Isaac Laquedem

Yesterday we learned more about the pardon list

Amusement and consternation followed the revelation earlier this week that retired law professor John Eastman, one of the team that worked to undo the 2020 election in the waning days of President Trump's term, had sent an e-mail to Mr. Trump's personal attorney Rudy Giuliani shortly after the January 6 insurrection.  Professor Eastman wrote, "I've decided that I should be on the pardon list, if that is still in the works." 

What "pardon list"?  Who was working on it?  The Select Committee had hinted two weeks ago that several lawmakers had asked for pardons.  Yesterday's hearing opened the door a little further when witnesses testified that six staunch House supporters of President Trump had asked for pardons: Mo Brooks of Alabama, Matt Gaetz of Florida, Andy Biggs of Arizona, Louie Gohmert of Texas, Scott Perry of Pennsylvania, and Marjorie Taylor Greene of Georgia.

How many more names were on the White House pardon list?  I think we're going to find out.

The Supreme Court stands up for the parental rights of rapists

Yesterday, in a case called Vega v. Tekoh, the United States Supreme Court held that a criminal defendant who gives an incriminating statement under interrogation without being informed of his constitutional right to remain silent, and who is later acquitted, may not recover damages under 42 USC §1983, a civil-rights statute, from the government official who elicited the statement.  Today the Supreme Court expressed a different view on the rights of criminals when it held that the United States Constitution does not prohibit the states from declaring that the right of a rapist to become a father outweighs the right of a rape victim not to become a mother - actually, the court held that a rape victim has no constitutional right not to become a mother against her will.

When it absolutely, positively has to be in the vice president's hands overnight, call Senator Ron Johnson

Senator Ron Johnson of Wisconsin has received some unwanted fame after being outed yesterday as a bit player in the attempt to steal the 2020 presidential election.  His role was to deliver to Vice President Pence envelopes with the ballots of fake electors from Wisconsin and Michigan.  One of his staffers, Chris Riley, texted an aide to the vice president just after noon on January 6, before the count started, telling him that "Johnson needs to hand something to VPOTUS please advise."  When he told the aide that the "something" was an alternate (i.e., fraudulent) slate of electors, the aide told Mr. Riley not to give the envelope to the vice president.  Asked for comment, Senator Johnson said merely that he had "no idea" who had delivered the fraudulent ballots to his office, leaving the inference that his office attempted to deliver the ballots to Mr. Pence as an incidental sort of constituent service and not as any part of a scheme to steal the election.

Senator Johnson has not posted anything yet on his official Facebook page about the spotlight that the January 6 committee cast yesterday on his role as a minor political bagman, but his constituents aren't waiting for him to respond.  They've flooded his recent posts on the Keystone XL pipeline and the danger of vaccinating babies against Covid with comments on his newfound national notoriety. 

The pithiest comment about the Wisconsin portion of the plot came from the executive director of the Wisconsin republican party, who on January 4 texted someone the message "Freaking Trump idiots want someone to fly original elector papers to the senate President.  They're going to call one of us to tell us just what the hell is going on."  We'll learn more when the hearings resume tomorrow.

Is William Baxter (1929-1998) the culprit behind today's shortage of baby formula? History and economics say "yes"

On May 12 Heather Cox Richardson published this incisive essay, one of her "Letters from an American" series.  She starts her essay with a short discussion of the involvement of members of the Trump administration in the planning of the January 6 attack on the Capitol, and then moves into a report from the House Select Committee on the Coronavirus Crisis.  The committee's name doesn't describe its full ambit, which is to look into anything related to the federal government's response to the pandemic, including waste and fraud.  Professor Richardson then describes Tyson Foods pushing Secretary of Agriculture Sonny Perdue, and through him Vice President Pence and President Trump, to keep meatpacking workers on the job.  As she reports, "Industry leaders wrote a proposed executive order for Trump to issue, declaring a meat shortage and invoking the Defense Production Act to ensure that the plants continued to operate.  Less than a week later, Trump issued a similar executive order." 

Professor Richardson then ties the consolidation of meat production into the hands of a few gigantic businesses to the shortage of infant formula in the United States that resulted when one producer, Abbott, recalled its production from one factory after test samples were found to be contaminated, and describes the situation as the "larger problem of the consolidation of food production."

The "larger problem of the consolidation of food production" that Professor Richardson describes is significant, but it's only one facet of the very large problem of the consolidation of American and transnational industries in general, which started in the early years of the Reagan Administration.  Having successfully broken up American Telephone & Telegraph on antitrust grounds, the Reagan Administration and its chief antitrust enforcer, William Baxter, declared victory and went home, leaving the rest of American industry to merge and consolidate as it wished on the modest condition of paying a small toll to the government pursuant to the Hart-Scott-Rodino Act of 1976, but unfettered by Section 2 of the Sherman Act of 1890.  Benign neglect remained the policy of the enforcers (the "enablers"?) until 1998 when the Clinton Administration sought to fracture Microsoft - a case that the government won at trial and then ignominiously settled in the second year of the Bush (43) administration.

Since then antitrust enforcement in the context of corporate mergers has ceased to play an important part in corporate America.  By 2017 business professors Gustavo Grullon, Yelena Larkin, and Roni Michaely could write that market concentration as measured by the Herfindahl-Hirschman index (the one the Justice Department uses, when it's on the job) "has systematically increased in over 75% of U.S. industries, and the average increase in concentration levels has reached 90%" measured since about 2000. They also found that in real-dollar terms the average and median size of public corporations ("the largest players in the economy," they wrote) had tripled.  As they demurely put it, "Profit margins and shareholders' wealth gains have increased in proportion to the increase in industry concentration... Increased profit margins are mainly driven by wider operating margins rather than higher operational efficiency."

Translation: as the big got bigger, they used their concentrated market power not to be more efficient, nor to innovate, but to charge higher prices and make more money.  Food production is just one of the industries where the increase in concentration has brought new opportunities for the poor to subsidize the rich.

New fence installed to protect nation from Samuel Alito

That's what I wish the reason was for fencing in the Supreme Court.  Instead, I'm taking the fence as having a deeper symbolism.  It's a striking visual image of how far the Court has gone to distance itself from the rest of the nation.

Justice Alito's draft opinion will hand the Ninth Circuit a powerful tool, if it dares to wield it

Justice Samuel Alito's draft opinion in Dobbs v. Jackson Women's Health Organization, recently leaked to Politico, proposes to overrule Roe v. Wade and Planned Parenthood v. Casey altogether.  The opinion contains some gems of legal thought that the good Justice may not have thought completely through before committing his view to paper.  Here's one of them.

On page 5, Justice Alito states flatly: "We hold that Roe and Casey must be overruled."  He then explains why:  "The Constitution makes no reference to abortion [true], and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely - the Due Process Clause of the Fourteenth Amendment.  That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be 'deeply rooted in this Nation's history and tradition' and 'implicit in the concept of ordered liberty.'"  His quotations are from a 1997 case, Washington v. Glucksberg, in which the Supreme Court held that the Fourteenth Amendment does not bar a state from prohibiting physician-assisted suicide.

Let's talk about whether one current constitutional right is "deeply rooted in this Nation's history and tradition."  I have in mind the right of corporations to enjoy the same constitutional rights as people, upheld most notably in 2009 in Citizens United v. Federal Election Commission, the case that gave corporations the constitutional right of free speech, which they could express through unlimited political spending, unfettered by the FEC.  The right of free speech is certainly deeply rooted in our history and tradition, as it predates the adoption of the First Amendment in 1791.  We can trace the right of free speech, or at least the tradition, back to the libel trial of John Peter Zenger in New York in 1734.

But the rights of corporations are not deeply rooted in our history and tradition.  In fact, when the states came together to form the United States, corporations existed only by the grace and favor of the state legislatures, and before that, by royal charter.  To form a corporation, you needed to petition your state legislators, and possibly to subsidize some of them.  It was not until the 1840s that states began to adopt laws that allowed ordinary people to form corporations. In fact, at the end of 1791 the United States had only 41 corporations.  Thus, if you follow the reasoning of Justice Alito, the constitutional rights of corporations are not deeply rooted in the nation's history and tradition, and thus are not protected by the Due Process Clause of the Fourteenth Amendment.  The court has said that corporations have a constitutional right of free speech under the First Amendment, but the originalists on the bench have to twitch a little when they say that, because the Framers weren't thinking of corporations when they wrote the First Amendment any more than they were thinking of semiautomatic weapons when they drafted the Second Amendment.

Justice Alito's draft opinion overruling Roe v. Wade has been more than ten years in the making - you can see it foreshadowed in the opinion in Citizens United.  If the Supreme Court's final opinion adopts the logic and conclusion of his draft opinion, when the initial shock wears off, look for some of the federal appellate courts, the Ninth Circuit especially, to apply Alito's test for overruling Roe v. Wade as an excuse to disregard or very narrowly interpret other decisions of the Supreme Court that aren't supported by sound reasoning.

Women, children, and CPAs first!

As the S.S. Trumptanic takes on water, the former president's outside accountants have headed to the lifeboats.

The Port of Portland is still bigger than it thinks

Back in 2008, I wrote this post about how The Port of Portland (the "The" is part of its official name) was bigger than it thought.  When the legislature first established the Port nearly 60 years ago to absorb the Portland Dock Commission and run as a state agency, the legislature defined "Portland metropolitan area" in ORS 778.005 to be "the Oregon portion of a standard metropolitan statistical area as designated and published by the United States Bureau of the Budget with an Oregon population of more than 750,000.  The area that qualified consisted of Multnomah, Washington, and Clackamas Counties.  ORS 778.010 then defined the Port district to be the Portland metropolitan area, resulting in the Port district being those three counties.

A funny thing happened in the 1980s.  The federal government did away with the term "standard metropolitan statistical area," replacing it with "metropolitan statistical area."  The federal government also redefined the Portland MSA to include Columbia and Yamhill Counties.

The Port took no notice that the federal government had given it two additional counties, and in 2008 continued to believe that its district included only three counties.  It believes that even today, saying on its website that "at least two commissioners must each live in one of the three counties in the Port district."  Could the federal government add two counties to the Port district by changing the SMSA/MSA definition?  Perhaps not - a Port lawyer might argue that the definition of "Portland metropolitan area" must be read as it was in the 1960s when the legislature created the Port.

However, in 2009 the legislature amended ORS 778.005 to say that "Portland metropolitan area" means "the Oregon portion of a metropolitan statistical area as designated by the United States Office of Management and Budget with an Oregon population of more than 750,000."  In 2009 that sentence described Multnomah, Washington, and Clackamas Counties -- and Columbia and Yamhill Counties also, all of which were in the only metropolitan statistical area with more than 750,000 Oregon residents. 

Whether or not Columbia and Yamhill Counties were in the Port district before the 2009 amendment, the legislature unambiguously brought them into the Port district in 2009.  The legislature may have meant to leave the boundaries unchanged, but when legislation is plain and clear, the intent of the legislators isn't relevant.  As A.P. Herbert famously said about another legislature, "If Parliament does not mean what it says then it should say so."

Is this odd fact significant?  Maybe.  ORS 778.210(1) requires the Governor to appoint two Port commissioners from each county in the district.  Neither the  current governor nor any prior governor has ever appointed the required two commissioners from Columbia County and Yamhill County.  Someone in a battle with the Port might argue that as the Port's commission has not been properly constituted since 2009, perhaps the commission doesn't have the authority to do anything. 

I have no dog in that prospective fight, but if I lived in Yamhill County I might write to the Governor and ask to be appointed to the Port board.

Another story of government thrift with information

An odd story has been developing in Clark County, where an off-duty Vancouver police officer, Donald Sahota, was shot and killed in his home after Clark County sheriff's officers responded to an armed robbery in Orchards. The suspect left the store in a stolen vehicle, officers followed the suspect to the policeman's house, an isolated building at the end of a long private driveway. Something happened, and Officer Sahota was shot and killed.

But what was the something that happened? KPTV reported it as "The suspect attempted to break into the home of Officer Sahota. In a scuffle with the armed robbery suspect, Sahota was shot. He was provided medical aid but eventually died." A later report by KGW said "During the pursuit, the suspect ditched the vehicle in the Battle Ground area and fled on foot. Citing an unidentified source, the Oregonian/OregonLive reported that the suspect broke into Ofc. Sahota's Battle Ground home and the two got into a scuffle. At some point, the Clark County deputy opened fire and shot Sahota. He died at the scene." KOIN reported that "Deputies said they found the suspect and pursued him to a home, which KOIN 6 News revealed through property records to belong to Vancouver police officer Donald Sahota. It is unclear how the suspect ended up at Sahota's home near Battle Ground. [The Sheriff's Office] said the robbery suspect contacted someone at the house, and a deputy fired their gun."

Curiously, none of the stories so far state whether the deputies captured the suspect. The only common thread to the reports is that the Clark County sheriff's office is releasing information very slowly.

Three stories on transparency in government become clearer if you read them together

Three stories in today's Oregonian deserve to be linked together.  First is this piece by Shane Dixon Kavanaugh, appearing on page A6.  He reports that the Portland City Council has agreed to pay $250,000 to attorney Jeff Merrick and the Dunn Carney law firm for the attorney fees they incurred to challenge the city's refusal to comply with Mr. Merrick's request for public records of telephone and e-mail complaints about homeless camps.  When the district attorney ruled in 2018 that the records Mr. Merrick wanted were indeed public, he asked for $52,000 to cover his attorney fees incurred in pursuing the request.  The city objected, and the trial court denied his request.  Last year the court of appeals reversed the trial court and directed that the city pay his fees, which had by then mounted to $375,000.  They settled on the city paying $250,000. 

Almost as stunning as the news that the city council's commitment to secrecy had dug a $250,000 hole for the city was the reaction of Commissioners Jo Ann Hardesty and Mingus Mapps.  Mr. Kavanaugh reported that Commissioner Hardesty "praised city attorneys for their 'steadfast commitment' [her words] to withholding information that could place 'public servants in harm's way' and said the city should lobby state lawmakers to add new public disclosure exemptions."  Nothing in the story, however, suggests that Mr. Merrick sought the home addresses of any city employees.  Commissioner Mapps's stance was more nuanced than Commissioner Hardesty's pro-secrecy view; the article quoted him as saying "I understand the need for transparency and I value transparency.  But, at the same time, I also feel like this rule that the courts have imposed on us is a violation of the public trust."  

The second story, on page A9, is by Noelle Crombie, who reports that Governor Brown's office "demanded the Oregon Department of Corrections find out if an employee revealed the governor's controversial plan to commute the sentences of hundreds of juveniles serving time for violent crimes."  Governor Brown herself confirmed to the newspaper that her office wanted to know how the Oregonian got a copy of her September 28 letter to the Director of Corrections that laid out the governor's plan.  The Director of Corrections, Colette Peters, then had staff go through the e-mail accounts of "about two dozen employees" to find the leaker.  Nothing turned up.  The irony is that the governor's letter was a public record.  Amber Campbell, speaking for the Department of Corrections, said "this document being referenced is a public record, so even if the search concluded that an employee distributed from a DOC server to the Oregonian, we would not and could not discipline that employee."

I don't know Noelle Crombie.  I suspect that she has an engaging sense of humor, for four paragraphs later she cheekily writes, "Brown campaigned on transparency and criticized her predecessor, Gov. John Kitzhaber, for failing to make it a priority."  Ms. Crombie also mentions that a paralegal at the Oregon Justice Resource Center also wanted information about the letter, because he "suspected it was intended to undermine the governor's 'internal communications' with the agency."

That brings me to the third story, written by Maxine Bernstein and printed on page A12.  You may have read a few weeks back that the Department of Corrections put Mark Wilson, a state prisoner convicted of murder, into 120 days of solitary confinement because a prison librarian (a state employee) as a joke had put a toy telephone on the library desk where Mr. Wilson often worked, which the department considered to be contraband.  (Never mind that a state employee put it in front of him.)  He is suing the state for damages.  The state's defense?  The state asserts that Mr. Wilson was collaborating with the Oregon Justice Resource Center (see previous story!) to give OJRC "access to prison affairs," and Mr. Wilson's lawsuit is a put-up job with OJRC.  Ms. Bernstein also reports that the Director of Corrections, Colette Peters (see previous story again!) "staunchly defended her department's actions [in putting Mr. Wilson into solitary confinement] before a legislative committee earlier this month.  'While bringing in a [toy] phone might seem like child's play, it is something that's very serious, and both the employee and the AIC (adult in custody) must be held responsible."

A cynic (who, me?) might say that the city council should be spending money to make records public, not to hide them; that in her final year in office our governor should be honoring her pledge to keep government open, instead of emulating Richard Nixon's plumbers; and that instead of inventing a silly reason to throw an inmate into solitary confinement for four months to cut off contact with an outside watchdog, the Department of Corrections should be fixing the problems that the watchdog has been barking about.  I am not that cynic; I'm merely a taxpayer who's bemused by how open our elected officials are about their efforts to keep government secret.