci of transplants to keep on this side of gain-of-function research needed to alter pig immunology. Or the governors of Florida and Texas may move to take up individual pig rights and bar localities where such surgery is permitted.

Maybe the pro-life view will be extended to pigs.

Meanwhile, in 10 minutes, the other side will be complaining that we are not developing pig brains fast enough for required replacements of various forms of mental defectiveness, including whether anyone with a pig-installed brain can vote by mail without special identification papers.

Or demand that “heart” implants now also include the best attributes of heart and soul, like passion and caring for others. How soon might we start hearing about a government mandate that lots of our leaders get a new heart or about an investigation of manipulations of names on the organ-wait list to maneuver their way to the top?

We should celebrate our scientific advances and, well, learn to live with them. Mocking Science, like burning books, never leads to a good conclusion,

Along the way, we might find a cure for the common cold, like taking personal precautions instead of mocking them too.

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