Random Thoughts – Randocity!

Republican Brinkmanship

Posted in botch, government by commorancy on February 13, 2021

The Republican party has a cancer within. That cancer is fairly obvious as well. You might be thinking, “Well, what is that cancer?” That’s today’s article. Let’s explore.

Democrats

Before I get into the meat of this article, let me be perfectly clear. The Democrat party isn’t a bunch of saints. Oh, no no no. These Democrat Senators and House representatives have their own fair share of problems, too. It’s just that at this very moment, the Republican party is in much more shambles than the Democrats. At least the Democrats did not urge their constituents to lay siege to Capitol Hill. The Democrat party is also at least holding onto the purpose of their platform unity and party, unlike many in the Republican party.

Note, I’m not planning on getting into the ‘right’ vs ‘left’ arguments in this article. Why? Because the cancer within the Republican party has nothing to do with ‘right’ vs ‘left’ points of view and everything to do with embracing the wrong ideology for this political party.

Republicans and Trump

The Republicans (also known as the Grand Old Party or GOP) is a party that stretches back to somewhere around 1854. Today (or at least prior to Trump’s election as President), the party’s platform primarily espoused conservative leanings and smaller government. Not all party members believe in that point of view, but most of the Republicans do.

Enter Trump in 2016. Trump is a capitalist businessman who is the child of a wealthy well-to-do real estate family. Much of his fortune was inherited from his parents. However, he has also made a mark for himself in real estate. His tactics have been mostly ruthless in his business dealings. That became fairly obvious fairly quickly once he took office as President, but it should have been obvious on his earlier TV reality show, The Apprentice… where the point was to fire those who didn’t perform. That firing action is actually a key element of the show and you could tell that Trump actually enjoyed every minute of that segment. One might even assume that Trump enjoys inflicting pain on others.

As Trump stepped into power, so began his concerted effort to win the 2020 election even in 2016. He sowed seeds of discontent and doubt surrounding the election early. His whole “mail in ballot” rhetoric began very early in his tenure as President and then he ramped it dramatically over time. It was clear that Trump intended to try and subvert the election process in some way if he could. He sowed these seeds early to let the weeds grow, and grow they did.

He gained a substantial following of people with extremist points of view… with people who wholeheartedly believe conspiratorial efforts are under foot. That, most importantly, the Democrats hold enough sway and power to actually subvert an election… never mind that the Democrat party is no more or less powerful than the Republican party. In fact, the Republican party was more powerful than the Democrat party with Trump elected, yet Donald Trump needed to pretend that the Democrat party had the upper hand so he could force lies down people’s throats.

More specifically, Trump offered a big election lie that somehow the Democrats subverted the election and managed to get Joe Biden elected by cheating. Trump tried time and time again to put forth his election rigged assertion in court. Every court that reviewed his claims dismissed the suit as meritless… yes, even from judges who were appointed by Trump himself. None of the judges would entertain that the election was “rigged”. Trump simply had no proof. However, there were a lot of statements from people who claimed to work for the election, but they were simply statements with no proof to back up the claims. They were mere accusations, or lies, if you will.

Trump’s Presidency

As Trump grows his presidency through his 4 years, he begins facing the real possibility of being a one-term president. He realizes that the populous could, in fact, choose a new candidate and force Trump out. Trump has already admitted that he’s not a good loser. Well, that’s as obvious as the day is long. To avoid his being ousted, Trump begins the election lie early… by targeting mail-in ballots. His attack on mail-in ballots is the basis for beginning the “big lie” that grew and grew over time… particularly once it was clear that Trump had lost both the popular vote and the election and the fact that COVID-19 more or less ensured mail-in ballots.

After his lie begin in earnest, Trump was relentless in perpetuating this lie every day after the election closed. Not only did he perpetuate the lie using his voice via videos, he perpetuated it on Twitter and social media and by enlisting his Republican party-mates to help him perpetuate his lie. He even enlisted his attorney to lie for him. Anyone Trump could enlist to perpetuate his lie he would manipulate and use. Trump’s lie agenda stopped at nothing to make sure his lie could reach far and wide.

This lie not only continued unabated, it grew to a point where gullible voters began believing this lie because such news services like Fox News perpetuated this lie through its very own anchors spreading false narratives. Even to this day, Trump still insists on perpetuating this election lie… an outrageous lie that is actually so absurd that anyone with half a brain can realize there’s no possible way that the election could have been rigged in the way that Trump has claimed. Trump could have at least tried to come up with an election narrative that was even marginally believable, but he didn’t. You don’t have to be a Republican or a Democrat to see the absolute absurdity in his lie.

Republican Party

The lie by itself wouldn’t have been a problem on its own. However, it’s how Trump mobilized that lie into action by extremist groups that led to the riot on Capitol Hill on January 6th.

Trump supporters would like to disconnect each linked event from one another and claim that the whole isn’t the sum of its parts. Meaning, that Trump’s connection to Qanon months earlier had nothing to do with those Qanon groups that up showed up on Capitol Hill on January 6th. Again, anyone with half a brain could figure out that these events were conclusively linked. One would not have happened without the other. It was these series of events that are all linked together and which led up to the riot on Capitol Hill.

Trump can most certainly feign ignorance over the matter, but that’s not only disingenuous, it’s an outright lie. Trump knew most certainly who Qanon was months before the election. He knew exactly what they were capable of doing… that’s the reason he invited them to Capitol Hill. That’s the reason he invited all of those extremist groups to Capitol Hill. You can’t invite extremist groups to an event and then not expect extremism to occur. That’s like hiring a clown for a party and then claiming you didn’t know the clown would act like a clown.

Speaking of parties, let’s move into the meat of this article. The Republican party has allowed and indeed perpetuated Trumps lies and cancer to infect the party. The party has even endorsed elections of people into House and Senator Republican roles who have extremist viewpoints and potential extremist affiliations. In other words, the Republican party appears to have been infiltrated by extremist groups. Yet, the Republican party turns a blind eye to all of this.

Republican Insanity

The Republican party was formerly about conservatism, smaller government and lower governmental spending. Today, the new extremist version of the Republican party is more about bearing arms to coerce people into action and tell lies that get people to mobilize. That form of extremism has no place in any political party, Democrats, Republican, Libertarian or Independent. Governing people in congress is about words, not about violent actions.

Worse, these extremist republican party members… who will remain nameless because you know who you are… are about as dumb as a brick if they think the American people (Republican or Democrat) won’t see through their failures and lies while in office.

For example, by ignoring the Impeachment trial, by failing to vote to convict, that sends a clear message, not that Donald Trump is innocent, but that the Republican party is firmly corrupt. Any elected Republican who actually believes that the extremist Republican contingent is large enough to vote to keep these sad lying sacks in office is literally delusional.

The vast majority of Americans, Republican or Democrat, do not hold extremist beliefs. They do not believe that guns and violence are the answer. Most Americans know that guns and violence aren’t an answer. Yet, you have an elected Republican official holding up his fist in solidarity towards known radicalized extremist groups who believe in conspiracies… people who are the exception, not the rule. What does that solidarity say? It doesn’t say good things. As I said, the vast majority of Americans believe in the rule of law, not in radical extremist agendas, such as attacking Capitol Hill by beating cops over the head with the American Flag or by pummeling them with fire extinguisher.

For so many duly elected Republicans to actually believe in violent extremism says that these people are literally delusional. Worse, these elected people aren’t likely to remain in office come next election… if those elected officials can even manage to remain in office that long. Few Americans want someone who’s literally loony toons representing them… particularly people who endorse violence against other Americans.

Impeachment Voting

What it comes down to is how these Republican Senators choose to vote. Their vote says all that it needs to say about those in the Republican party.

Literally, President Trump incited into action groups known to have extremist tendencies. He used ‘fighting words‘ like ‘Fight Like Hell’ which is not in any way protected speech. Inciting people into action regardless of whether you knew that it would erupt into violence, but that did is enough to exempt those words from First Amendment Rights. The sheer action caused by the utterance of the words ensures the words are not protected speech.

A number of people have tried arguing Trump’s ignorance of Q and their motives. Yet, those arguments are effectively invalid. You might not know the first time, but you would definitely know the second time. Inviting known extremist groups to a rally and then setting them loose with those words defines those words as ‘fighting words’ which are excluded from First Amendment protections.

These Republicans who wish to ignore all of the above and attempt to paint a picture of an ignoramus President is about is sincere someone running a red light camera and stating the picture is not them, when it clearly is.

We have not only the speech that President Trump let loose just minutes before the riot, but we also have images from within Capitol Hill showing the damage inflicted not only on the building grounds, but the injuries sustained to the police and the deaths which occurred. It clearly shows a sad day for America when a sitting President lets loose an extremist mob on Capitol Hill to inflict as much damage as they can.

It gets worse when the President sits idly by and does nothing to stop the mob and everything to reward them with the words, “We love you. You’re very special.” What rational President does this to his own party members?

Capitol Hill Police Involvement

Some have argued that part of this blame is on the Capitol Hill police being unprepared. To a degree, this is true. If Capitol Hill police had adequately prepared for a mob to descend on Capitol Hill, it’s entirely possible the mob wouldn’t have even breached the perimeter. Shoulda-woulda-coulda. While the police do have some culpability in not properly and adequately preparing for a mob that day, Trump shouldn’t have even held a rally that day. Yet, he did.

Trump’s sole goal was to disrupt, stop and halt the counting of the electoral college votes. He wanted the whole thing to fall apart… not that halting the vote count would have stopped Biden from taking office as the electoral college vote verification is largely a symbolic gesture.

Still, the disruption from the mob only delayed the inevitable. The vote count proceeded later into the evening after the mob had disbursed. What Trump hoped would happen, didn’t. Yet, the event occurred, terrifying members of congress, including the Vice President.

Republican Senators

What it comes down to in the ongoing impeachment trial is that many Republican Senators are treating the impeachment as if it’s a joke, that it’s not real. It is real and it’s going to go down in the history books. Additionally, those who vote against impeaching Donald Trump are likely to lose their position, not keep it.

Why? Because the American people don’t like lying, cheating, violence condoning, delusional people representing them. Any elected Republican Senator who believes that voting against impeachment will somehow curry favor with the voters will instead find themselves out of office come next election, if not sooner than that by being forced out or recalled. If you want to stay in office, they must to vote for impeachment.

Voting for impeachment means to uphold the constitution, America, disavow violence and prevent a morally bankrupt President from trashing the presidency on the way out. Voting against impeachment means that that Senator believes in selfishness, that violence is the answer and that a President can do whatever they want whenever they want. That’s not why Senators are voted into office. If you, as a Senator, cannot even do the job you were voted into office to do, then expect to be expelled… if not immediately, then at the next election.

Simply put, voting against impeachment means you are an untrustworthy Senator. If a Senator thinks that America will reward them for being untrustworthy, they’re completely delusional. America will not reward you with another term for perpetuating a baseless lie… a lie that proves that you are untrustworthy.

Make No Mistake

Republicans also seem to be under the delusional belief that they were somehow protected during the Capitol Hill riots. I can guarantee you that ANY party member would have been attacked if found: Republican or Democrat. You can’t tame a mob. If any of those mob rioters had found a sitting Senator or House member of any party, the mob members would have acted first and asked questions later. Meaning, Republican or Democrat wouldn’t have mattered to those extremists. They would have attacked any member of congress on sight if they had been able to.

Republicans seem to be under some delusional belief that those extremists were only after the Democrats. Wake up! They were after you too. Certainly they were after Mike Pence. They were after and would have attacked ANY congressional member of any party affiliation without hesitancy. That Republicans seem to think that they were somehow protected during the mob incursion is an insane point of view which is justified in their own minds, but has no basis in reality.

If you can manage to get another Republican President elected in your lifetime, you’ll be lucky. It’s going to be a very long time before much of America will trust Republicans, particularly if the majority of Republican Senators vote against impeachment. Wake up, Republicans… do what’s right before it’s too late to salvage what’s left of your shattered party. Many Americans have been wanting to do away with the two-party system. Well, this may very well be the opportunity to make that a reality.

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Is the GameStop stock run collusion and conspiracy?

Posted in analysis, corruption, ethics, government by commorancy on January 27, 2021

This is exactly what Wall Street and SEC regulators are now trying to determine. Let’s explore.

Reddit and GME

A subreddit named wallstreetbets has surfaced and it appears to be the location where a large group of people (on the order of 250k or more people) are congregating. The difficulty is, it seems that this subreddit is being used to coordinate efforts to manipulate the GameStop (GME) stock to affect the following:

  1. Lose money for the hedge funds which are shorting this stock
  2. Manipulate the price upward heavily to make money

The question remains, is this considered a form of market manipulation, collusion and/or conspiracy?

What is Collusion?

Investopedia states:

Collusion is a non-competitive, secret, and sometimes illegal agreement between rivals which attempts to disrupt the market’s equilibrium. The act of collusion involves people or companies which would typically compete against one another, but who conspire to work together to gain an unfair market advantage.

https://www.investopedia.com/terms/c/collusion.asp

 

The subreddit has, so far, been a public forum that anyone can join. It was private for only a very brief period of time on January 27th, 2020. As a result, it doesn’t fall under the ‘secret’ category.

The Oxford Dictionary defines collusion as:

secret or illegal cooperation or conspiracy, especially in order to cheat or deceive others.

Oxford English Dictionary

 

This is minimal in terms of what it says, but one thing it does clarify is that it doesn’t necessarily need to be ‘secret’.

Wikipedia defines collusion as:

Collusion is a deceitful agreement or secret cooperation between two or more parties to limit open competition by deceiving, misleading or defrauding others of their legal right. Collusion is not always considered illegal. It can be used to attain objectives forbidden by law; for example, by defrauding or gaining an unfair market advantage.

https://en.wikipedia.org/wiki/Collusion

 

Based on all of these definitions above, it does appear that “gathering a group of people together” to “gain an unfair market advantage” is probably enough to be considered collusion. As Wikipedia states, not all collusion is illegal. However, defrauding or gaining an unfair market advantage IS illegal.

Sticking It to the Man

While the wallstreetbets subreddit believes they are “sticking it to the billionaires”, they may, in fact, be sticking it to themselves. I see this situation as the virtual equivalent of the mob insurrection on Capitol Hill. While that situation wasn’t considered ‘collusion’, it does bear a lot of similarities to the Capitol Hill situation.

How? This GME reddit is 250k people all congregating to a achieve a common goal… to raise the price of the GME stock and, at the same time, stick it to the hedge fund investors who were heavily shorting the stock.

Stock Shorting

I’m going to take a little bit of a detour here to explain stock shorting. When a hedge fund shorts a stock, they are “hedging” that the stock’s price will go down. If the stock price does go down, the hedge fund makes money through borrowing, selling, then buying back the stock and then returning the stock to the lender. If the stock price goes up, however, the hedge fund must still buy and sell the stock at a loss (see below).

Stock shorts are actually buying and selling of borrowed stock. The hedge fund borrows a specified number of shares from a broker, then sells the stock immediately at the current price. For example, they could borrow 1 share and sell it at $100 market price. $100 goes into their brokerage account. When the price goes down to $50, they buy the stock back at that $50 price ($50 goes out of their brokerage account), then they return the stock to the lender and keep the $50 difference in their account. It’s a way for the hedge funds to make money without ever having to own that stock. Technically, you could do this with anything, such as a car, but the odds of a successfully shorting with a car are much lower.

Now that we understand how you can make money on shorts, let’s apply this to what the redditors are doing with GME and find out more about whether this is collusion, conspiracy or both. Someone in the wallstreetbets subreddit thread determined that GameStop, AMC Theaters, Bed Bath and Beyond and perhaps even other stocks were heavily shorted by hedge funds.

Hedge funds typically place a lot of stock shorts on companies that are on the verge of collapse. It makes sense. If a company is on the verge of going out of business, the odds of the stock dropping go up dramatically. Therefore, hedge funds heavily short the stock to make money. By ‘heavily’, they borrow as much stock as they can get their hands on. The more they borrow, they more they can make if the price drops.

What happens if the price goes up?

This is where shorting stock becomes a big, big problem. Should the price go up, the hedge fund is now responsible to pay for the loss. Let’s go back to the example above.

  • Borrow 1 share and sell it for $100
  • Market price goes up to $150
  • Hedge fund must buy it for $150 and loses $50 in addition to the $100 they gained in the first sale.

Here is what the subreddit people are attempting to do by forcing these hedge funds to lose money. With stock shorts, there is no limit on the losses. As the stock price is driven ever higher, the hedge funds lose more and more money when their short position comes due and they are forced to buy it back at a loss. For example, if they borrowed and sold 1000 shares at $3 (1,000 * 3 = $3,000) and stock price goes up to $300 (1,000 * 300 = $300,000), when they are forced to buy it back because the lender wants it back, they are forced to pay $297,000 (in addition to the $3,000 they gained by selling it initially) to cover the cost of buying that stock at its current price. Because hedge funds buy these low priced “in danger” company’s stock, they bet that the stock price will go down. This proves that there is no cap on losses when shorting.

Because of the market forces with the wallstreetbets subreddit, this very large group of people have worked together (colluded) to ensure the price goes up to an extremely high price… one that forces the hedge fund to cash out and lose money (conspire) and also force the stock price higher so those who got in first can make a lot of money (market manipulation to an advantage).

Collusion, SEC and DOJ

Here’s where this situation becomes a problem in the same way as the Capitol Hill mob. Social media allows people to post anything they want and discuss whatever is on their mind. It’s very freeing, but it can also be equally damning. In this case, both the SEC regulators have a reason to go looking in much the same way as the DOJ went looking for Capitol Hill mob participants.

People participating in the wallstreetbets subreddit have left breadcrumbs to their person. Meaning, by writing into that thread, it gives the SEC regulators a way to track down who you are, where you are and whether you participated. For those not living in the United States, the DOJ might not be able to do much. However, for those who are in the United States, the DOJ can lay claim on you.

Collusion and conspiracy isn’t taken lightly. In this specific case, the wallstreetbets subreddit had the ability to push the GME stock from less than $10 to over $300 in about a week. That’s definitely market manipulation. If using this subreddit to tell everyone hold or sell or buy, that definitely manipulates the market and because all people are doing it at once can be seen as a form of collusion and market manipulation. Manipulating the market to gain an advantage is illegal. Doing it using collusion makes that collusion illegal. On top of that, attempting to force a bad outcome on someone else is considered conspiracy.

Penalties

Let’s understand now what the penalties for collusion are:

Most criminal antitrust prosecutions involve price fixing, bid rigging, or market division or allocation schemes. Each of these forms of collusion may be prosecuted criminally if they occurred, at least in part, within the past five years. Proving such a crime does not require us to show that the conspirators entered into a formal written or express agreement.

https://www.justice.gov/atr/price-fixing-bid-rigging-and-market-allocation-schemes

 

From the above DOJ’s web site, we can see that market division or allocation schemes may be prosecuted criminally. Further, the DOJ doesn’t have to show that the conspirators entered into an agreement. The word conspirators is the noun form of conspire. Also, because it states “Most” to open this paragraph, it means the DOJ is open to other forms, not just those listed.

Definition of conspire:

(of events or circumstances) seem to be working together to bring about a particular result, typically to someone’s detriment.

Oxford English Dictionary

 

In this case, the conspiracy is to bring down the hedge funds by forcing them to lose money. That definitely wreaks of conspiracy. At the same time, the conspirators gain a market advantage by driving up the price to make money.

Let’s go back to that DOJ article from above and describe what the penalties actually are:

Enacted in 1890, the Sherman Act is among our country’s most important and enduring pieces of economic legislation. The Sherman Act prohibits any agreement among competitors to fix prices, rig bids, or engage in other anticompetitive activity. Criminal prosecution of Sherman Act violations is the responsibility of the Antitrust Division of the United States Department of Justice.

Violation of the Sherman Act is a felony punishable by a fine of up to $10 million for corporations, and a fine of up to $350,000 or 3 years imprisonment (or both) for individuals, if the offense was committed before June 22, 2004. If the offense was committed on or after June 22, 2004, the maximum Sherman Act fine is $100 million for corporations and $1 million for individuals, and the maximum Sherman Act jail sentence is 10 years. Under some circumstances, the maximum potential fine may be increased above the Sherman Act maximums to twice the gain or loss involved.

https://www.justice.gov/atr/price-fixing-bid-rigging-and-market-allocation-schemes

 

That means that anyone who is found to have participated in this scheme, which should be readily apparent by reading comments on that subreddit, may be liable for $1 million for EACH violation and up to 10 years in prison. The fine could be well more than this if the gain from the market advantage ended up more than the fine itself.

Participation?

If you participated in this, don’t think that the Department of Justice can’t find you. They most certainly can. Think about all of the people they have found from the mob on Capitol Hill. The DOJ can subpoena reddit for the IP address used, then trace it back to your ISP also with a subpoena, then trace it back to the household where that IP resided at that moment in time, then send someone to the home. It’s only a matter of tracking the specific person who posted on reddit which can be easily done by reviewing the devices in the household (via warrant confiscation). Yes, they can confiscate your devices including your phone.

If the SEC regulators determine collusion and conspiracy were involved (and it looks more and more likely), then every individual who participated may find themselves in court, fined at least $1 million, have a felony on their record and may face up to 10 years in prison.

The hedge funds may or may not get their money back. The government could distribute the collected fines to the hedge funds to help offset their losses. However, the hedge funds may also be able to bring their own lawsuits against each individual separately should the SEC find foul play in this situation. That means that in addition to the DOJ’s own penalties, the hedge funds may also have legal recourse against every individual who participated.

Social Media

When participating in such actions, social media is not your friend. It holds onto and remembers everything you say and do. Because you volunteered that information to that social network, you gave up the right to the privacy of that data by posting it. That means that you brought the wrath down upon yourself by participating.

Investing and Collusion

Investing alone with no participation in the subreddit thread may not be seen as collusion by the SEC. People have the right to buy and sell stocks at any time. So long as they’re buying and selling stocks on their own and those sales cannot be traced back to participation in a wider collusive conspiratorial effort, then it shouldn’t be considered collusion or conspiracy. Though, you might still be called or visited if you bought into GME stock and have been determined to have visited reddit or Twitter or discussed anything about this situation.

However, those people who can be definitively traced to both bumping the stock price up AND participating in the subreddit to affect others to “do the same”, particularly with regards to conspiring against the hedge funds, these people may be brought up on charges of collusion, conspiracy and market manipulation.

If you’re reading this article and you’ve participated, deleting your posts may not protect you. If your post has lived for more than 24 hours on reddit or Twitter, it’s very likely on a backup that the DOJ can request. Deleting the post from the interface may not be enough to prevent the DOJ from finding your involvement.

Just Starting

The SEC investigation into collusion, conspiracy and market manipulation is just beginning. The SEC and DOJ will take their time before they start tracking down individuals and arresting them. Just as it has taken weeks to track people down to arrest the mob on Capitol Hill (which is still ongoing), it might take weeks or months to track down everyone involved in the GME market manipulation. Don’t think you’re safe if the DOJ hasn’t visited you yet. The DOJ isn’t under any time constraint to round up and charge individuals in any specific time frame. They will do it on their time, which could be months or even years later.

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Countdown: 100 days of Mask Wearing

Posted in government, Health by commorancy on January 24, 2021
Tagged with: , , , , , ,

Are Trump’s final Pardons legal?

Posted in analysis, government by commorancy on January 22, 2021

The United States Constitution has very specific language defining how and when the Presidential power of pardons and reprieves can and cannot be used. Let’s explore.

Constitutional Language

From Article II, Section 2, here is the language that defines the President’s powers. Note, styles have been added for clarification purposes.

 

The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.

U.S. Constitution => Article II => Section 2

 

At the end of this paragraph, we have an exception to and limitation of the previous power, “grant reprieves and pardons”. Some might argue that this exception covers the entire paragraph describing his powers as a whole, but this exception immediately follows the definition of the President’s aforementioned “grant reprieves and pardons” power. While the exception may cover all of his power in a logical sense after full impeachment AND conviction and having been removed from power, it doesn’t make sense to cover all of his powers while he still holds office after impeachment, but before the trial. He must still remain commander in chief of the Army and Navy of the United States, for example.

Instead, I believe that this specific language, because it appears directly after the “grant reprieves and pardons” language is intended to narrowly apply solely to the power of granting reprieves and pardons, not to the entire paragraph.

Logically, this interpretation makes the most sense because you wouldn’t want a President who is in the process of being impeached to flurry pardon both himself and those who might have been involved, thus nullifying the entire impeachment proceeding. Meaning, the power given to Congress to impeach the President must not be allowed a loophole by the President to avoid impeachment.

Trump’s Pardons and Reprieves

While the language of the constitution is clear on what powers the President has, it has exclusions when specific powers are unavailable to the President as defined just above.

Let’s examine Trump’s flurry of pardons on the way out of office. Because of the way the constitution language is written, it seems that Trump’s final flurry of reprieves and pardons on the way out, but which occurred after his second impeachment on January 13, 2021 may not be constitutionally valid or legal. According to the constitution, the President forfeits the power of reprieves and pardons “in cases of impeachment” or, more specifically, during impeachment proceedings.

One can argue that Trump lost this power during his first impeachment. He did. However, that impeachment ended in acquittal… thus restoring all powers to him that he would have lost between the House’s impeachment, but before the Senate trial concluded in acquittal. If he had made any pardons during that impeachment period in 2019, those would also be constitutionally invalid.

Our Framers’ Logic

The framers of the constitution would have logically understood the impeachment process fully. After all, they designed it. The framers understood that impeachment is a two step process requiring both the House and the Senate to participate. They also understood that because these two houses must work together to complete the process, there could be delays between the time the House approves their impeachment resolution and the time the Senate begins and concludes the impeachment trial.

These same framers also understood that because of the time required to complete the impeachment process in full, the President could use his power of pardons and reprieves to nullify the very reason for the impeachment itself. To avoid this design flaw in the process, the framers included the clause ‘except in cases of impeachment‘ to limit the use of this Presidential power during impeachment proceedings and thus avoid the possibility the President could pardon himself or others and nullify the entire impeachment.

Legal vs Illegal Pardons

The point to all of this is that President Trump, at the time before he left office, was still under impeachment proceedings. This clause in the constitution would then suspend Trump’s power of reprieves and pardons until the impeachment had reached full conclusion: acquittal or conviction.

Because Trump’s impeachment is still ongoing as of this article (and was at the time of his exit from office), any reprieves and pardons he signed after the House passed its Article of Impeachment would be constitutionally illegal and thus, null and void.

If Trump had remained in office after conclusion of the Senate’s impeachment trial AND if the trial resulted in his acquittal, his power of reprieves and pardons would be restored. He could have then reissued those reprieves and pardons to make each of them legal and valid. However, Trump is no longer President as his term has ended. His ability to reissue those reprieves and pardons has ended. This means that all of the reprieves and pardons that Trump issued after January 13th, 2021 are constitutionally invalid and must remain invalid in perpetuity.

President Joe Biden, the now current President, could reinstate those reprieves and pardons on Trump’s behalf if he so chooses, but that would require Joe Biden to agree to reissue those specific reprieves and pardons on behalf of Donald Trump.

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Should the Senate conclude Trump’s Impeachment Trial?

Posted in business, government by commorancy on January 21, 2021

Now that Donald Trump has left office, some Trump fans believe the completion of the impeachment process is now “unconstitutional” and “null and void”, since Trump is no longer President. Let’s explore if this is true.

In or Out of Office?

Let’s understand the laws of our land to understand better the constitutionality of the impeachment process. While the constitution is mostly clear on impeachment, it’s not 100% clear on when and how impeachment may occur under ALL possible circumstances and conditions. This is why interpretation must occur in these special cases. However, interpretation doesn’t mean pulling conclusions out of the air. Instead, it means looking for existing precedents of law in which to guide that interpretation to logical and legal conclusion.

Constitution Excerpts

Let’s look to the United States Constitution (link to a PDF version) to read its language regarding impeachment:

Note that any italics, bold, highlights or <sic> have been added by this author for clarification purposes.

The House of Representatives shall chuse <sic> their Speaker and other Officers; and shall have the sole Power of Impeachment.

U. S. Constitutution => Article I => Section 2

The above section defines which arm of the government handles Impeachment… The House of Representatives. So let’s learn about the Senate’s role in the impeachment process.

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

U.S. Constitution => Article I => Section 3

The above section defines the Senate, its powers and how the Senate handles cases of Impeachment. Clearly, the Senate is defined to ‘try‘ (or perform a Trial) for all Impeachments. It also explains how the affected Party will be handled by law upon conviction. This section also defines the requirement of a two-thirds agreement in the Senate for the Senate to convict an Impeachment. Less than two thirds agreement and the trial concludes in acquittal. The two-thirds is strictly for agreement on removal of the President. A simple majority is required to agree on whether the person can hold office again. Both votes are separate. This does mean, then, that it is possible to acquit for removal, but convict for preventing the person from ever holding office again.

To recap so far, the House of Representatives is given the power of Impeachment solely. The Senate is given the power to preside over the Trial of that Impeachment solely. To clarify further, the House performs the impeachment and the Senate performs the Impeachment trial AFTER the House adopts the Articles of Impeachment and hands those approved articles to the Senate. The Senate puts forth and votes on the remedies should conviction occur.

These excerpts above describe the overview of Congress’s responsibilities and role for impeachment, but not the exacting details of how the process operates. We’ll dive into the details shortly below.

Just below, these excerpts describe Presidential responsibilities, powers and, yes, impeachment.

The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.

United States Constitution => Article II => Section 2

The above section and article is intended to describe the President’s extent of powers… “except in cases of impeachment“. This means that the President’s powers do have constitutional limits “, specifically in cases of impeachment.

Because this is both the United States Constitution and a legal body of law combined, it must be interpreted not only by constitutional standards, it must also be interpreted by legal standards. Unfortunately, the above isn’t the only mention of the term impeachment within the United States Constitution. Thus, we must press on to better understand how all of the sections together both combine and define what impeachment is, but also the extent to which it functions. With that in mind, I’ll come back to describe more about the constitutional language after all articles and sections have been quoted both above and below.

The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.

U.S. Constitution => Article II => Section 4

This section describes to whom impeachment applies and under which specific circumstances.

The Trial of all Crimes, except in Cases of Impeachment; shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed

U.S. Constitution => Article III => Section 2

The above section describes to which Trials a jury applies and where those Trials should be conducted. Clearly, impeachment is excluded from trial by jury and also excludes holding it in a state venue, choosing to hold Impeachment Trials in the Senate chambers. Note that this language incidentally also defines powers of the Judicial branch of government by describing the Executive and Legislative branches. Because all three sections of government are so interlinked in each other’s processes, it would be impossible not to describe portions of the Judicial branch when discussing the powers and responsibilities of those in the Executive and Legislative branches, which is why this Judicial language is included in these sections.

This clear intent here is that the framers did not hold any branch of government above the laws of the land, but instead chose to institute a separate trial process when the President has willfully broken laws. One can argue the ultimate intent of the framer’s wishes here as “special treatment”, but the constitution is specific on these matters.

Before I continue quoting sections from the Constitution, let me stop here and discuss this “special treatment”. The framers clearly missed here. I understand that they felt that the best Trial by the President’s peers was via Congress, but “special treatment” does, in fact, tend to hold the President above the laws of the land. Where an ordinary citizen is granted no such special treatment, the President is given this “special treatment” after having broken laws of the land. Not only can’t the President be held to the laws of the land, the only power with which to uphold the laws of the land on the President is solely through the House’s Impeachment and Senate’s Impeachment Trial powers. Barring these specific actions and remedies, the President’s actions cannot be held to the general laws of the land, thus the President is essentially given prosecutorial immunity while he holds office, “except in cases of impeachment“. Impeachment is, then, the only legal action and remedies afforded the Legislative branch to remove a willfully criminal President.

Let’s keep in mind that the House’s successful Impeachment and the conclusion of the Senate’s Impeachment Trial are both separate, but part of the same process. The Senate’s Trial portion is simply an extension of the House’s Impeachment resolution. The Senate’s Impeachment Trial cannot exist without the House’s Impeachment. Likewise, the Impeachment process is incomplete without the Senate voting to convict or acquit. In other words, it is a misnomer to call successful Impeachment of a President when the Senate’s conviction has not yet occurred… only half of the process has been completed. Impeachment means both the House’s portion of Impeachment AND the Senate’s Trial to convict or acquit. Only after completion of both houses together is this considered successful Impeachment (regardless of outcome).

However, many believe that completing the successful adoption of the House’s Articles of Impeachment alone is enough to call the President Impeached. No. You can’t call the President Impeached when only half of the process has been completed. The term, Impeached should only be used to describe a President after both portions of the impeachment process (the House and Senate) have successfully fulfilled their duties and obligations to the constitution and both the House and Senate have agreed and Convicted (or Acquitted) the President, thus removing him from office and voting to rescind that person’s ability to ever hold office again or, alternatively, allowing him to continue to serve acquitted. That is what both Impeachment and Impeached should mean. Anything less degrades the Constitution and dilutes its power as a Constitutional body of law. Unfortunately, even the framers have chosen to ambiguously use the term “impeachment” within its text, such as the ever-vague “except in cases of impeachment” phrase.

Dictionaries, however, believe that it is enough to “charge” (accuse) someone of wrongdoing to use the word Impeach. I disagree with this Dictionary viewpoint. The United States was founded on “Innocent until proven Guilty”. Accusing someone of something is tantamount to “Guilty until proven Innocent”. Without successful completion of the Senate’s portion of an Impeachment Trial, the person is being stated as guilty without having been given a fair trial.

Let’s also understand that for a trial to be fair, it must also be expedient. Our constitution requires not only Trial by Jury (“except in cases of impeachment“), there is no specific definition in the Constitution of how fast the Trial must be conducted, just that it is “speedy”. However, we already know that without verbiage stating exceptions in the Constitution, everyone has the right to an expedient trial, which is guaranteed by the Sixth Amendment.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. <sic>

United States Constitution => Amendment VI

As we know from far above, Impeachment is given certain legal exemptions. However, barring specific exemptions, the rest of the Sixth Amendment’s provisions still apply to the Impeachment trial. This is a basic tenant of law. Thus, this Amendment specifically includes the right to a “speedy” and “public” trial. These provisions are not explicitly excluded in any of the Articles above. As we know from Articles above with regards to Impeachment, a “Trial by an impartial jury of the state and district wherein the crime shall have been committed” IS excluded by Article III, Section 2, which empowers only the Senate to perform this Trial. All else remains in full force and effect.

As for “speedy”, as I’ve said above, there is no specific amount of time set by the framers. This is left up to interpretation. Speedy might be a month or two tops. After six months, that would be considered by most as no longer speedy. No one wouldn’t consider ‘years’ as speedy. Common sense here must prevail. Speedy should be defined as whatever it takes to conduct the trial in a fair manner so long as the process is not interrupted by unnecessary and foreseen procedural or logistical delays. It is then on the Court, or in the case of Impeachment, to perform and conduct a Senate Impeachment Trial expediently once all conditions have been satisfied to begin the trial.

Constitution Verbiage

Here we end all the constitution’s language regarding Impeachment. From here, we must consult the House’s and the Senate’s rules to learn more. Here are the House’s rules. Specifically, here’s the preamble of the House’s rules on impeachment…

Impeachment is a constitutional remedy to address serious offenses against the system of government. It is the first step in a remedial process–that of removal from public office and possible disqualification from holding further office. The purpose of impeachment is not punishment; rather, its function is primarily to maintain constitutional government.

Deschler Ch 14 App. pp 726-728; 105-2, Dec. 19, 1998, pp 28107-9.

Lewis Deschler admits that the House’s portion of Impeachment is the “first step” in the Impeachment process. Because there are multiple steps, that means that until all steps are completed, the process is and should be considered incomplete. It also states that Impeachment is not intended to be punishment, but to uphold (and protect) the constitution.

I’d additionally argue that no one is above the law. Impeachment firmly placed within the Articles upholds that viewpoint. The bar for Presidential crime is obviously much higher than those of ordinary citizens, but Impeachment is a power given by the framers to Congress to remove someone who is willfully criminal while holding the office of President.

Some might consider this a naïve point of view. To some extent it is. Assuming that a person elected President won’t and can’t willfully damage to the Constitution is naïve. To diverge a little, the framers are overly trusting. They believe that people placed into these higher levels of power won’t do damage to the very voters who voted them into office. As I said, naïve. The constitution isn’t, by any stretch, a perfect document. The framers were also well aware of this fact, thus the reason it can be amended. The point wasn’t to make the initial document perfect, but to make it passable by those in power at the time. Viewpoints, even then, made it difficult to achieve consensus. Thus, the Constitution is the very definition of a set of compromises which all of those compromises achieved the signing of the Constitution. That’s why it’s not a perfect document. That’s why there are holes. That’s why some aspects are left ambiguous and left open to interpretation.

Lewis Deschler

So, you’re probably asking, “Who exactly is Lewis Deschler?”. Wikipedia describes him best:

Lewis Deschler (May 3, 1903 – July 12, 1976) was the first, and longest-serving, Parliamentarian of the United States House of Representatives. He started his term on February 1, 1927,[1] during the 70th United States Congress following the retirement of Lehr Fess. Prior to Deschler becoming Parliamentarian, the position was referred to as the Clerk at the Speaker’s Table.

https://en.wikipedia.org/wiki/Lewis_Deschler

Wikipedia goes on to say:

Deschler served as the Parliamentarian from 1927 until his retirement on June 27, 1974, during the 93rd United States Congress.[2] He was an important advisor to many congressmen during his employment, including advising House Speaker Carl Albert on the tax fraud investigation of Vice President Spiro Agnew[3] and the impeachment of President Richard Nixon.

https://en.wikipedia.org/wiki/Lewis_Deschler

While in office, Lewis Deschler authored and modified many of the House’s rules on impeachment and how the House conducts the Impeachment process… which has significantly influenced this process and how our present House today manages and conducts Impeachment proceedings. I’ll leave you to search for and find out more about both Lewis Deschler and his contributions to see how the U.S. House manages not only Impeachment proceedings, but other House proceedings.

Senate Rules

Now that we’ve reviewed the House Rules (you have haven’t you?), we need to review the Senate Impeachment Trial rules. More specifically, this section from the document, RULES OF PROCEDURE AND PRACTICE IN THE SENATE WHEN SITTING ON IMPEACHMENT TRIALS:

Upon such articles being presented to the Senate, the Senate shall, at 1 o’clock afternoon of the day (Sunday
excepted) following such presentation, or sooner if ordered by the Senate, proceed to the consideration of such articles and shall continue in session from day to day (Sundays excepted) after the trial shall commence (unless otherwise ordered by the Senate) until final judgment shall be rendered, and so much longer as may, in its judgment, be needful.

https://www.govinfo.gov/content/pkg/SMAN-104/html/SMAN-104-pg177.htm

This is the section that discusses a speedy trial… or, at least, how quickly the Senate must act after receiving the Articles of Impeachment from the House of Representatives. It doesn’t state how fast the trial must progress, but it at least states when the Article of Impeachment must be acted on by the Senate.

Double Jeopardy

Someone asked me, “Why isn’t there double jeopardy on impeachment?” Let’s understand double jeopardy. Double jeopardy excludes a person from being tried twice for, and here’s the important point, the same or a very similar crime.

Trump’s first and second impeachments are not for the same crime nor are they similar. So, even were double jeopardy applicable to the impeachment process, double jeopardy wouldn’t apply in this case. Both impeachments are for entirely separate crimes.

Though, I’m not sure why Congress would ever vote to impeach a president twice for the same crime in two separate impeachments. It doesn’t make sense why this would ever happen. I’m not even sure that congress would ever attempt to do this simply because of double jeopardy.

Congressional Failure

With the above said about double jeopardy, part of the problem that leads to this thinking is the failure of congressional leaders to do their own jobs. For example, if the Speaker of the House fails to submit the Article(s) of Impeachment to the Senate, the process cannot conclude.

This leaves the impeachment process incomplete. Such a failure doesn’t allow the accused to prove their innocence on the charges. Not only may this violate the right to a speedy trial, it leaves the accused effectively marked as guilty. That’s not how our system is supposed to work.

If Congress is serious enough to bring Article(s) of Impeachment against the President, then they should be serious and professional enough to see the process through to conclusion. By not completing the process, those responsible should be held liable and penalized for their failure. Specifically, if the Speaker of the House fails to submit the successfully passed impeachment documents, that should jeopardize their Speaker of the House standing. Meaning, they should be deposed and see another representative appointed. If the Speaker of the House fails to do their job, then it’s important to replace that person with someone who will do the job. It is every representative’s responsibility (and oath of office) to uphold the constitution. Failure to uphold the oath of office means the representative needs to be held accountable for that failure including censure or removal from office or position.

Unfortunately, because congress tends to vote on their own matters to affect how they perform their own jobs, checks and balances tends not to apply in these types of votes. This means we usually see Congress fail to apply such penalties that would ensure people do their jobs while in office. Yet another constitutional failure by the framers to prevent conflict of interest problems like this. I digress.

Exceptions, Pardons and Interpretation

Here’s one big last thought before I end this article. Above, there is an excerpt that defines Presidential powers. Specifically:

… [The President] shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment

United States Constitution => Article II => Section 2

This portion is mostly self-explanatory. Again, the President is given the power to grant reprieves and pardons… except in cases of impeachment. Again, unfortunately, the framers left this statement mostly ambiguous. There are several possible interpretations of this verbiage:

The first interpretation suggests that a successful House impeachment alone rescinds the President’s power to “grant reprieves and pardons”. This means that ANY pardons or reprieves that the President attempts to grant AFTER a successful House impeachment is no longer legal. In other words, the President forfeits his power of pardons and reprieves after a successful House impeachment. I believe this interpretation is only partially correct, so let’s continue.

The second interpretation suggests that the text “except in cases of impeachment” suggests the word impeachment to mean that it requires both the full House and Senate processes to conclude in both impeachment and a conviction. The constitution is unclear on this usage and definition of the word ‘impeachment’, but this is also where logic fails.

The second interpretation then suggests the following conditions must be met:

  • A house impeachment must occur
  • A senate conviction must occur
  • Once a conviction occurs, the sitting President will be removed from office
  • A conviction might also prevent the then former President from running for office again

Once a President is convicted and removed from office, there’s no need to request surrender of the pardon power.

This third even more narrow interpretation of “except in cases of impeachment” applies only to offenses covered by the impeachment itself. That’s not specified in this clause. That’s an interpretation and that interpretation seems incorrect. Applying the second interpretation to the third, a President who is fully impeached and convicted can no longer issue pardons and reprieves anyway because they will have been removed from office. Therefore, there is no logic to this interpretation. Again, the framers would have realized this glaring logic error. So…

A fourth interpretation strongly suggests that the framers did realize the above logic error in the second and third interpretations AND they further understood that there is a delay between the time the House passes the impeachment article(s) to the Senate. The framers understood this two house setup can cause delays in the process. This delay leaves the President in power to continue office duties until the Senate Trial begins and concludes. A trial is a trial and can last weeks mulling over evidence. Thus, forfeiture of the power of pardons and reprieves is intended not narrowly for offenses related to the impeachment itself, but for all pardons and reprieves of any kind until the Senate trial concludes. This logic makes the most sense from the framers perspective to prevent the President from passing a flurry of pardons of any kind, which may conceal pardons and reprieves related to the Impeachment. This surrender of power also renders self-pardons for any reason impossible. It the trial acquits, there’s no need for self-pardon. If the trial convicts, the President is removed from power.

This clause’s verbiage then fully implies that the power to grant pardons and reprieves is entirely surrendered after a successful House impeachment. I believe that this is truly what that the framers had intended. Why? Because without this clause, an impeached President can pardon not only themselves for their impeachable offense(s), they can pardon anyone else involved in the action that caused the impeachment. The point here is to stop the President from using pardons and reprieves to avoid Senate prosecution for themselves and their accomplices, regardless of whether the pardon or reprieve appears related or not. This clause additionally prevents “out of sight, out of mind” and “flurry” pardons and reprieves after the House successfully impeaches, but before the Senate trial concludes. The House and Senate should be focused on the Impeachment process, not on reviewing every pardon and reprieve for relationships to the Impeachment. Halting all pardons and reprieves until the Senate’s trial concludes makes the most logical sense and keeps Congress’s focus on the Impeachment, not on Presidential diversions.

Clearly, if the Senate trial concludes in acquittal, then the impeachment is nullified and all powers are restored to the President. If the Senate trial concludes in conviction, then the President is removed from office thus preventing any further pardons and reprieves by that action.

Currently, I believe that the “except in cases of impeachment” verbiage is being taken too literally to cover only and narrowly such pardons and reprieves that appear directly related to the specific “case” of the impeachment itself. I don’t believe that this extremely narrow interpretation was the framer’s intention. Instead, as in the fourth interpretation, I believe the framers intended this phrase to see the President fully surrender the power pardons and reprieves until both the House and Senate conclude both portions of the impeachment and conviction process. This does two things:

  1. It forces congress to abide by a “speedy trial” to…
  2. Quickly give the President back all powers afforded the position or remove an offending President from power

One last word for this verbiage. This verbiage appears intended as a forward looking statement. Meaning, it halts future pardons and reprieves from the date the impeachment is passed by the House. It isn’t intended to touch past pardons or reprieves issued prior to the date of successful impeachment. This makes logical sense because it is assumes that the President’s actions prior to successful impeachment are sincere and trustworthy. That means all past pardons and reprieves should be left standing. Nullifying past pardons and reprieves prior to impeachment could be exceedingly difficult to “undo”. I don’t believe the framers intended for this exception to encompass past actions and/or retroactively apply to all past pardons and reprieves.

Putting it all Together

What does all of the above really mean for Donald Trump’s second impeachment? Some have theorized that because Donald Trump is no longer president that the Impeachment proceedings should be dropped and/or isn’t constitutional. That’s not how legal agreements work. They don’t just disappear because one small piece is unenforceable. Typically, if a condition presents that nullifies a portion of an agreement, the remaining portions of the agreement remain in full force and effect. To extrapolate that to the constitution, stating that because Donald Trump is no longer President means that the impeachment section is no longer valid. Let’s understand why this argument might or might not apply.

That argument would be true if the impeachment proceedings were to begin AFTER his exit from office. However, even though Donald Trump’s presidency has ended, this fact doesn’t nullify the impeachment proceedings that constitutionally began while he was still in office. Because the two constitutional remedies for impeachment include 1) removal from office and 2) prevention of holding future office, only one of these two remedies is nullified by Donald Trump’s exit from office.

What that means is because the process began while Donald Trump was still President, the process is still valid after his exit from office. To say otherwise is like saying that because you ran a red light and because that condition no longer exists, you aren’t in violation. No, you’re not presently in violation, but you WERE in violation at the time you ran the red light. Not being in violation now doesn’t absolve you from having been in violation at the time that you ran that red light. If law allowed for a “now” concept only, no one could ever be held accountable for past deeds. This is why this legal precedent, usually defined by a statute of limitations, is applicable in nearly every legal circumstance. Not all crimes have statute of limitations, however. Those that don’t usually mean you can be tried for that crime at any point in time. Thus, this legal concept is applicable to Donald Trump’s impeachment.

Additionally, law doesn’t allow for the “now” argument. This argument doesn’t apply to running a red light (unless the statute of limitations has expired) and it doesn’t apply to Donald Trump’s change in President status. He WAS President at the time when his “high crimes and misdemeanors” occurred. That’s what matters. His change in status does NOT matter. Further, because “step one” of the Impeachment began while Trump was in office as President, Congress must now do their duty and complete this process regardless of Donald Trump’s change in status. This process is now (and was then ) already underway .

Sure, Trump can no longer be removed from office as one of the two remedies, but the remedy to prevent him from ever holding office again must still be decided by the Senate. For the Senate to not to do their duty to uphold the remaining “in force” portions of the Constitution means those Senators are not upholding their constitutional oath and duties of office. Regardless of the Senate’s outcome of the Impeachment trial, it must be urged to complete this process. Without completion of this process, the constitution is weakened. The point to the constitution is to empower those who are tasked to do the will of the people to uphold the will of the people and simultaneously uphold the statutes defined by the United States Constitution.

To do otherwise, such as not completing the impeachment, only diminishes the power of and serves to dilute the function of the Constitution as the heart and soul of our democracy.

Flurry of Pardons on the Way Out

As for Donald Trump’s over 100+ pardons on his way out of office, these pardons and commutations should be considered invalid based on the fourth interpretation (above) of Article II, Section 2’s “except in cases of impeachment” clause. Since he had been impeached by the House prior to his final flurry of pardons and reprieves, all of those pardons and reprieves should be invalid because this clause sees to his surrender of that Presidential power for the duration of the Senate’s impeachment trial. Further, since Trump is no longer in office, he won’t be able to redo those 100+ pardons and reprieves, even should the Senate trial conclude in acquittal. I won’t get into what this interpretation means for his first impeachment as that only serves to heavily muddy these already extremely muddy waters.

↩︎

Can Trump actually ban TikTok?

Posted in banning, government, spyware by commorancy on August 1, 2020

There are two sides to this question. Let’s explore both sides.

Technological Ban

Could TikTok actually be technologically stopped from working? Yes, and to be honest, it wouldn’t take that much effort, though it will take some time. Let’s explore how this works.

Domain Name Service (DNS)

DNS is a fundamental internet service that maps Internet names, like google.com, into an IP address, like 8.8.8.8 (which is Google’s DNS server IP address, actually). When you type in a name into the address bar of your browser, DNS converts that name into a numeric IP which is how your browser then connects to and serves you (and your browser) that web content.

This same system applies to all apps including apps like TikTok. When you launch an app on your phone, the app then uses DNS to resolve its service into an IP address which then connects to, for example, TikTok’s servers to begin serving you (and the app) its content.

DNS is the Achilles heel of the internet. It is both a cornerstone and a single point of failure. If DNS fails, then apps fail to connect to their required services.

This is the first touch point where Donald Trump could target. Donald Trump can mandate that the registrar who operates the domain tiktok.com drop serving DNS for this domain… assuming it operates within the United States (hint, it doesn’t).

Further, the secondary non-authoritative DNS system (those servers operated by your ISP or phone provider) relies on caching (or temporary memory storage with expiration timers). So long as the timer hasn’t reached zero, DNS will continue to serve content for that domain based on what’s in the cache rather than asking the authority each time (much faster performance). However, most domains have, at most, a 24 hour countdown timer on cached data. At the end of that 24 hour period, the cached data must be renewed into the cache. If the registrar has disabled DNS resolution for a domain, the cache will fail to renew and the service will go offline.

What that means is that as caches around the Internet slowly expire after the domain registrar has pulled the DNS plug, TikTok will stop working.

The difficulty with this request is which registrar handles this domain. It appears that the tiktok.com domain is operated by the registrar ename.com. Visiting the ename.com registrar’s domain shows that it’s written in Chinese. Since this domain and its IP space is registered and operated outside of the United States, Trump may find it hard to get the registrar to do anything for him.

Even still, Trump could request (via executive order) U.S. based Internet Service Providers to block the tiktok.com domain from being served within U.S. bordered DNS servers. See ISP blocking below for more on this.

App Store

Donald Trump can further request both Apple and Google to remove the TikTok app from each respective app store. This action doesn’t stop the app from working for those who have downloaded it already, but it does stop new users from downloading it. It also means no more app updates for this app.

When Apple or Google release a new operating system update, they can then stop the app from working entirely. In fact, these OS creators could, in fact, wipe the app from any remaining devices with it still installed. However, they can also simply block the app from launching. However, this part can only work if Apple and Google release updates that explicitly perform this operation and that both of these companies agree to doing this in the first place.

Internet Service Provider (ISP) Blocking

The third avenue that Trump can seek requires ISPs to block network access to TikTok’s servers within the United States. This requires contacting and requesting this action of many ISPs all throughout the United States, including all phone carriers like AT&T, Verizon, T-Mobile and Sprint. This is a long tail request and could take weeks to see roll out. This one also has a low probability for success as ISPs are notorious for not wanting to be told what to do or how to run their networks. This particular request is not one that will work quickly or, indeed, at all in some cases… until the DOJ brings action against ISPs that refuse to comply.

In addition to blocking access at the network level, he can also request DNS blocking for the tiktok.com domain within United States DNS servers operated by ISPs. Basically, an ISP double whammy… assuming ISPs agree (or are forced to agree) to these terms.

App remains functional?

For a time after Donald Trump requests DNS and network IP blocking, the app could remain functional on devices that have it downloaded. Why? Because DNS has up to several day caching in combination with the fact that network IP blocking can be circumvented by the use of a VPN. Though, exactly how many kids are going to run out and buy a VPN service just to use TikTok is unknown.

If Donald Trump can get all four actions lined up (the first three at least) as follows:

  1. App removal
  2. IP network blocking
  3. DNS blocking at the registrar
  4. Secondary DNS blocking within U.S. ISPs

Then, the app may stop working as early as 24 hours for many and for as long as a week for outliers. It is also dependent on how long it takes for each of these steps to be completed. Some companies require long convoluted internal processes and testing to avoid inadvertent screw ups before changes are allowed to proceed.

All of these technical measures are ALL doable. They will all work IF everyone complies (and that’s a tall order).

The most damaging of these four banning steps is seeing Tiktok removed from the app store. If Trump can get the app removed from the stores, this cripples TikTok’s ability to gain new users. That means that for a time, users who have already downloaded the app can continue to use it. But, as they buy new phones, restore their phones before it was installed or if they accidentally delete the app, the app is gone forever. No more TikTok on that phone device.

Removal from the app store also means no more updates. As Apple and Google roll out OS updates, they can invalidate TikTok’s functionality. An OS update can see a small banner pop up that says something similar to “This app is no longer compatible with this device” and prevent it from launching. The only option the user has at that point is to delete the app and move onto something else. If you can’t launch the app, then it’s useless.

This step, by far, is the simplest step to banning an app. It only requires two touch points: Apple and Google. That also assumes that both Apple and Google would be willing participants in this action. They may not. If they choose to challenge Trump’s legal authority to request such actions.. that leads me into the second half of this article.

Legal Authority

I guess the biggest question on people’s mind is, “Does Donald Trump have the authority to ban an app like TikTok within the US?” The short answer is, “I’m not sure”. Trump’s executive authority powers do allow him to write and execute executive orders.

Wikipedia states of Presidential Executive Orders:

Article Two of the United States Constitution gives the president broad executive and enforcement authority to use their discretion to determine how to enforce the law or to otherwise manage the resources and staff of the executive branch. The ability to make such orders is also based on express or implied Acts of Congress that delegate to the President some degree of discretionary power (delegated legislation).

the Wikipedia article further goes on to state:

Like both legislative statutes and regulations promulgated by government agencies, executive orders are subject to judicial review and may be overturned if the orders lack support by statute or the Constitution.

That means that an Executive Order can be challenged via judicial review and may be overturned if unconstitutional or lacks support by statute. And, lacking support by statute may be Trump’s biggest hurdle.

However, the Patriot Act gives the government and, in general, the President broad powers with regards to national security. If he deems TikTok a threat to national security and deems it illegal surveillance, it may invoke clauses under the Patriot Act which would allow him to write an Executive Order supported by the Patriot Act.

Yes, this is all convoluted and tenuously threaded, but it may have enough binding weight to hold together under scrutiny via judicial review.

That’s not say that TikTok is in any way performing surveillance via its app. But, seeing that it was an app developed in China, it is entirely possible that it does contain illegal surveillance mechanisms, otherwise known as spyware.

TikTok as an App

TikTok may seem an innocuous app on the surface. You use it to create a funny small video clippets (ha, just coined a new term) and then upload it for all to see. What you don’t know is whether this seeming innocuous app is spying on you when you’re not using it. You must give this app permissions to your microphone, camera, location and possibly other access. The app can turn on these devices at any time it so chooses, even if when you’re unaware. If you have given any other access permissions, such as access to your Photo Gallery, Clipboard, Contacts or other points of permission, it may have blanket access to far too much private information about you that it can feed to China.

Even if you have installed TikTok once, that data may have been shared back to someone in China. You have no idea exactly what this app is doing under-the-hood. The same can be said of many apps in the app store. However, China is under no obligation to uphold data privacy laws in the United States. If your child has installed the app, it could feed all manner of private data about your child back to China.

U.S. Company?

TikTok apparently has a U.S. presence, but if that presence doesn’t have a hand in the creation, maintenance or dissemination of the app itself, the U.S. arm may not be violating any laws if the app does unsavory things outside of its stated and intended purpose.

Even though it seems TikTok does have a U.S. presence, the company itself seems to be heavily backed by Chinese companies. Since the President’s announcement regarding a potential TikTok ban, this company has quickly attempted to divest its Chinese interest from TikTok and allow it to become a wholly owned and operated U.S. business. That may be too late for this company and this app.

Honestly, sharing tiny entertaining videos of your silly antics is really not an essential part life. It’s fun to watch, but it’s overall something to be watched and forgotten. In other words, none of the content on TikTok is in any way meaningful or, indeed, useful. It is briefly funny content that might elicit a few laughs and then you are encouraged to move on to the next.

What Wish is to trashy Chinese merchandise, TikTok is to trashy occasionally funny clippets. They’re both cut from the same cloth, but cut from different ends. I’ve watched many TikTok videos and I find most of them no more entertaining than watching a TV commercial. TV commercials are, in fact, better filmed and many times better written.

Ultimately, if TikTok is banned, it won’t be missed in the long run. Oh, it will be immediately missed by the tweens and teens alike who rely on that sort of thing to get through the boredom of their day, but even this age group will quickly forget and move onto the next app.

TikTok is ultimately another social media fad riding a temporary wave that will eventually surf its way into the next app fad, and far away from TikTok. A Presidential ban may simply speed this process up exponentially and cut short TikTok as a fad.

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The U.S. in Peril

Posted in economy, government, Health, politics, security by commorancy on March 19, 2020

book-burn-1920I really didn’t want to write this article, but it must be written. Unfortunately, the US (and probably other countries) have come to a crossroads. As they say, the truth will out…. and here it comes. Let’s explore.

Brutal Truth

These lockdowns and shelter-in-place orders have caused many, many small and medium businesses to shutter their doors and lay off staff. They’re not closed for only a few days, but for potentially weeks and possibly even a month or two.

Practically no business is prepared to run without income for weeks, let alone months. It’s no wonder, then, that business owners and operators are laying off so many of their workers. You can’t continue to hold onto staff when you can’t even pay your own business’s lease and bills. This is just the tip of this iceberg.

You just wait. It gets worse. Much, much worse.

Unemployment

It is theorized that as many as 20% may become unemployed due to COVID-19. I’d guess that this is a conservative estimate and it will go much, much higher than this. 99% of businesses in the US are considered small businesses. This is the highest failure group for an extended lockdown scenario.

JP Morgan Chase writes:

Over 99 percent of America’s 28.7 million firms are small businesses. The vast majority (88 percent) of employer firms have fewer than 20 employees, and nearly 40 percent of all enterprises have under $100k in revenue.

What does this mean for the US? This means that potentially 28.4 million businesses are at risk of permanent closure due to the COVID-19 crisis. That means potentially up to 568 million jobs are also at risk of loss due to COVID-19.

Some small businesses may be able to weather a few weeks of this storm, but not much after that. Again, this situation can (and likely will) get much worse the longer it lasts.

Survival and Economy

With up to 568 million people without jobs, this means that the economy will not only tank, it will implode. The stock market won’t even exist. There will be nothing left of the US economy.

I did say that this can get worse. Yes, it can. And… it can even go beyond this.

Apocolypse

This word is actually defined as “catastrophic change”… with the word catastrophic being the key word here.

Turning out this many people to unemployment means desperation. As people’s ability to feed, clothe and house their families and themselves dwindle, desperate actions will become necessary (at least for some). Once the newly turned Robinhood thugs turn out en-masse to shake down those who “have” to feed those who “haven’t”, it’s going to get ugly. Really, really ugly. In fact, COVID-19 will likely become the least of everyone’s worry.

It will then become mostly about survival of the fittest and who has the “necessary force” to get what is needed to survive.

We haven’t yet reached this level of desperation as people still have small stock of food, water and can live out their remaining rent, but our society is quickly coming to a turning point. Once rents can no longer be paid, food can no longer be bought and gas can no longer be afforded (or even found), the niceties of our former social world will come to a grinding halt. Then, desperation takes hold.

What will ensue is looting, gangs and these folks being forced to obtain food, water and shelter by force. The currency will no longer be the dollar, but the bullet or knife. Violence is in the US country population’s nature. When it becomes necessary to survive (and it will), then all bets are off.

Martial Law

Yes, the Government can roll its military through and declare martial law to attempt to stem the tide of the new age of lawlessness that will begin, but that can’t last. Eventually, the government itself will break down and fail to be of any use. Those in the military will be conflicted about where to take orders and, indeed, where if any place can they even use the money they are being paid.

If small businesses fail, what can you spend your money on? Will that money even be worth anything? Larger businesses like Target and Walmart may be able to last for a bit longer, but eventually the supply lines will dry up as the small business suppliers close. It will become a vicious cycle that won’t end until the country has entirely unraveled.

Making the hard Choice

The country is at a serious perilous crossroads. It can keep everything closed in order to stem the COVID-19 tide or it can immediately lift the lockdown and shelter-in-place orders and let businesses reopen to save what’s left of the economy.

With COVID-19, we may be forced to let the chips fall where they may. We can’t keep society closed forever. We can’t even keep it down for a few weeks. For the US to continue its way of existence, it must be unlocked and allowed to resume.

Yes, we need to be cautious and vigilant to avoid getting COVID-19, but we can’t let COVID-19 grind the US to a halt and, subsequently, to completely unravel the US’s entire way of life.

We have to consider what’s worse? Perhaps 500,000 deaths from COVID-19 or millions of deaths due to a bankrupt US economy leaving millions homeless? Without an economy, the US can’t survive as a country. Having a president preside over a dead country is like not having a president at all.

Believe me when I say that if the US is forced into martial law, it won’t be long before there’s bloodshed… and that won’t have anything to do with being infected with COVID-19.

As I said, I really dislike writing this article, but the outcome of what can become a very real possibility must be said. Right now, the president is basically saying, “everything’s going to be okay”, but that’s not reality. If these lockdowns continue beyond a week or two, much of our country’s way of life is doomed to vanish forever. Even Hollywood may never be able to recover from this… the biggest entertainment producer in the world will be lost. Without Hollywood and the music business, this country will plunge into a second dark age.

With all of that said, cities, counties and even the federal government needs to reconsider these lockdown actions pronto. Staying locked down for months will tailspin the US into unrecoverable territory. This will force many families into the streets without the means to obtain food, clothing or shelter. The homeless shelters will be forced to shutter because even they can’t afford to stay in business. Literally, the entire country will fall back to “the wild, wild west”. People will be forced to take matters into their own hands to survive.

Now, it is difficult to foresee exactly how all of this plays out, but no matter the sequence of events, the end result will be failure, death and loss of the US way of life. We will turn back into small communities together using local services. We will have to barter to live. The technology we so actively thrive on will cease to exist. The computers will still function, but the internet may effectively shut down as more and more businesses are forced to close. Even cell phones may become a thing of the past as lawlessness and anarchy begin driving survival. Even money may become worthless paper.

Alarmist?

This article may seem a bit alarmist. In part it may be, but it is also grounded in current lockdown reality and is based on where we are headed today, while still in the early stages of these lockdowns. Simply reviewing Twitter, you can already see just how many people have been furloughed or laid off due to COVID-19. This is just the tip of a very large iceberg. News articles show restaurants and other businesses with their doors shut and lights out.

Right now is a perilous time and our government leaders needs to weigh what’s coming if we remain on this course. If we don’t change our course now, there may not be any time left to change this downward spiral.

COVID-19 may, in fact, turn out to be the least of society’s worries. Our society isn’t currently prepared to live and work at home on a semi-permanent basis. It hasn’t ever considered or prepared financially for this eventuality. There are just no work-at-home jobs that pay enough to live. Most businesses can’t afford (nor are they willing) to begin paying people the salaries they were getting when they worked in a company office. I’m not even sure that companies can recover enough at this point to pay those former salaries anyway.

Tailspin

We only need to look at the stock market to understand the ramifications of business closures, layoffs and lockdowns. Clearly, people are selling because they know they will need that money to live. The stock market can’t handle this kind of mass sell off. But, it’s inevitable and it’s only going to get worse before it gets better.

This means way less investing overall and that means less investment capital for businesses to stay in business. Businesses will also need to recover any investments they currently have to pay their own bills also, which means more selling. And, unless this COVID-19 lockdown business is unlocked soon, there won’t be an economy left to save or investments worth holding.

Only the currently richest businesses may be able to weather this storm for any length of time, such as Apple and possibly Google. That is, those businesses with billions in the bank. That also depends on how worthless the dollar becomes. Even then, these rich companies will have to start trimming their own workforce or face a cash hemorrhage crisis.

This situation will likely also tumble salaries massively. It will tumble everything including home values, multifamily rent and even phone bills. Not only will it be a recession, it may become a depression forcing major deflation across the board. One might think deflation is a good thing, but it’s not. When few will be able to afford to pay for much, even at deflated prices, we’re in for a rough and violent road ahead.

Prevention?

Can this combined economic and societal tailspin be prevented? It depends entirely on our governmental leaders. If they can find ways to prop up the local economies while allowing businesses to reopen in safe and effective ways, then perhaps. Unfortunately, I doubt that propping up everything is possible. There are far too many people to attempt to prop up every man, woman and child in the nation. Even the measly $1000 grant from the government can’t possibly help to stem this quickly overflowing tide. The only thing it will do is, in fact, make the situation worse.

How can we reopen safely? That’s the million dollar question. The first thing that needs to happen is to find a way to disinfect people’s clothing and surfaces before they enter any large gathering. This way, when they touch any surfaces within, there’s no chance of leaving latent virus behind or picking one up. Second, we need near instant viral load testing. It doesn’t matter the virus. What matters is that the person has a high viral load of any kind. If a person is carrying a high viral load of any kind, they will be denied access to all social gatherings. It doesn’t matter if the virus is COVID-19, HIV, the flu or a simple cold. We can’t be specific here. Testing needs to be general because it’s too complicated to try to determine COVID-19 specifically. This will weed out super spreaders.

With any high viral load, you can’t fly, you can’t get on a bus and you can’t enter a restaurant, store or any other business. If you’re carrying a high viral load, an isolated medical transport will come to collect you and take you home where you must stay until you can be tested viral load free. If you’re found out and about a second time, you may be jailed. HIV positive people may be a problem in this. But, HIV is also a virus and it does count under viral load. It’s not necessarily spread as easily as COVID-19 appears to be, but it is spreadable.

These actions are the only way we can protect citizens against COVID-19 and still operate society in some kind of normal fashion. Without some semblance of normality resuming quickly for our every day lives, there will be no hope of recovery for not only the economy, but for society in the US as a whole. When TV shows can’t film, when music performers can’t perform, when you can’t go to the movies, a restaurant or even an amusement park and when everyone is scared to even walk out their front door, society grinds to a halt… and that’s where we are now. Society has stopped dead in its tracks.

The things that the US is so known for can’t even be done. All business that revolves around those activities and linked to activities plus the activities secondarily and tertiarily linked will equally suffer. It’s a huge supply chain, with emphasis on the word ‘chain’. When one link breaks, the entire chain fails.

Unless we can figure out a way to kick our society back into gear, fix the chain and keep it going, we’re at the cusp of situation that is bad… very, very bad. So bad that it’s practically impossible to understand or predict just how bad it can really get. Though, we can most certainly guess.

Lawlessness

When there is a large contingent of the working force that becomes not only unemployed, but hungry and homeless, where do we go from here? As the saying goes, “Desperate times call for desperate measures.” What that means is that many people will get desperate to feed, clothe, house and protect their families… and many will attempt to take matters into their own hands to make that a reality, using necessary force if needed. This means I’d expect gun violence and looting to drastically increase.

This lawlessness will drive the government into declaring martial law. Right now, we’re at the cusp. We are teetering on the precipice. But, it won’t take much for that edge to collapse and then society falls in. In fact, we’re currently on the verge of collapse.

Government, Survival, Society and Hard Choices

I urge the governmental leaders to reconsider these lockdowns. Instead, we need to find alternative workable solutions that allow businesses to resume normal operation while attempting to keep them safe from COVID-19.

If we can’t resume a semblance of normal societal operation, we will likely end up in bloodshed. We might even have anarchy on our hands. We could even have more deaths due to unemployment and a deep depression than from COVID-19.

Governments must weigh these risks carefully. COVID-19 is a known quantity. It will kill a number of people just because of what it is. But, attempting to protect every person from it may end up collapsing society as we know it. This collapse could very easily bring about unnecessary violence as people attempt to survive. A societal collapse could even bring about more death, violence and destruction than even COVID-19 and the Flu combined.

When people get desperate enough, they will break into houses, steal food, clothing and use it for shelter. They may even consider killing others to get what they need. They will break into stores and loot. They will break into stores to steal necessities. Is that where we want society? Is that what we want to see? Is that what the current government really wants for its people?

All told, the death toll from violent survivalists could actually kill more people than COVID-19. This risk must be weighed! Letting the virus run its natural course while allowing society to operate may be a better (and safer) choice than having to declare martial law, while attempting to lockdown an entire nation. There are simply not enough troops to do that, which will lead to an even worse outcome. This situation could even trigger a second civil war, except this time it will be between governmental forces and its out of work citizens.

If we let society collapse, all bets are off on how many deaths may occur… not necessarily directly because of COVID-19, but this virus may certainly contribute in some way to that death toll.

This is a serious decision that governmental leaders must consider and they must decide NOW. Complacence and apathy doesn’t work. Strong decisive change must be implemented quickly. It may not be happy news for some, but society can’t be ground to a halt for the 18 months (as some organizations have predicted) for COVID-19 to subside. The US can’t survive an 18 month lockdown. It can’t even survive a 1 month lockdown. We must craft an alternative solution. We must craft and implement that solution NOW, while there’s still time to bring us back from the precipice. There is no other choice.

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Mass Shootings vs Entertainment: What’s to blame?

Posted in best practices, california, government by commorancy on December 21, 2012

Note, my heart goes out to those who were hurt by Adam Lanza’s violent act at Sandy Hook.  This article in no way intends to diminish anyone’s loss that day.

After Adam Lanza killed 27 people at Sandy Hook elementary school in Connecticut, congressional leaders are now aiming their sites on video game violence as a cause.  This knee jerk reaction came about because Adam Lanza was a ‘gamer’.  What child of his generation hasn’t played at least one video game at some time?  I would have been more surprised to learn he had never played video games. Video games are ubiquitous at this point. They are as ubiquitous as TV, the telephone and the Internet. In fact, video games are on telephones. Video games are not in any way a small industry that only a small segment of children play. No.

In fact, most big video game titles like Skyrim, Call of Duty and World of Warcraft today gross far  in excess of the proceeds that even the biggest films gross over their cinematic run.  Most children today play video games in some way or another every day, whether it be on their iPhone, personal computers, a console (Xbox 360, PS3, Wii, etc), Facebook or on a handheld like the PS Vita, PSP or Nintendo 3DX.  Video games are everywhere.

Violent Games versus the Real World

Video game violence has been in games since the early days of video games on computers, like playing Ultima on the Apple II to Nintendo’s Zelda series to Plants vs Zombies to today’s most sophisticated pc and console games like Call Of Duty.  Video game violence is what it is and it’s here to stay. But, there is nothing at all that feels real about playing a video game or in participating in video game violence.  Yes, video games can become an immersive experience at times, but it is so far removed from reality that anyone who is sane and rational can tell the difference between a game and reality.  Note, I did say that anyone who is ‘sane’ can tell the difference.

With Adam Lanza (as with many of the other shooters), there are questions regarding mental state, which brings up a whole separate topic that is unrelated to video games.  We’ll explore that in just a bit.  However, I have been playing games since the Atari 2600 days.  I’ve sold video games and video game units and I’ve owned practically every video game system ever made.  Suffice it to say that violence in video games has never once prompted me to pick up a gun in the real world nor carry or point said gun at anyone (nor any other kind of weapon for that matter).  Not one video game has conditioned, persuaded, caused or in any other way influenced me to do anything violent.  Okay, I have to confess that I have thrown my game controller across the room because the game did something stupid and frustrating.. like crash and lose my game making me start over.  And, throwing the controller across the room was not prompted by the content in the game, but because the game itself was badly designed and caused me to start parts of the game over wasting a lot of my time.  I’d also never throw the controller at someone.  Breaking the controller in half, that’s one thing.  Hurting someone using a gun, that’s something totally different.  Personally, I don’t even own a gun and that’s also my own choice.

Gun Rampages

Let’s discuss some causative factors involving Adam Lanza’s actions.  Note, I cannot speak from personal experience as I did not know the Lanza family personally.  However, based on what I’ve read in the media, here are the issues as I see it.

  • Adam Lanza may have had Asperger Syndrome or some other form of Autism.  This is a form of mental distress.  That is, without a certain level of proper management of the condition, an autistic child can either withdraw and/or act out.  This is the first problem in a series of problems that led to Adam’s actions.
  • Adam was legally an adult at the time.
  • Adam’s mother was apparently an active gun owner.  She had purchased guns from a local gun shop several years prior to Adam’s actions. One thing, however, I am not certain of is how actively she managed keeping those guns safe.  Apparently, however, she didn’t keep them locked up safe enough as Adam was certainly able to gain access to them, load them and carry them to Sandy Hook.
  • Nancy Lanza apparently thought that teaching her mentally ill son how to shoot guns was a smart idea.
  • Adam’s mother had been having some mental distress of her own, perhaps in just simply managing her son’s condition.

The question remains, were video games involved?  Was any type of entertainment media involved?  Unlikely.  So, what did prompt this?  Let’s explore Aspergers just a little.

Asperger Syndrome

Here is an explanation according to Wikipedia:

Asperger syndrome (AS), also known as Asperger’s syndrome or Asperger disorder, is an autism spectrum disorder (ASD) that is characterized by significant difficulties in social interaction, alongside restricted and repetitive patterns of behavior and interests.

Basically, these repetitive patterns keep the mental distress of the person to a minimum, the patterns give the person structure and order and allows the person to function in a mostly normal way.  If new things are introduced, the Asperger’s sufferer can act out, withdraw or produce violent acts.  Let me say that again, without proper management of Asperger’s, the person can act out violently.

I could see, however, an Asperger’s sufferer turning to video games to relieve the condition.  That is, most games are extremely repetitive.  The more repetitive, the better for this type of person.  So, I could easily see how any repetitive video game could provide comfort and stability for someone with Asperger’s.

Access to Guns and Mental Distress Disorder

If any one thing played role in Adam’s actions, it was easy access to Nancy’s guns.  Any mental distress can easily place a person into a state that is surreal or unreal.  That is, they can’t easily tell the difference between reality and delusion.  Once the line between reality and delusion has been crossed, the person may not have any conscience left to understand any actions that may be acted out.  With Asperger’s, something must have changed in Adam’s life that upset his everyday repetitive balance and he acted out.  Apparently, first on his mother, Nancy Lanza three days before Sandy Hook.  Then, killing her on the day of Sandy Hook and then killing 26 people at Sandy Hook.

Nancy, unfortunately, provided him with access to the necessary weapons to make his own fantasy become a reality.  So, off Adam went toting Nancy’s guns to Sandy Hook to commit his violence.

Were Video Games involved?

Let me start by saying that I’ve never played a video game where someone stocks up with guns from their mother’s gun stash, visits a school and opens fire.  So, I would have to say that getting this idea from a video game is definitely not possible.  Where Adam got the idea is anyone’s guess.  Perhaps he watch a documentary on the Columbine massacre?  Who knows?  But, it’s clear that the main problem did not stem from a video game plot.

Gun ownership and mental distress?

Instead of wasting time pointing the finger towards entertainment media as a ’cause’, we should point the finger towards where it belongs, at the gun safe located in a house with a person of mental distress.  Guns and gun ownership comes with a price (and not just a monetary one).  It comes with the price that you are responsible with what happens with the guns that you buy and store.  If you buy guns and store them in a house with someone that has a history of mental issues, then you are responsible for what happens after.  Of course, in Nancy’s case, she’s now dead along with the 26 other people from Sandy Hook.

Gun laws and gun background checks should include checking the background of anyone living in the home (or in proximity) with the person who wishes to buy, own and use the gun.  Anyone who is close enough to have access to the gun needs to also be background checked.  If any one of those persons has a history of mental illness, the gun purchase should be denied.  It’s quite clear that gun access in combination with mental distress is the most likely reason these children rampage schools with guns.  If they hadn’t had the access to the guns, they wouldn’t have rampaged the school with said guns as they wouldn’t have been able to buy the guns as children.

It’s fairly clear that gun ownership laws need to change.  These laws need to prevent gun ownership by anyone who is the legal parent or guardian over anyone with a history of any mental condition or illness.  I also believe that gun ownership should be denied to parents who have children that are not yet legally adults (and especially of children during teen years).  It should also be illegal to store guns in a home of children between the ages of 8 and 17 at minimum, but preferably children of any age.  Of course, if someone has guns already or they were handed down because of a will or other ‘gift’, then these are situations where guns can become present in the face of someone with mental distress.  For anyone purchasing a gun that will live in proximity to anyone of any age, the laws should require mandatory gun safety training for anyone who intends to touch, use or gain access to the weapon.  In fact, gun safety and storage training should be required to even get a permit to own a gun.  It should also be illegal to teach anyone with mental illness to hold, use, access, touch or otherwise handle a gun (or any other weapon).

Clearly, though, there is no real answer to completely prevent this problem.  Allowing any gun ownership can lead to another Sandy Hook.  Gun laws can only do so much without outright banning guns, but that cannot be done in the US because of the US Constitution’s second amendment which guarantees the right to ‘keep and bear arms’.  So, without repealing the second amendment, there is no real answer to the issue of these mass violence events.  Even if violent video games and other entertainment were banned tomorrow, the violence would not stop as gun ownership and mental conditions would simply continue to be influenced by other means (news, TV shows, movies and the like) and people would still act out.

Prevention?

Could Sandy Hook have been prevented? Maybe.  Maybe not. If Nancy had recognized the signs early enough (as in 3 days earlier when Adam acted out on her), she might have had him arrested or otherwise detained.  However, since Adam was an adult at the time, that issue brings up an even more serious question about mental illness. However, the US does so little to actively manage people with mental illness, especially when they reach adult age, I’m not sure this could have been completely prevented.  It’s clear, though, that guns and mental illness do not mix, especially those with Asperger’s, but any person with paranoid delusions could act out violently. We need better means to determine just who is in a state that could lead to such violent acts. Unfortunately, doctors just want to medicate and send people on their way. That doesn’t fix the problem, it just delays it. We need better from the medical community than, “take 2 pills 3 times a day”.

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SOPA: Is it tortious interference?

Posted in fraud, free enterprise, government, legislation by commorancy on January 18, 2012

SOPA and PIPA take aim at ‘online piracy’.  Of course, the term ‘online piracy’ is defined as deep and wide as the Grand Canyon. How do you define ‘online piracy’?  Well, clearly, taking copyrighted works without the owner’s permission is considered copyright infringement.  We already have laws on the books that protect copyright holders.  For years, these legal mechanisms have worked. Basically, the copyright owner identifies the alleged infringer and takes them to court, then proves the case (in front of a judge) that someone infringed.  So why isn’t this enough?  What changed? The entertainment industry wants more power.

For Hollywood and the music industry, the current legal system is not enough.  Now they want to interfere with businesses’ abilities to continue to do business.  Both the MPAA and the RIAA have tried various mechanisms to gain control over stopping piracy without involving the courts.  The entertainment industry wants direct unfettered access into businesses to force them to stop ‘enabling’ the alleged pirates.  No due process, no courts, no guilt or innocence determination in a court of law.  No, all of this they want outside of the courts.  They want to tell someone to stop doing something without any due diligence or fiduciary responsibility. “Oops, we made a mistake?  My Bad. Tee hee.”

Legalized Tortious Interference

With SOPA, this goes one step further and effectively becomes legalized tortious interference.  So what is tortious interference?  Simply put, it’s when a random third party steps into a two party contract and causes one party in the contract to breach the contract for the other party.  That is, the third party prevents a party in a contract from being able to fulfill their contractual obligations.  How does SOPA do this? It does this by forcing banks or other financial institutions to stop transactions to one of their customers on a third party say alone.  It does this by asking DNS registrars to disable domain names and prevent web sites from functioning without any court determination of guilt or innocence, again, on say alone.

Guilty until proven innocent

Clearly, our legal system and government system is broken.  More than that, our legal system is taking a huge step backwards. Back to a time before the US adopted ‘Innocent until proven guilty’.  Clearly, this mantra means little in the legal system today. With an adoption of SOPA or PIPA, we would always be presumed guilty until proven innocent.  Those in the entertainment industry are severely undermining our legal infrastructure and, if you also happen to be a conspiracy theorist, systematically dismantling it with the help of of the US Congress no less.

Internet Piracy and the end of independent artists

The music and movie industries have yet to prove substantial losses regarding piracy, yet they continue on this legal tirade that attempts to systematically destroy our current legislative system with such overreaching laws as SOPA and PIPA.  So overreaching, in fact, that these acts need no court interaction to remove alleged infringing sites from the internet without any court due process or a trial by peers.  They offer no way to prove innocence easily or to refute any claims alleged.  Simply put, the entertainment industries want to control businesses at a fundamental level outside of the courts.  They simply want to call up GoDaddy and say, “You have a site that is infringing, take it down” and GoDaddy must comply with no questions asked. This is the entertainment industry’s ultimate goal:

  • No legal system involvement
  • Forced compliance
  • No due process
  • No refuting copyright claims allowed
  • Instant removal

Clearly, we don’t want to be here.  No single private industry should have that level of legislated control over any individual or business.  Even law enforcement shouldn’t have that level of control over individuals or businesses without due process.  The entertainment industry, let alone law enforcement should follow due process just like any other individual or business is required to do.  If one industry is given that level of government sanctioned legal control, this country will fall and it will fall hard.

If SOPA or PIPA pass, we will move into a new dark age.  An age without new books, new music or new creative works of any kind (other than those that the music and movie industries want us to see).  The age of independent creative works will end.  The age of creative new web sites will end. Eventually, even Hollywood and the music industry will end because of the negative backlash over the lack of substantial creative content… ultimately leaving no creative works of any kind.  Independent creative people will stop creating because SOPA will have been so completely abused people won’t set up new sites for fear of a SOPA backlash.  Existing businesses will stop doing business with anyone involved in creative works (and let’s hope that includes Hollywood).

Censorship

Part of the SOPA and the PIPA drafts suggest that ISPs adhere to a browsing blacklist.  That is, ISPs would be required to prevent access to sites that are ‘known pirate’ sites.  This is allegedly to target non-US sites, but it could just as easily target sites within the US.  ISPs are and should be treated as a common carrier.  That is, what is carried over their lines is not their responsibility either in or out.  Requiring ISPs to become filters for the government and the entertainment industries is, again, overreaching.  There is no need for this.  I do understand what the MPAA and RIAA are both trying to do. But, instead of using censorship to block sites, they should simply go after the site directly.  Do not censor everyone else’s view of the Internet because of an suspected problem.  Again, this is simply like throwing the baby out with the bathwater.  No, just throw the bathwater out .. meaning, if a site becomes a problem, go after that specific site.  Don’t require ISPs to block access to the site for every subscriber in the US.  Censorship is not an acceptable problem resolution in any form here in the US.  That representatives and senators are even considering this is amazingly chilling.

Chilling effects

Legislation like SOPA is chilling.  It should not ever be passed. This legislation is the wrong legislation at the wrong time and for the wrong industry.  No one industry should wield that level of unregulated power towards any other industry.  The DMCA attempted that level of control but failed to work. SOPA is the next step to come out of the DMCA, but it is far too overreaching. Worse, this type of legislation needs to end before the United States as we know it ceases to exist.  With legislation like SOPA, the US is leading itself to its own demise.  We are, in effect, legislating the US out of existence and SOPA is just one step towards that end.

Consider who the major players are in Hollywood and in the music industry. Most of the players are not even US companies. Again, a conspiracy theorist could have a field day with all of this.

I’m sorry to say that entertainment is the least of this country’s worries, let alone the entertainment industry.  They can fend for themselves.  Boo Hoo, the movie and music industry might have lost 50 cents because someone allegedly downloaded a song or watched a movie online. Show us the numbers!  The entertainment industry already has laws and the court system to back them up with both patent and copyright infringement claims.  There is no need for any further legislation on this front. The US needs to focus its efforts on the economy and keeping this country afloat. The US is not responsible for propping up industries that can’t even properly manage themselves.  Let’s let Hollywood and big music figure out how to manage themselves using the existing laws.

More then that, let’s make these industries first prove substantial losses to piracy before we give them any level of power, let alone this level. Just say ‘No’ to SOPA and PIPA. Write your congressional representatives and ask them to not support this legislation.

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