Friday, March 31, 2023

New legal woes for GOP frontrunners

It turned out that Thursday, March 30, was the day. Donald Trump earned yet another footnote in the history books as the first former president to ever be indicted.

A grand jury working for Manhattan DA Alvin Briggs returned an indictment that is still currently under seal. As I wrote last week, there is a lot of speculation about what crimes Briggs has linked The Former Guy to, but we don’t yet know exactly what the grand jury has seen or what crimes they believe the former president has committed.

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We do have some information and we can make some inferences based on previous cases involving Trump’s associates. Most interesting, we know that the indictment contains more than 30 counts per a CNN report. That seems to be far more than most analysts expected and would likely indicate that the charges will extend beyond the hush money payment to Stormy Daniels and campaign finance violations.

Other possible charges include falsifying business records, which is a class 3 felony carrying a sentence of one to four years in jail. The rub is that this charge would require that prosecutors prove intent to defraud. There is also speculation that other counts may include charges related to other hush money payments, fraud, and/or state tax crimes.

Since I wrote the original piece, there has been some new information on the statute of limitations. On the Advisory Opinions podcast, David French and Sarah Isgur point out that there are possible exceptions to the statute of limitations. Some of these, such as the defendant leaving the state, have precedents in the legal system. Others, such as not being allowed to indict a sitting president, are unprecedented but legally sound.

In any case, Trump’s lawyers say that he will turn himself in next week. Some reports say this will take place on Tuesday, which would mark two weeks from Trump’s original claim. It isn’t clear if the perp walk and mug shot will be made public, but I’d wager on pictures being leaked. I also would not be surprised if the mug shot is not added to Trump’s NFT trading card offerings.

The indictment is a wild card in the 2024 presidential race. The charges, which may not be adjudicated before the primaries, may inspire some Republican voters to dump Trump while others may vote for him as a show of support. The same is true of charges for other pending investigations, which would likely be more serious.

For now, the bottom line is that we don’t know much more about the charges against Donald Trump than we did two weeks ago. We won’t know until the indictment is either unsealed or leaked. Until then, anyone who says that Trump is either unquestionably guilty or innocent of the charges is just showing that they can’t be trusted. It’s really tough to know the truth about his guilt when we don’t even know the charges.

While Trump’s legal woes were the most serious, he wasn’t the only Republican getting bad news from the justice system. Florida Gov. Ron DeSantis’s bad news came in the form of a civil matter rather than criminal charges, but the news may be a blow to his presidential hopes.

On Wednesday night, news broke that Disney had quietly stripped most of the power from the Reedy Creek Improvement District Board (now called the Central Florida Tourism Oversight District) before the DeSantis Administration took away the corporation’s self-governing ability. DeSantis and his newly handpicked board members seemed floored by the revelation.

The Orlando Sentinel reported that the old board approved an agreement containing a “declaration of restrictive covenants” on February 8, one day before the Florida House approved a bill transforming the RCID. DeSantis replaced the Disney-picked board members with his own loyalists on February 27.

The agreement, which is available on the Sentinel site and is stamped as being recorded by the clerk of court on February 8, contains a litany of restrictions on the board’s authority. Among other things, the board is prohibited from using Disney’s name and Disney is essentially given veto power over most of the board’s decisions.

“This essentially makes Disney the government,” board member Ron Peri told the Sentinel. “This board loses, for practical purposes, the majority of its ability to do anything beyond maintain the roads and maintain basic infrastructure.”

In one clause that has set the internet aflame, the term of the agreement is said to be “effective in perpetuity… however that if the perpetual term of this Declaration is deemed to violate the ‘Rule Against Perpetuities,’ or any similar law or rule, this Declaration shall continue in effect for twenty-one (21) years after the death of the last survivor of the descendants of King Charles III, King of England, living as of the date of this Declaration.”

After a little research, this clause seems less important than the attention given to it would imply. The Rule Against Perpetuities is a complex legal doctrine that I won’t delve into (although you can find a good discussion of it here) since it is a Plan B. Disney’s real goal is to have the agreement last in perpetuity.

The real focus should be on the transfer of authority from the board to Disney. The legal arguments that I’ve seen so far have had little depth on either side. The discussions have basically consisted of the two sides shouting, “They can’t do that!” and “They just did!”

I’ve not seen much depth and even less objective discussion of the Florida statutes that would be relevant to resolve the dispute. Suffice it to say that I haven’t seen anyone offer a compelling legal argument that Disney’s actions, which were carried out in a vote at a public board meeting and posted on the board’s website, were unlawful.

Some Twitter users suggested that Disney intended the agreement more for show than to score a legal victory against DeSantis. I disagree. I think that Disney has every intention of winning the legal battle. At the very least, the company will draw out any DeSantis win through years of court battles.

Any legal wrangling may also open up the question of whether stripping Disney of its status was constitutional to begin with. I, along with many other observers, was surprised when Disney did not fight back on First Amendment grounds. There is Supreme Court precedent that the government cannot punish companies for their speech by removing special privileges.

And there is strong evidence that DeSantis picked the fight with Disney because the company criticized the inaptly nicknamed “Don’t Say Gay” law. Prior to their break over that bill, DeSantis had given Disney carveouts in his social media regulation, a loophole he has since closed. Afterward, the governor said that Disney had “lost [its] way” and that he would appoint board members who “would like to see the type of entertainment that all families can appreciate."

All that sounds very much like the government punishing a private company for its content decisions and taking actions to dictate that the company’s speech goes in a direction that the government finds acceptable. Those facts don’t sound like a close call as a First Amendment question.

In the end, however, it makes sense for Disney not to launch a costly frontal assault if they thought they could win the war with a special operations commando raid. I’ve said many times that Republicans tend to prefer politicians who fight over those who win. Looking back to John Boehner’s fiscal victories, we can even see that winning without fighting can be a cardinal sin to Republicans. For corporations like Disney, however, winning while minimizing confrontation is a win-win.

The entire brouhaha makes DeSantis look bad after claiming victory months ago. Now, after a heavyhanded and likely unconstitutional attack on a private company, the controversy throws his competence into question after the relevant agreement was posted on the RCID website for more than a month and only now seems to have been recently discovered by the new board members.

In a second legal misstep, DeSantis has said in a tweet that Florida “assist in any extradition request” for Donald Trump. There is also precedent saying that complying with extradition requests is not optional.

As noted earlier, Trump is apparently planning to turn himself in, but if The Former Guy did attempt to seek asylum in Florida, courts could step in and order the extradition. Refusal to comply with those court orders would engender a constitutional crisis, and causing a constitutional crisis is not something that most voters look for in a candidate. (Although I will stipulate that a minority of voters would love it.)

Finally, Mike Pence got his own bad legal news when he was ordered to testify before the January 6 grand jury. Although this probably does not hold any legal jeopardy for Pence, it does put him into an uncomfortable situation. Pence, who will probably run for president, must walk the tightrope between alienating the Trump loyalists in the GOP with alienating Republicans who still respect the rule of law, even when it is applied to Donald Trump.

For my part, I believe that if Pence is loyal to country over party (or the putative head of the party), he should have voluntarily testified when first requested. There is no legal doctrine that says that former vice presidents are immune to subpoenas in investigations of former presidents who broke the law.

It is ironic that three likely candidates for president find themselves in legal hot water in the same week. Donald Trump's woes are easily the worst of the three, but DeSantis and Pence’s problems also point to fundamental attitude problems within the GOP. In DeSantis’s case, the core problems are an authoritarian tendency to use government to stifle opposition and a lack of respect for the First Amendment. In Pence’s case, the problem is an all-too-common willingness to sweep Trump’s crimes under the carpet for the benefit of his party… and himself.

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I was recently asked why I don’t devote as much time to Joe Biden’s legal problems as I do Trump’s. The answer is that Joe Biden doesn’t really have any, despite what you may have heard on Fox News or OAN.

Hunter Biden, on the other hand, does have legal problems and is currently under investigation. But Hunter Biden is not an elected official and Hunter’s alleged crimes have so far not been linked to Joe. It’s possible that they never will. It’s possible that investigations of Hunter, now lasting much longer than the Mueller probe, won’t result in an indictment.

If and when Joe or Hunter are prosecuted, I’ll cover the story. For now, however, it’s a nothingburger.

From the Racket News

Wednesday, March 29, 2023

Of drag shows and David

I generally try to steer clear of the culture wars. That is not least because both sides tend toward the extremes of their positions and both sides often seem extremely ridiculous. Add to that the fact that when you plop down in the no man’s land between the sparring extremists, you tend to draw fire from both sides. Nevertheless, that is often where I find myself.

One of the most recent controversies was too juicy to pass up, however. Over the past few months, there has been a rising tide of opposition to drag shows. There have been attempts to ban the shows in which men dress up in women’s clothing as well as angst and investigations over allowing children to be present at the shows.

gray concrete statue of a woman
Photo by Sean Robertson on Unsplash

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The controversy finally reached rural Georgia last weekend when a drag production went live in my sleepy hometown. For clarification, I mean the town where I grew up, not where I currently live. I haven’t looked for shows near my current residence, but given my proximity to one of Georgia’s major cities, I’m sure that there are some examples nearby.

In the interest of full disclosure, there exist somewhere photos of me dressed as a cheerleader in high school. The occasion was the annual powder puff football game. For the uninitiated, the powder puff game was an exercise in role reversal in which the junior and senior girls played a flag football game and the boys formed the cheer squads. I think charity was involved. A good time was had by all, but I will not be posting pictures.

Now that we’ve got that out of the way, the bottom line is that drag shows suddenly seem to be Public Enemy Number One on conservative-leaning sites and channels. Much of the time, culture war features generate a bevy of clicks and shares and ratings when deeper, more important stories do not. So suddenly, the entire nation is focused on drag queens rather than mass shootings or the skyrocketing national debt or the potential that Donald Trump will start a civil war related to the 2024 elections.

It’s like the trope that is frequently trotted out online when several news stories break in rapid succession: “What is that they don’t want us paying attention to?”

But it isn’t “them.” It’s us. We are the ones who get wrapped up in mostly meaningless but emotionally gripping news stories. The media feeds us what we want.

So what about drag shows?

I’ve never been to one, but I used to overnight in Palm Springs, California. The hotel that my company put us up at was called the Hotel Zoso and I recall that there was a weekly drag show in the lobby. I never attended, but it was hard to miss the performers and attendees if you were anywhere near the performance area on the afternoons of the show.

In addition to being hotter than the face of the sun, Palm Springs seems to be a gay mecca. I also distinctly remember our van driver calling one of the nearby stores “gay mart,” but that’s neither here nor there.

Having chased that rabbit, I have to point out that I’m not even sure that drag shows are a gay phenomenon. I do know that cross-dressing is not necessarily indicative of homosexuality so my guess is that drag shows also include a variety of sexual preferences. [Note: It turned out to be true that not all drag queens are gay.]

In a sense, drag shows are nothing new. In the early days of Shakespeare, women were not allowed to perform on stage so men played the female roles. In our own age, drag performances were frequently part of bits by comic actors that included Bugs BunnyMilton Berle, and Max Baer, who doubled as Jethro’s sister Jethrine Bodine on the “Beverly Hillbillies.” These clips still crack me up.

But wait, there’s more! 1995’s “To Wong Foo, Thanks for Everything, Julie Newar” was comprised of a cast of manly men in drag. The movie “Hairspray” was remade in 2007 and featured more prominent actors in drag. “White Chicks,” from 2004, included both drag and racial face painting.

Of course, dressing up in drag for a laugh is different than putting on a regular drag show in a small town. Or is it? Both are done for entertainment.

The real question is whether drag shows are good, clean fun or whether they are of a sexual nature. The answer to that question may depend on the show, but in at least one high-profile incident last year, Ron DeSantis’s agents did not find any “lewd acts” when they monitored a Christmas drag show in Orlando.

Per the Tampa Bay Times, “the Dec. 28 performance featured campy skits like ‘Screwdolph the Red-Nippled Man Deer’ and shimmying, bare-chested men who wouldn’t have been out of place at a Madonna concert. Also a hip thrust or two, similar to what is sometimes indulged in by NFL players after a touchdown.”

“Besides some of the outfits being provocative (bikinis and short shorts), agents did not witness any lewd acts such as exposure of genital organs,” the official report detailed in the Times stated. “The performers did not have any physical contact while performing to the rhythm of the music with any patrons.”

That isn’t to say that there are no drag shows that don’t include sexualized content. Rather than banning all drag shows, a better solution might be to enforce laws that are already on the books against indecency and obscenity. This would include keeping children out of R and X-rated shows.

That was the case in yet another Christmas drag show in Miami, Florida last year. Per a Fox News report, “‘A Drag Queen Christmas’ [apparently the same show that took place in Orlando] took place in late December and was initially promoted by the hotel with Christmas-themed materials that did not warn of sexually explicit content and included the words ‘all ages welcome.’”

The venue was warned against admitting children, but per the complaint, “minors attended and were knowingly admitted. During the Show and in the presence of persons less than 16 years of age, performers appeared on stage wearing sexually suggestive clothing and prosthetic female genitalia."

The complaint also states that the performance included a “portrayal of oral fellatio,” rubbing prosthetic genitals on audience members, and exposed female breasts with less than a fully opaque covering, portrayals of simulated masturbation, and other sexually explicit content."

The DeSantis Administration is handling that incident by enforcing existing law. The state Department of Business and Professional Regulation is moving to revoke the venue’s liquor license, but CBS News reported that the matter was still ongoing a few weeks ago.

While the incident is not good, the fact that Florida is pulling a liquor license rather than arresting the people involved is telling. It wasn’t great, but it apparently wasn’t felonious either.

At the other end of the spectrum, another story from Florida involves a controversy over Michelangelo’s famous statue of David. The principal of a public charter school was forced to resign after sixth graders at the school viewed the statue, which depicts the famous Israelite king in the nude. The problem, as the school’s chairman of the board explained to the Guardian, was that parents were not notified in advance.

“We have a practice,” Barney Bishop III said. “Last year, the school sent out an advance notice about it. Parents should know: in class, students are going to see or hear or talk about this. This year, we didn’t send out that notice.”

“The rights of parents, that trumps the rights of kids,” he added.

And that is the core issue. If respecting parental rights is the core value, we have to respect the rights of parents to make mistakes. Parental rights, to a certain extent at least, mean that parents have the right to screw up their children. You can’t have it both ways.

We might disagree with some choices that parents make. I wouldn’t take my kids to see a drag show or to a drag queen story hour at a library. Other parents are fine with that. Parental rights are about the right to make those choices.

But where does it end? Some parents don’t want their children exposed to anything that resembles critical race theory (CRT). Others want a very detailed discussion of the racist skeletons in America’s closet. Some parents don’t want any mention of homosexuality in schools. Other parents see education about other forms of sexuality as a vital part of sex education.

I could go further. Some parents might not want their kids to be exposed to anything related to guns or violence. Some parents don’t want their kids to learn about religion. Some parents don’t want their kids to be taught that Joe Biden won the 2020 election.

Snowflakes to the left of me. Snowflakes to the right. And into the valley of death wrote David. (That refers to me, this time. Not the statue.)

I’m going to come down on the side that says parents should not have a veto over their school’s curriculum. There are a great many reasons for this, but the main one is that it is impossible to have a unique curriculum for every student based on the whims of their parents. In some cases, even the parents won’t agree about what their kids should be taught.

I’m not a fan of drag shows, but that is one area where parents do have veto power. If you don’t want your kids to go to a drag show, don’t take them. But at the same time, if you claim to respect parental rights, have some respect for parents who feel differently about the issue. That is what individual freedom means.

And while I’m at it, maybe kids are just as damaged by watching their parents rationalize politicians grabbing women by their va-jay-jays, having multiple affairs, and paying tens of thousands of dollars in hush money to cover up said affairs. Neither side has the moral high ground here.

Despite having once been a cosplay cheerleader, I don’t “get” drag shows, but I’m skeptical that kids are sexualized more at these shows than they are sitting in front of the television in their own homes. The difference may be that the drag shows are of a homosexual nature, rather than presenting a heterosexual view of sex.

How many of us are guilty of watching risque television shows with our young and impressionable children? As one of my pastors used to say, “Amen or oh me?”

I’m not a fan of drag shows, but I also don’t believe that they represent a serious threat to children. If there’s evidence of any sort of abuse, the perpetrators should be prosecuted, but so far such evidence has not been forthcoming.

The time spent fretting about drag queens would be better spent on figuring out how to protect our children from deranged school shooters. But that’s a real problem that requires real solutions and compromise. It doesn’t fit well into the world of cable news and political punditry.

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NORTH CAROLINA EXPANDS MEDICAID: Thirteen years after Obamacare became law, North Carolina became the fortieth state to pass a Medicaid expansion. Democrat Gov. Roy Cooper signed the bill into law, but it won’t go into effect until a budget is passed.

PENCE MUST TESTIFY: A federal judge has ruled that Mike Pence must testify before the grand jury investigating the January 6 insurrection. The ruling is under seal but reportedly says that Pence can decline to answer questions and can appeal.

From the Racket News