Category: Commentary

President Biden has been on a tear these past two weeks, daily signing executive orders to a running total of twenty-five. What are these things, and what do they mean? As the name implies, an Executive Order (or Executive Action, the name sometimes changes) is just an order issued by the President as Chief Executive. It has the force of law within the Executive branch, meaning when I worked for the federal government, I could have been fired, fined, or jailed for violating one. But it is not a law, which requires the passage of Congress and signature of the President (as Bill from Schoolhouse Rock taught us):

Executive orders go right back to President Washington, and recent Presidents aren’t even in top ten when it comes to numbers: Teddy Roosevelt cranked out over one thousand, as did Woodrow Wilson and Calvin Coolidge; FDR spouted over three thousand, and set the record for average per year, too! Recent Presidents (starting with Clinton) started returning to executive orders as it became increasingly impossible to get any agreement on new laws in the Congress. Like a law, an executive order can be reviewed by the courts and deemed illegal or unconstitutional. When an executive order conflicts with a law, the law wins. Finally, an executive order can be rescinded by the President or his successor at will.

Some of the best and worst policies in US history came about as executive orders. FDR used EOs for many of his New Deal policies, but he also imprisoned Japanese Americans with one. Lincoln’s Emancipation Proclamation was an executive order, but so was his policy to deny habeas corpus in Maryland. Truman desegregated the US military with one, but he tried–and failed–to seize the nation’s steel mills with one, too! Woodrow Wilson found time to issue an executive order covering the use of torches for hunting in the Panama Canal Zone, and Herbert Hoover went all meta by issuing an executive order on the issuance of (wait for it) executive orders.

So are these EOs, as they’re called, important? Maybe, maybe not. Consider some examples. The President can use an EO to adjust how the federal government enforces a law. Take immigration. According to law, people inside the United States illegally are to be deported after due process. Each President can issue an EO indicating what emphasis should be placed on which groups: for example, President Obama directed (via EO) deportation be focused on violent criminals, in effect (since there are only so many immigration officers and courts) allowing many people eligible for deportation to stay in the United States. This was a very significant executive order, with very real effects on average people.

Executive orders can also be symbolic. President Trump’s “Muslim ban” (a pejorative I’ll use just as shorthand) was an Executive Order reviewed by the Supreme Court and found constitutional, primarily because the actual EO highlighted the fact that all the countries included either failed to provide–or did not have–data on their citizens for the US to consider for visa purposes. President Biden faced a dilemma: if he simply rescinded it, he would be permitting visa applications which could not be verified. So his new EO rescinds the broad policy put forward by President Trump, but retains a review of its information sharing requirements, which will likely have the same effect. Visa applicants from the countries previously banned are still going to have to provide positive proof they are not suspect in any way–a thing very hard to do.

Executive orders may cause more confusion than execution. President Biden rescinded all of President Trump’s immigration-related EOs. Except no immigration is currently permitted due to the pandemic, so no one can come anyway. But his administration telegraphed the changes before the inauguration, so now thousands of asylum-seekers are headed to the border. That, and Mexico is not very happy with the new administration, so they changed their laws (partially) to prevent the US from returning non-Mexican families across the border. So now the CDC says no one can cross, the Mexican government says no one can cross back, and the border patrol has been told what not to do (family separations). Result: migrants are walking across the border and being quarantined then released in the United States to await further processing in already overwhelmed immigration courts. Tricky business, what?

At times it is unclear what effect an EO will have. President Biden enacted a mask wearing requirement for all forms of public transportation. So if you take a bus or train, or go an airport, you too have to wear a mask. Of course, most of these locations already had a Departmental, Agency, or local requirement for masks. But now the EO means that if a federal employee (say, a National Park Service Ranger) lets you go maskless, they can be fired. And that bus driver (not a federal employee) must not let you board without a mask. Do they refuse to move the bus? Call police? Throw you off? All this remains to be worked out. I trust most people will just wear masks, but there have been several incidents on airplanes, so who knows?

It is a shame that there is so little bipartisanship in Washington that Congress can’t pass laws, so Presidents rely on possibly ephemeral executive orders. It is worse in my opinion that the media does such a poor job of explaining what the orders do or don’t do, instead characterizing them by numbers or failing to note the complexities altogether. This has and will only lead to more public distrust, when the policy outcomes don’t match the rhetoric. President Trump had a number of executive orders on “buying American” and now President Biden has one, too. Did any smart media source point out that United States treaties have the force of US law, so commitments made therein trump these orders? Did you know that any federal procurement over $182,000 USD (a paltry sum to the federal government) must be open to bids from twenty US allies under the Government Procurement Act? But it sounds good, no?

Executive orders appear to be a policy option which will be around for the near future. They can sound grand and be meaningless, or sound harmless and be far-reaching. They are simply a tool, and with all tools, over-reliance is a problem. As we used to say in the Army, if your only tool is an M1A1 tank, every problem looks like a target.

What to believe about Covid vaccinations? Here’s some common sense (with authoritative links) to avoid senseless politicizing and help you make an informed decision.

— Was the development of the coronavirus vaccines rushed? If by rushed, do you mean they cut corners, then the answer is no. They did take a process that usually happens sequentially and ran it in parallel, which accounts for the unprecedented speed of completion. Vaccines are usually produced in small test batches, then tested for safety (side effects?). After a vaccine passes that test, another small batch is produced and tested for efficacy (does it work?) Then the results are sent to the federal government for review, and the government also reviews and approves the production process. In the case of the coronavirus vaccines, the full human trials were done simultaneously, and the government insured the pharmaceutical companies from liability. It also immediately reviewed the initial production process, approved and authorized full-scale production, and guaranteed to reimburse the companies by either buying the vaccine (if it worked) or paying their costs (if it failed). It was potentially an expensive proposition for the government, but a worthwhile bet nonetheless.

— Some of the vaccines (Pfizer & Moderna) use messenger RNA (mRNA). Is this an unproven technology? Health professionals have been working on mRNA vaccines for almost thirty years, doing clinical trials and injecting this technology into people, so the technology is not new. The problem has been that they hadn’t developed a single successful vaccine, as either other treatments looked more promising (for HIV/AIDS, for example) or the disease threat disappeared (as in MERS and SARS) before they could complete the vaccine development process. The exciting thing this time is it worked and in time! Why is that important? Up to this point, vaccines used either a live virus, a dead virus, or an attenuated virus. The common word: virus. One of the bugaboos of the anti-vaxxer movement was the (true-but-irrelevant) claim they were injecting the disease into you! With mRNA, there is no form of the virus injected into you. This could prove to be a promising new treatment for a variety of diseases.

— What about the claim an mRNA vaccine could affect my DNA? As soon as people hear RNA or DNA, they get concerned, as we all learned DNA is the “building block of life” and messing with it can be tragic. I heard a great explanation of why you shouldn’t worry from Natasha Loder, the health policy editor at The Economist, and it goes like this: the whole purpose of DNA is to create proteins that in turn make life possible (make blood cells, repair neurons, reproduce, everything). DNA does this by generating messenger RNA, little temporary messages that tell cells what proteins to make. So DNA is like a record album on your old phonograph, and mRNA is like the musical notes coming our of the speaker. The notes play and then they are gone. When your immune systems “hears” the notes from the mRNA, it “remembers the tune” and learns how to protect from the virus. Can the song you hear “change” the record playing it? Nope. An mRNA vaccine is also potentially a great response to virus mutation, since the mRNA in the vaccine can be more easily changed to deal with mutations.

—Why is the United States failing at its vaccination program? Define failing. Here’s the most recent data on vaccinations:

The US is currently in 5th place worldwide, and the only large country ahead of the US is the UK. Our vaccination rate is three times higher than the EU or Canada, and six times higher than China. The world leader is Israel, which has advantages in small population, small geographic size, and a national health system set up for imminent emergency (i.e. wartime) function. That, and they don’t count Palestinians in territory under Israeli control. Still lessons to be learned, for sure, but the numbers don’t lie.

The Biden administration has announced plans to give one-hundred million inoculations in its first one-hundred days. Since we achieved the ability to inoculate one million a day before the inauguration, we should easily meet and surpass this goal.

—Did the Trump administration have a vaccine plan or not? At one point, President-elect Biden said “There is no detailed plan that we’ve seen, anyway, as to how you get the vaccine out of a container, into an injection syringe, into somebody’s arm.” An unidentified senior Biden administration official said “There is nothing for us to rework. We are going to have to build everything from scratch.” In response, Dr. Anthony Fauci said “We’re certainly not starting from scratch, because there is activity going on in the distribution.” So the plan did exist, and involved the complex distribution of difficult-to-transport vaccines across the country to medical providers for injection. The task of putting needles in arms was left for the States and health professionals. Who would you prefer do it?

Why? First, the initial vaccines approved have these unique transport requirements; when Johnson & Johnson’s one-shot vaccine is soon approved, it can be easily shipped, making large-scale movement and storage possible. Second, no country is undertaking mass, indiscriminant inoculation. For example, the US CDC recommended sending the limited vaccines to healthcare workers and the elderly. Setting up even a hundred large inoculation sites would not have addressed this target population, which is all over the country and not easily moved to such sites. Medical staff can’t take time off to wait in line, the elderly aren’t mobile. So a slower start was inevitable, but remember, our overall numbers are still strong. Third, there is no federal health infrastructure to help with this problem: no doctors, no nurses, no lists of same. The federal government did help speed the vaccine, and is distributing it. They could have provided more resources to States and medical providers, but that would not have changed the results much. Why not?

— What are the factors slowing the vaccination program? First and foremost, the pandemic! Hospitals and staffs are overwhelmed just when we need them to conduct the vaccinations. State governments are experiencing the same problems they attribute to the federal government, as inspectors aren’t available, employees are remote, resources are strapped. If this was all on the federal response, we would expect to see almost all delivered vaccines to be injected by States. States are averaging using less than fifty percent of their received inoculations! Second, the combination of the difficult storage and transport requirements bouncing up against vaccine resistance. Even medical professionals are reporting between fifteen and fifty percent of their ranks refusing the vaccine, so only about sixteen percent of the initial target population has been vaccinated. Medical staffs include doctors, nurses and a large cadre of less-skilled professionals, many of whom are people of color. These latter groups are especially skeptical of government safety claims and were also affected by irresponsible pre-election claims about “Trump’s vaccine.” If someone says no, there isn’t always someone else eligible for that shot right away. At best, vaccinations are delayed; at worst, vaccines spoil. Third, there are no magic wands to increase production or distribution. As I explained before when discussing Covid testing, these processes are not ones you can ramp up easily using the Defense Production act. The pharmaceutical companies can’t outsource their controlled vaccine production to, oh, say, beer bottlers, and even if they could, would you want them to? The Biden administration has directed the mass production of a syringe which permits more Pfizer doses per syringe than the current one, but take note: Pfizer has agreed to provide the US a set number of doses, so they will send less vaccine if we are using these syringes!

The US state leading the vaccination charge? West Virginia. Yes, a state with lousy health care, poor infrastructure, and an older/sicker/widely dispersed population is succeeding. Why? They skipped participating in the big federal program, worked with local independent pharmacies/doctors/hospitals (whom they know), and used their National Guard (under State, not federal direction) to manage the process. Instead of whining and pointing the finger of blame, they are getting the job done. Their only complaint? They would like more vaccine, please.

There is a role for large federally-run vaccination sites as the number of vaccines and doses increases and the eligibility pool does too. It will be interesting to watch how the federal government runs this effort. Vaccinations are not rocket science, but they do require some training and some medical staff on hand; from where will they come? Stay tuned!

—Should you get a Covid vaccine? This of course is the sixty-four million dollar question. In general, yes. All the vaccines out there (even the Russian and Chinese ones) appear to be safe, although some (the Russian and Chinese ones) have limited efficacy (may not work so well). Even then, some immunity is better than nothing. The more vulnerable you are to serious illness or death from the coronavirus, the greater your need to get vaccinated. Of course consult your doctor, especially if you have a history of severe allergic reactions. We still don’t know whether the vaccine prevents you from being infectious (as opposed to being sick), so even once vaccinated you may still face requirements for masking, social distancing, and testing for public activities. Scientists are gathering data establishing protection from infectivity, so those precautions may be temporary for the inoculated.

Like everything else during this pandemic, getting inoculated is a personal call assessing risk versus gain. Take it seriously, get expert medical advice, and don’t judge others who decide otherwise.

In part one I tried to make people understand the difficulties inherent in the interaction between police and protesters as the latter suddenly changes from a protest to a mob to a riot. In part two I attempted to show that while nearly everyone agrees violence (and its incitement) is wrong, it’s hard to describe when the threshold is crossed. Historically, the United States government treats such violence as a crime, not a national security threat (for good reasons justified by the exceptions to the rule). In part three, I’ll cover the really difficult area: how we get back to normal!

“We, the people of the United States, in order to form a more perfect union, establish justice, insure (sic) domestic tranquility, provide for the common defense, promote the general welfare and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution of the United State of America.”

Preamble, US Constitution

Man, could we use some domestic tranquility now! I want to distinguish further two different approaches to the way forward: one centering on punishment, and the other focusing on mercy. For shorthand, the punishment approach I’ll call Reno after US Attorney General Janet Reno, for her decision to end the Waco hostage crisis, and the mercy approach I’ll call Lincoln, for the President’s views on how to deal with the former Confederates. I mean no disrespect to AG Reno, as the DOJ after action report supports her decision. It is not about being right, it’s about going forward and living together.

On November 3rd, 2020, over seventy-four million Americans voted to support a second term for President Donald Trump. Despite receiving the second most votes in American Presidential election history, he lost by seven million popular votes and seventy-four electoral votes. The challenges posed by counting vastly increased mail-in ballots led many to believe President Trump was “ahead” when night fell, but behind in the days that followed. This effect was predicted (called a “red mirage”). In reality, there is no “ahead” nor “behind” in an election; the counting is a process that has no result until it is completed. Our fixation on immediately knowing how the vote counting is proceeding (why? Who absolutely HAS to know who wins on election night?) birthed a myth of a stolen election, a myth which has failed to deploy a single significant piece of supporting evidence.

On January 6th, 2021, tens of thousands of Trump supporters attended a rally in support of this myth. They came in organized groups from all over the country: supported and transported as at every large Washington, DC event. They fervently believed their leader, who incited them to march to the Capitol, where he hoped their presence would intimidate the Vice President, Senators, and Representatives into not certifying Mr. Biden’s victory. Several thousand marchers did so. The protest and the rally march were entirely legal. Yes, they were misguided, but legal. Included in the larger group of protesters were smaller groups which openly planned to conduct violence and occupy the Capitol. This was never legal.

At the outer barriers of the Capitol, protesters overwhelmed police lines and surged forward toward the Capitol building, breaking the law as they broke the lines. While data is incomplete, it appears somewhere between three and five hundred violently fought their way into the Capitol and occupied it for several hours before being allowed to evacuate.

To summarize, tens of millions supported, tens of thousands rallied, thousands marched, and hundreds assaulted.

Take any large protest movement in US history, and you’ll find the same story. Abolition? Yes. Civil Rights? Yes. Prohibition and Repeal? Yes. Women’s Suffrage? Yes. Vietnam war? Yes. Black Lives Matter? Yes. The numbers and percentages vary, but the results remain the same. Any mass movement has protests, and protests beget mobs, and mobs riot and commit violence. And even peaceful movements have splinter associations or opportunists who agree with the ends but not the means, choosing violence as a necessary tool. Even the Capitol as a target is not unique, if you’re familiar with the 1968 riots or the 1954 Puerto Rican pro-independence assault.

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No, I’m not comparing the boneheads who smeared feces in the Capitol to the Mothers Against Police Brutality. My point? We have been through this before, and notwithstanding the talking heads trying to rile you up, we’ve been through worse. The treachery at the Capitol was certainly no worse than that of the civil war. The violence less than that of a single day in 1968. The planning less than several thwarted terrorist attacks. It was ugly and unconscionable, but not unprecedented.

One thing that was different was the President called for the rally and intended it to intimidate the electoral process. For that, he merits impeachment, conviction, and disqualification from future federal office (as I already opined).

But what of the movement, the rally goers, the marchers, and the rioters? Nothing has changed for them: they still cling to the myth. Where do we go from here? Braying influencers use the most extreme rhetoric: for treason, death; for insurrection, ten years. Justice demands punishment, but how much and to whom? The interest of domestic tranquility suggests something less harsh.

Here is where the Reno versus Lincoln debate arrives. I propose a Lincolnian approach:

For the millions who believe the election was stolen: they did nothing wrong. They were misled, but that is not a crime. They are no more liable than anyone who has said “Hands up, don’t shoot!” the last six years (no, it didn’t happen, according to some guy named Eric Holder). The incoming President should establish a bipartisan commission to investigate the results of the last two elections (myth-making goes both ways) and demonstrate how the outcomes came to be mistakenly characterized as illegitimate (2016) and a steal (2020). Will this convince everyone? No, but some percentage will look at the results and say: enough. And that’s worth another commission (and I HATE Washington commissions!).

For the tens of thousands attending the rally: nothing. Most knew no more beforehand than anyone else. But for those few speaking at the rally: public censure. Perhaps by the Congress, but certainly by all of us. When you are asked to whip up a crowd, you take responsibility for your remarks, and some of the speeches I have heard appear to be over the line. I don’t want the government prosecuting such speech, but we should all shun it: shame is a neglected part of our repertoire these days.

For those who marched to the Capitol: mostly nothing. This was permitted, and one would have to determine who knew about and overran the perimeters: a daunting task, but one worth attempting. If the authorities can figure it out, charge them with trespassing on federal property.

But for those hundreds who entered the Capitol building: charges of trespassing/unlawful entry/vandalism/theft and the like for every single one of them. And unless they can prove a claim of false identification (several already have), conviction and punishment.

For the subset who evidenced planning for violence, or committed any single act of violence (and there is ample video): prosecution to the full extent of the law for the specific offense. Not treason, not insurrection: felony assault, attempted murder, whatever. In Federal Court.

Now the pièce de résistance (oddly apt in this case), President Biden should offer a conditional pardon to anyone charged above (Lincoln & Johnson did the same). It should include as conditions: publicly accepting blame for the crimes; publicly admitting that the election was not stolen; publicly forswearing any further violence against the US government; and publicly proclaiming the Pledge of Allegiance. It should also be limited to the day of the riot, leaving those who planned for violence beforehand still at risk.

Do those things, and be welcomed back. Do them not, and accept justice.

We don’t need to exaggerate what happened. We do need to be specific about what was legal (a rally) and what was illegal (violence). I have said this from the beginning of the Trump administration: we must consciously avoid lowering the bar (for our behavior and norms), weakening our freedoms (Speech? Assembly?), diluting our system or compromising our laws (Insurrection? Treason? Really?). In response to our debaser-in-chief, so many have opted to debase themselves. This must stop now.

Finally, how to address the lingering discontent. President Trump didn’t cause this, he exploited it while exacerbating it. Much like we were told to treat the Black Lives Matter movement as a wake up call, I suggest we do the same with the nearly violent disquiet among the working classes. Many people seized on Trump as a candidate because they felt he was authentic, he heard them, he was looking out for them. They followed him on Twitter and watched Fox News or OAN because it was the only place they saw or heard anything like their own views. I guarantee that calling all of them white supremacists (remember: seventy-four million!) and banning them from publicly-available, privately-held media will not help the situation, especially when the terms of service being cited are regularly violated by others with impunity.

I don’t like the idea of the federal government regulating private media (FaceBook, Twitter and the like). But some means must be sought to ensure these private media services act justly and not stigmatize one side. If violence is the standard, apply it equally (not exceptions for those I like). If incitement is the standard, apply that equally. Or the federal government could simply remove these companies liability protection and let the courts work it out.

I do know this: the solution to ignorance is not stupidity, but education. The solution to bad speech is more speech, not banned speech. It is axiomatic in the therapeutic professions that “talking it out” works, while keeping it all bottled up doesn’t. Go full Reno: call them traitors, charge the with treason, fire them from jobs, hound them from social media. Sow the wind and reap the whirlwind.

Another idea: after the 2000 Florida election debacle, news media voluntarily agreed not to call state election results until all the polls were closed in said state. This was a responsible act, but not enough. I think now the media need to revisit the “Super Bowl” style coverage of election night: Given the possibilities of election challenges and voting irregularities, perhaps we don’t need the media to call elections at all. Perhaps coverage, even exit polls, without specific calls for some cooling off period of days.

President Biden intends to call for unity and comity: I say A-men. But it is easy to be nice to those we like, those with whom we agree. Understanding the other, being magnanimous with an opponent: that’s the salve to our nation’s wounds.

If you watch the news, read a paper, or just surf online, you’ll see people bandy about terms like “coup” or “insurrection” or “treason” or “rebellion”. Some have no idea what they’re talking about, while others have as much or more experience in these issues as I do (thirty-eight years, to be exact). I continue to disagree even with the latter group for one simple reason: while they make studious and serious cases for such language, their reasoning is driven by their emotions, rather than having their emotions prompted by their reasoning. Let me explain.

In these United States, we traditionally treat violence directed at any lawful authority (federal, state, local, tribal or territorial) as a criminal matter, NOT as a national security matter. Even after 9/11, we only unified disparate elements into a Department of Homeland Security to improve information sharing amongst the various border and air/sea port authorities and with non-federal authorities. The FBI retained investigative authority against federal crimes (less counterfeiting and threats to the President et al, which belong to the US Secret Service in DHS).

Why in the wake of the worst terror attack in US history did this remain the case? Because we place such value on individual liberty and freedom of speech that we chose NOT to infringe them even under threat of tremendous assault. You remain free to think the most vile, phobic, sexist, racist thoughts you can imagine. You can even gather together (really or virtually) and share those disgusting thoughts and comments with others. Up to the point you plan violence or take a specific act, you remain free. Even if your target was the US government.

A short digression, if I may. I worked the domestic security issue at DHS in 2010, when a certain Faisal Shahzad attempted to set off a car-bomb in Times Square. He was a naturalized US citizen born in Pakistan who was married, had children, owned a house, had a job and was completing a Master’s degree. He traveled to Pakistan once, where he had family. He was self-radicalized, although we later learned he had attended a bomb-making school while in Pakistan. After the 9/11 attacks, a friend heard him say “they had it coming.” That was it. Ten years later, the first truly obvious illegal thing he did was double park an SUV full of explosives in Time Square. This was the risk we accepted, even after 9/11.

We treated it as a crime, and we never turned the elaborate, powerful US Intelligence Community apparatus against the domestic threat. Why? US intelligence could no doubt gather the information to determine all kinds of nefarious intentions domestically. But it would also gather reams of information that represented nothing more than citizens exercising their constitutional rights. The cost to liberty was simply too high a price to pay for effectiveness against this threat.

“Yes, yes,” I hear you think, “but this Capitol Hill assault was a direct attack on our system of government!” and you are correct. But what was the civil war, if not such an attack? And no southerners were ever executed for treason, and its leaders weren’t even tried for it. Lincoln and later Johnson pardoned most accused of these and related crimes, despite the fact they had taken up arms and violated oaths. Even northerners who sided with the Confederacy generally ended up with leniency.

If we invoke national security language like coup or legal terms like treason or insurrection we change the rules of the game. The former calls into play the Intelligence Community or the US military, and no sane American should want that: I can tell you that many intelligence and military professionals would quit rather than comply. The latter lower the bar to crimes which should remain rarely–if ever–charged. The Insurrection act is triggered solely by the President in cases when “unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States” and allows him to deploy the military (Posse Comitatus notwithstanding!) to handle it. Yikes! People want to use these terms because they are upset and want to make a statement, but this is bad policy. Why would anyone want to set a new, lower standard for such crimes, knowing that someday it will be used against others?

One final story about domestic security to pull it all together. There are groups in the United States who disavow the legitimacy of the federal government: Sovereign Citizens comes to mind. They don’t pay federal taxes, they resist even traffic citations, they seize government buildings and assault government officers. All the time. All over the country. Most of the members of this movement are harmless followers who don’t follow through, but there are violent activist members, too. If there ever was a group eligible for charging under some of these terms, they are it. These are not right-wing nuts or left-wing nuts, these people are just plain nuts. Yet we let them go, only charging them with tax evasion or fining them or imprisoning them if they conduct a violent attack. Why?

Back in 1993, a man named David Koresh led a cult-like commune called the Branch Davidians in Waco, Texas. His outlandish behavior and alleged abuse of children brought him to the attention of Texas authorities who could not substantiate any charges. Eventually, Texas got the US Bureau of Alcohol Tobacco and Firearms (USBATF) involved due to suspicions about weapons at the Davidian compound. When USBATF raided it, a firefight ensued and four federal agents (and six Davidians) were killed. This brought the FBI into the case, as the death of federal agents is a federal crime. The FBI under Attorney General Janet Reno laid siege to the compound for fifty-one days, then, attempted to force them out using tear gas and a US Army combat engineer vehicle. The compound caught fire (probably set by the Davidians), and seventy-nine Davidians (including twenty-one children) died.

But that was not the end of the story. You see, a young man named Timothy McVeigh was a protester outside the siege. He had no interest in the Davidians or their cult, but he was pro-gun rights, and the ensuing violence left him a changed man bent on revenge. Two years later, he got his vengeance by blowing up the Alfred P. Murrah Federal building in Oklahoma City on the anniversary of the Waco fire.

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Waco wasn’t handled in a routine criminal way. The US government created martyrs at Waco, and reaped the result. It is important to note that the rightness or wrongness of what the government did was irrelevant.

The question before each of us is simple: do you want righteous vengeance or domestic tranquility? You can not have both.

Trying to get my head around the recent events at the Capitol, and fend off some poorly-thought out commentary from the national media, I kept circling around three related issues: how we view violent groups of Americans, how law enforcement and the national security apparatus approaches them, and how the media plays a role. I have labelled these three topics as domestic violence, domestic security, and domestic tranquility. In addressing all three, I will note similarities and differences in each case, but I do so to highlight the larger phenomena: please spare me comments like “you can’t compare the brave BLM members who were brutalized by police to the white supremacists in the Capitol” or the reverse. If you don’t understand how to compare such things without making a value judgment about the rightness or wrongness of the causes, stop reading now and retreat to the safety of your Twitter/Parler feed.

The phrase domestic violence is traditionally used to refer to violence within a couple or family. I find it appropriate here because the larger problem is an American cultural one: our American family is at war with itself. Much like a family, we all take sides and vilify the other. Much like a family, there is a little truth and a lot of hyperbole on both sides. Your large rally with a small riot at the end is ‘the inevitable and understandable cry against injustice’ while mine is ‘racist hate-filled mobs bent on white supremacy.’ And vice versa. Both sides may be correct, and neither may be.

Protests and mobs and riots are peculiar things, made up of many people with disparate intentions. That they act coherently at all is something odd in itself. If you have ever been among a group of fans, chanting and screaming for your team and against the other side (or the refs, or God), you had a small taste of the phenomenon. A protest is simply a group expressing a point of view. When the protest becomes agitated, it starts to turn into a mob. At some point, someone moves from agitation to an act of violence, and the mob becomes a riot, where otherwise reasonable people do violent, unreasonable things. Once the riot has begun, it must burn itself out: either through time, or at the point of police force. Ever ask why rioters burn down their own neighborhood? Because once the riot begins, reason goes out the window. Police force is not always the correct response: at a certain point, rioters stop fearing for their own safety and even deadly force does not deter them.

Sometimes a large police presence deters the mob, other times it incites. Sometimes an arrest halts the violence, sometimes it worsens it. This is a tricky matter, made more so by the fact every protest/mob/riot is different.

But one thing we all, as Americans, can agree on is that until violence happens, the rioters-to-be are simply an angry mob (or even just protesters) practicing their constitutional right to assemble and seek redress of grievances. Perhaps the problem is becoming clearer now. No one can tell when or if the line of violence will be crossed, and yet the police must be prepared in every case, and that preparation may be the spark. Tricky indeed. To borrow a line from A Few Good Men,: “I suggest you pick up a weapon, and stand a post.”

But let’s not leave it that simple. Remember, the mob and the riot have their own will. Imagine yourself on the police line: When they turn off the approved protest route, are they heading to attack a target, or just lost? The guy carrying a fire extinguisher: is he putting out little blazes that break out, or will he hit me in the noggin with it? Somebody is spraying a mist at me: is it acid (a deadly attack) or urine (just disgusting). There’s a bag flying over my head: a Molotov cocktail or loose stool? (In case you’re wondering, these are all real examples.) In all these cases, people have to make split second decisions between good and bad intentions, legal and illegal acts, violent or just gross behavior. It goes both ways: the face hidden behind the visor with a badge–good cop or racist waiting to crash in my skull with a baton? What do I do when the police line says stop but the people behind me push forward? Why can’t we get a little closer to make ourselves heard? Why is my voice stifled?

For opinion-makers, it’s all so clear-cut tweeting out your outrage and sharing your disturbing allegations, but at the point of attack, it is very murky. Hucksters on all sides inflame the true-believers and repeat the cycle. And our family rift goes on.

Other than deploring violence, there is another area where almost everyone agrees: that those who specifically incite violence deserve more serious sanction. But even there the consensus is illusory. What is incitement to violence? The Supreme Court has held that the act or language must be imminent and likely to cause violence. Thus no one can use something I say today as justification a year from now for a violent act and blame me. Likewise, if I post to no one in particular “the Governor has to go,” my statement is unlikely to cause any specific act (even if by some chance someone did attack a Governor). And the words themselves are tricky; which of the following is an incitement:

• “freedom is never voluntarily given by the oppressor, it must be demanded by the oppressed”
• “justice that law gives is a punishment.”
• “where justice is denied, . . . neither persons nor property will be safe.”
• “It’s only a matter of time, justice is coming.”

The first is the Rev. Dr. Martin Luther King, Jr. The second is Mahatma Gandhi, the third is Frederick Douglas, and the last is Jacob Chansley, aka the QAnon Shaman, in a note he left for Vice President Pence.

Clear as mud. I invited you into this morass to show that when one takes off their ideological blinders, it is much more difficult to pontificate. We are making snap judgments (“I know that look on his face” was a famous one about a teenager that cost several media outlets millions of dollars) about people we don’t know, spurred on by sources we don’t always check for bias.

And it’s not innocent, for reasons I’ll explain in parts two and three.

Meanwhile, mom and dad are at each other’s throats.

I was against the initial attempt by the House of Representatives to impeach President Trump. I was against it because it was a convenient excuse (a “Pleiku” as I explained). The Democratic Party wanted to impeach the President from the day of his election, and finally settled upon an excuse to do so. It was an ill-fated attempt (one Speaker Pelosi even initially opposed) and one that came to the impotent end it merited.

What is happening today is different. First, let’s remove the emotional aspects of this case. This impeachment is not about removing the President from office. It will barely affect his term. It is also not about the President’s claimed lapse into unreality. He has always believed what he wants, nothing has changed there. Nor is it about his finger on the nuclear trigger. Some may be excused for not knowing this, but Speaker Pelosi does, so she bears responsibility for the hysteria she engendered: there is an entire system involved in nuclear release. It is not a button to be pushed. There are messages, codes, things that must be ascertained and confirmed. The system is designed to allow the President to respond in the case of a surprise nuclear attack. In the absence of indications of inbound missiles, it does not allow the President to launch, willy-nilly.

So what is this about? Since his surprise (to him) election loss, President Trump has been in engaging in a slow-motion autogolpe (tip of the hat to Ken Copeland for reminding me of the word!), which is a Latin American term for when the leader attempts to retain power through non-legal means. The President began his opposition to the election results legally, but after losing lawsuit after lawsuit, he began seeking and supporting other means.

What happened at the Capitol was the culmination of those efforts. First, a legally permissible rally on the Mall followed by march to the Capitol building, which quickly descended into a riot and occupation. I have watched more video of the event that I care to admit, and it resembles every riot I have ever watched. Yes, there are people making specific threats against specific people, but they are screaming out as groups run and wander all about. In the end, all were allowed to leave, and they did so. Some coup. Law enforcement should treat this as the dangerous riot it was, nothing more but nothing less.

But this was no normal Congressional day. The President called for the rally, and spoke at the rally, and incited the rally members toward the Capitol to intimidate the only activity underway there: the counting and certifying of the electoral college results, finalizing the victory of Joe Biden. Did he specifically call for violence? No, but that is irrelevant. He organized the rally, fired up the rally goers, and sought to pressure the electoral certification. While there was very little chance of this scheme working in any real sense, the very act itself was an affront to the notions of the peaceful transfer of power all Americans should hold dear.

This President has routinely broken norms, and rarely if ever acknowledges any limits that should restrict his behavior. But there are norms and then there are rules, and he broke both. For the latter, he should be charged with impeachment by the House of Representatives and found guilty by the Senate. Most importantly, he should be banned from further federal public office, not only making an example of him but also removing the danger of another Trump candidacy. Perhaps the Republican Party can seize the opportunity to rediscover its moral bearings.

One final point: I still strongly oppose invoking the 25th Amendment. That law was introduced to cover the eventuality of an incapacitated President, not the removal of one who has behaved poorly or even illegally. The former is solved by an election; the latter is reserved for impeachment. The discussion of the 25th Amendment is one that should only be conducted in private among the principals involved (the Vice President, the Cabinet) to compare notes about disability, not bandied about by the Speaker of the House. As I have said before: we must avoid setting new, ill-advised precedents in response to the Trump presidency. Mark my words: having just elected a seventy-eight year old man to the presidency, we’ll hear more about invoking the 25th Amendment in the next four years!

While nothing is final just yet, three things are increasingly clear: Joe Biden is the President-elect, Mitch McConnell remains Senate Majority Leader with a tiny majority, and Speaker Pelosi lost some Democratic seats in the House. In no particular order, some analytic points about the whole enchilada:

Joe Biden received over seventy-four million votes, the largest number of votes in the history of the United States. This is most amazing, especially considering that in two previous Presidential runs, he never got past “*%” (that is, negligible) support. His support was strongest among non-white voters (especially black women), young and/or first-time voters, the irreligious and voters not employed full time. According to the New York Times exit polls, two-thirds of those voting for Mr. Biden said they were voting primarily “against the other candidate.”

President Trump received over seventy million votes, or the second-highest number in the history of the United States, eclipsing even winning candidate Obama in 2008. Trump won both white men and white women voters (while losing some ground) but registered gains with blacks, Latinos, and LGBT voters (% increase over 2016). Whether you loved or hated him, it’s fair to say he had the worst four years of media coverage in modern American presidential history (deserved or not), and somehow gained over seven million votes!

Mr. Biden has called repeatedly for reconciliation and stated bluntly he will work as hard for those who voted against him as for those who voted for him. These are exactly the right words for our times. The country is deeply divided, and until we stop referring to one another as enemies, Nazis, morons, etc. we cannot move forward. With President Trump out of the White House, the “but Trump” excuse for rudeness or vulgarity has expired. President Biden will have his hands full restoring dignified disagreement.

The exasperated foreign coverage of the election was amusing. Yes, there are many more efficient ways (to have a Presidential decision) than holding fifty state elections. But these are, and will remain, the UNITED STATES of America. The Soviets held very fast, very efficient elections: it was not an improvement. Those Americans calling for a more centralized, national vote have either (1) never worked in Washington, or (2) forgotten their civics lessons. The system is working well, thank you very much, and we’ll keep it. President Trump’s claims notwithstanding, we only started “calling” elections on election night in the 1960’s with the advent of television and polling. There is no reason to consider systemic change because it takes a few days to finish vote counting, or to conduct a recount.

One bright spot was the dog that didn’t bark. Thus far, there has been no government commentary about possible foreign activities to affect the actual voting. If that holds true, it would appear that the United States Cyber Command, Department of Homeland Security, and the Intelligence Community accomplished the mission.

For the second time in as many Presidential elections, pollsters made fools of themselves. Chagrined after their 2016 fiasco, which fostered some of the initial paranoia about President Trump–since after all, he couldn’t have won the election fairly based on what the polls predicted–the pollsters believed the 2018 mid-term results proved they had adjusted and were once again accurate. What they forgot was President Trump was only figuratively on that ballot, and the massive 2020 blue wave the pollsters imagined only demonstrated they were once again looking through the wrong end of the telescope. Citizens of all stripes should remember that polling is roughly akin to fortune telling: you see mostly what you want to see, and that’s not necessarily what will be.

On the other hand, massive kudos to the prognosticators who looked at the demography and changing State voting rules and identified where the “red mirage/blue shift” would happen. In case you missed it, this was the concept that President Trump would hold an advantage in some states at the end of election day, but as the counting went on, that edge would narrow and disappear. To those claiming the constant erosion of support for President Trump in the final state election tallies is evidence of fraud: sorry, that’s not the case. States who counted absentee ballots late demonstrated the effect of greater Democratic Party representation in those votes, that is all.

Whither Progressivism? I still have friends who say this election was only close because the Democrats ran a moderate, and the result would have been a blue wave with candidates Sanders or Warren. The notion of either of them capturing Pennsylvania or Arizona, let alone Georgia? I’ll leave the last word to Representative Abigail Spanberger (D-VA), a moderate Democrat and former colleague of mine who oh-so-narrowly won re-election. Leaks from the House Democratic conference call on Thursday had her screaming at Speaker Pelosi and others, “We need to not ever use the word ‘socialist’ or ‘socialism’ ever again. . . . We lost good members because of that. If we are classifying Tuesday as a success . . . we will get f—ing torn apart in 2022.” The House Democratic majority may be in the single digits when all the races are decided. And Progressives should avoid looking at State results, where the GOP gained control of several states just prior to redistricting.

This year, as in several past elections, pundits claimed that the Republican Party was doomed because demography is destiny. That is, younger voters skew liberal and Democratic, so they will stay that way in perpetuity. Or minority voters do, and the Unites States will shortly be a non-white majority electorate. So Democrats win. ((Brief aside: population estimates for China all the way through the 1970’s showed accelerating growth. Demographers joked that the modal person on the planet was an eighteen year-old Chinese female, and nothing reproduces itself like an eighteen year-old Chinese female. Demography is destiny. Except the Chinese Communist Party had other ideas, and the will to enforce a draconian one-child policy. They were so successful they halted Chinese population growth, because political demography is not destiny, it’s a variable. People change.)) Young people want free stuff and fewer restrictions. They grow up and get jobs and hate the high taxes. They buy a house and resent the loud music from the bonger next door. Minority groups refuse to act like monoliths, because they are comprised of real people, not stereotypes: for example, Latinos overwhelmingly do not identify as “people of color.” While it is undeniably true the Democrats capture the most minority votes, the GOP has gained an increasing share of the black and Hispanic vote in the last several Presidential elections. Both parties will continue to evolve and compete for all voters. . . for that is what they do.

The Media? Where to start? Major media organizations decided that President Trump was a unique threat to the American experiment and therefor adopted the stance of active resistance to his administration. Will they reclaim any semblance of nonpartisan coverage, let alone objectivity? Unlikely. President Trump was a major boon for the bottom line of these media, and that is at an end with the end of his Presidency. Where do they go for eyeballs, now? Can they possibly resist covering former President Trump?

What about President Trump? While it is possible he’ll just walk away from politics, it is very unlikely. Late in the election cycle, former President Obama broke with tradition and campaigned heavily against President Trump; former President Trump won’t even consider staying above the fray. Trump will resume his role as Tweeter-in-Chief, grabbing headlines with outrageous comments and over-sized rallies. Needless to say, any sputtering of the economy or increase in coronavirus cases will yield a Trumpian tweet-storm of ridicule. Nothing would more salve his ego then attempting to oust President Biden, so he’ll remain in the mix.

Trumpism as a movement? It’s future depends on what you think it is. If you view Trumpism as a collection of racist, misogynist, ignorant and hateful ideas, then Trumpism will recede back onto the fringes of the American polity. But Trump’s view of China as a problem, not a partner? Already mainstream in foreign and economic policy circles in DC. President Biden will have nothing good to say about President Putin, but he’ll be hard-pressed to develop a more oppositional Russia policy. The Wall is over, but support for immigration is flagging, and both parties admit immigration reform is essential, or another wave of child refugees is likely. Protecting the working class from the ravages of globalization is now a rare area of bipartisan agreement. Oftentimes, Trump’s extreme words belied mainstream thoughts. If he were at all introspective, he might realize how easily he could have won re-election with a little moderation.

So we’re headed for a period of Divided Government, which has gotten a bad reputation of late. The “Not My President//the other side is Evil” stuff really got started after Bush v. Gore in 2000 and became steadily worse. By the end of the Obama presidency it deteriorated into the Merrick Garland Supreme Court debacle, a preview of most of the Trump presidency as nothing useful could pass both Houses of Congress and be signed by the President. Let me counter all that by stating that divided government is something America traditionally has a genius for, and we should welcome the chance to re-awaken the spirit. Our worst policies happen when one party controls both the executive and legislative branches, as they inevitably overreach. A willingness to compromise among the three branches has previously and can again result in laws and policies that are supported by the vast majority of Americans. Not accepted under force of law, not resented but accommodated, but supported as the best for all.

Finally, the closeness of the election should put to bed some of the more extreme and unwise ideas: dumping the electoral college, conjuring up new states, creating a national election, packing the Supreme Court. The system worked, people: leave it alone. In the end, the Electoral College will reflect the popular vote, and will exaggerate (a positive thing) the size of Mr Biden’s victory. Adding states fixes nothing, nor does adding legislators! Could you imagine the chaos if we were amidst a national recount right now? And the Supreme Court has nine legitimate justices, quite capable of doing the job assigned by the Constitution. There is no constitutional provision they have to be liberal, they just have to be confirmed.^* The urge to change the system every time one is unhappy with a candidate, a party, or a policy is immature. As The Beatles put it, “You say you’d change the constitution, welll-llll, you know, we all want to change your head.”

We’re not out of the woods yet. President Trump could still be truculent in the months left in his administration, and his supporters could begin a “lost cause” mythology. Supporters of President Biden must resist the overwhelming urge to use the power of government to persecute former officials of the Trump administration: that is the stuff of banana republics, not our United States. All told, I’m optimistic the country can regain some normalcy and make divided government work again.

* To those who continue to claim the denial of Merrick Garland somehow invalidates the nomination of Justices Gorsuch or Barrett or both, let me put this argument to bed. Yes, it was completely hypocritical of Majority Leader McConnell to claim he was upholding some standard in denying Mr. Garland a vote. But, there would have been no difference in the Supreme Court. McConnell should have simply held the hearing, held the vote, and failed to confirm Mr. Gorsuch. There was ample historical precedent for this, including most recently Mr. Bork's nomination. If he had chosen this path, we would have ended up with the same court as today, but without this silly argument about non-existent precedent.