Last week I pointed out that Donald Trump was refusing to rule out running as a third party candidate. Several days later The Hill received the same response in another interview:
Donald Trump says the chances that he will launch a third-party White House run will “absolutely” increase if the Republican National Committee is unfair to him during the 2016 primary season.
“The RNC has not been supportive. They were always supportive when I was a contributor. I was their fair-haired boy,” the business mogul told The Hill in a 40-minute interview from his Manhattan office at Trump Tower on Wednesday. “The RNC has been, I think, very foolish.”
Pressed on whether he would run as a third-party candidate if he fails to clinch the GOP nomination, Trump said that “so many people want me to, if I don’t win.”
“I’ll have to see how I’m being treated by the Republicans,” Trump said. “Absolutely, if they’re not fair, that would be a factor.”
Typically primary candidates remain in the race until they drop out of money. Donald Trump differs as he will not run out of money, not being dependent upon contributions from others. He has the ability to remain in the race as long as he desires–including after the conventions are over if he should feel that the RNC has been unfair to him.
The survey shows that in a hypothetical three-way race, Clinton is at 46 percent, Bush is at 30 percent and Trump is at 20 percent among registered voters.
Trump takes more support away from Bush than Clinton in such a contest. In a head-to-head matchup, Clinton tops Bush by 50 percent to 44 percent among registered voters.
The current polls suggest that the Republicans will lose if they nominate Trump, or if someone else wins and Trump decides to run as a third party candidate. These numbers can change quite a bit by next November, but in this poll the vast majority of the votes taken by Trump come at the expense of the Republican candidate, and I would expect that pattern to continue. Possibly the magnitude of Trump’s vote will decrease by then, but this suggests there is an excellent chance that he could take at least five to ten points from the GOP candidate, which would probably tip the balance towards the Democrats should the race become closer (as other polls suggest it might be).
The same pattern is likely to also hold should Sanders or someone else manage to beat Clinton for the Democratic nomination, or someone other than Bush be the Republican candidate. It is certainly premature to assume Bush will be the Republican nominee. If he is, the Democratic candidate might not need any help from Trump in winning if Bush keeps taking about phasing out Medicare.
The prospect of Hillary Clinton becoming the Democratic candidate has many liberals increasingly worried considering how out of step Clinton is with liberal views on foreign policy, social issues, government ethics, and the economy. If it comes to it, I believe most liberals will hold their nose and vote for Clinton as opposed to risking another Gore v. Bush campaign in which the Nader votes helped determine the result. However that would be a purely defensive vote for a candidate who does not share our values to prevent a greater evil from being elected. While we are still in the nominating process, many liberals do prefer to see the Democrats nominate a liberal candidate.
There has been considerable excitement around Elizabeth Warren, including recent calls from the Boston Globe, and just recently Lawrence Lessig, for Warren to run. There is even a draft Joe Biden web site. Martin O’Malley might not be as exciting to the grass roots as Warren but he does have one thing going for him. Unlike Warren, O’Malley is actually talking about running.
Former Maryland governor Martin O’Malley took a swipe at likely 2016 contenders Hillary Rodham Clinton and Jeb Bush on Sunday, saying that “the presidency of the United States is not some crown to be passed between two families.”
Appearing on ABC’s “This Week,” O’Malley, who is weighing a possible run against Clinton for the Democratic nomination, called the presidency “an awesome and sacred trust to be earned and exercised on behalf of the American people.”
O’Malley — who at times has been reluctant to take on Clinton directly — declined to say whether he thought the former secretary of state would stand up to Wall Street and other special interests. “I don’t know where she stands,” he told host George Stephanopoulos. “Will she represent a break with the failed policies of the past? Well, I don’t know.”
O’Malley is trying to position himself as a more liberal and forward-looking alternative to Clinton, who holds a commanding lead in early polls among Democratic voters and is expected to make her bid official next month.
Chris Cillizza is among the journalists who see O’Mallley as getting more aggressive against Clinton:
So, what’s changed? Well, for one, O’Malley and his team quite clearly see an opening — no matter how small — caused by Clinton’s unforced error on her e-mails. Ramping up the rhetoric is a probing attempt by O’Malley to see whether there really is a plausible path to beat — or at least seriously challenge — Clinton in a primary. Could a liberal’s liberal without a famous last name have a chance — if that person was willing to push (and push hard) the idea that Clinton represents an unnecessary compromise of ideals and an unnecessary continuation of the dynastic politics that people say they don’t like?
Many front runners have lost in the past, including Ed Muskie, Joe Lieberman, Gary Hart, Rudy Giuliani, and Hillary Clinton in 2008. Clinton does have an unprecedented lead, but she is also in an unusual situation. Her support comes from a combination of her name and gender, but her views are to the right of the party base which turns out in primaries. She has been a poor campaigner, including stumbling in her book tour and response to the email controversy, in addition to the problems in her 2008 campaign. She remains the most likley winner, but not inevitable.
On the other hand, while O’Malley looks like an unlikely winner, the Democrats have often nominated governors who were not well-known nationally before the campaign. This includes ultimate general election winners such as Carter and Bill Clinton, and losers such as Dukakis. O’Malley has a long-shot, but not impossible, chance at winning just by showing up in the nomination race if more Democrats reconsider whether they really want to see the party move to the right, under a leader with a history of poor judgement and loose ethics.
An alternative-universe Downton Abbey which shows what would have happened if Lord Grantham had never lived, in an homage to It’s a Wonderful Life. Features appearances by Jeremy Pivens and George Clooney. It is part of a Text Santa fund raiser on ITV.
Doctor Who followed up last week’s Black Water with an entirely satisfying conclusion in Death in Heaven. Steven Moffat has no qualms about putting in the big scenes with big ideas even if not entirely logical, but he did it well enough that only the most fanatic Moffat haters should object to this episode. Moffat certainly gave us quite a lot in this episode including The Master/Mistress, Cybermen, UNIT, reopening the question of the location of Gallifrey, and a conclusion to the Danny Pink storyline. Osgood returned, this time wearing a bow tie like Eleven (“Bow ties are cool”) in place of her Tom Baker scarf. Many episodes of Moffat’s stories have major scenes in a cemetery, and this happened once again.
As was expected after we found that Missy was the Master, or now regenerated as a woman and calling herself the Mistress, and that the Nethersphere was using Timelord technology to upload the minds of the dead, the claims about the dead on Black Water were all a ruse. It became necessary for the BBC to make this point clear before Death in Heaven was aired due receiving a lot of complaints about the claims about death in the previous episode. Instead of cremation really leading to pain felt after death, cremation just diminishes the size of the Cybermen army. What of those whose bodies had decayed over time? While they cleared up some issues from last week, are there now going to be complaints because of children believing grandma and grandpa were turned into Cybermen?
There was still more misdirection. Moffat lies, and he did it again in this episode, both with the teaser from last week and the words from the characters. He added to the mystery of Jenna Coleman saying there never has been a Clara Oswald in the previews by having her next claim to be the Doctor. They made this almost appear credible by giving her top billing, and using her eyes, in the opening credits. This second time in which she claimed to be the Doctor (previously in Flatline) turned out to be a lie to fool the Cybermen, but it did create some momentary questions for viewers. This was not the only key lie of this episode.
People at UNIT did make some questionable decision. They did start out well, acting like tourists desiring selfies with the Cybermen in order to get close. Then they initiated their protocol in case of an alien invasion of earth and by drugging the Doctor before seeking his help, which is as nutty as Clara’s idea last week of threatening the Doctor to get him to help her after Danny’s death.
It made no sense to drug the Doctor, and then put him in charge, as opposed to seeking his advice, when he lacked any detailed knowledge of the forces suddenly placed under his command. It is worth ignoring this, and the other plot holes, to enjoy learning that the internationally agreed upon protocol in case of alien invasion is put all earth forces under a single President, and that the Doctor would be the chief executive officer of the human race. With all the animosity expressed by the Doctor this season towards the military, he is now in charge of the military, as well as taking on the aristocratic role which Danny Pink attributed to him in The Caretaker.
Once on their flying headquarters, there were more questionable moves by UNIT along with insanity on the part of Missy. Missy’s killing of Osgood, followed by stepping on her glasses, helped establish how insane and evil she is. When Missy made her move, I would think that Osgood might have been smarter not to have fallen for the old trope of getting close to the villain to hear her plan, the guards might have done something, and Osgood might have gotten out of the room as soon as she heard the threat. Besides, this all could have been avoided if they used more than handcuffs to restrain Missy, or even kept her tranquilized. Once the plane was under attack by the Cybermen, everyone else on board might have run to the TARDIS for safety.
Michelle Gomez created a fantastic variation on The Master, along with channeling both Mary Poppins and Marilyn Monroe (Happy Birthday, Mr. President). The Master has often had an insane streak, but probably never to the degree seen in this regeneration. Missy’s actions did seem contradictory with regards to her motives. At one point she seemed to be trying to kill the Doctor, or perhaps she had no doubts in watching him from back in the Nethersphere that he would find some way to escape death. That move of making it into the TARDIS while in free fall must be something he picked up from River Song. We later found that Missy’s ultimate plan was far different from when the Master really wanted to rule the earth in The Sound of Drums. This time the plan was more personal, and more insane.
Missy had no real desire to conquer earth this time, and was more interested in trying to prove that deep down the Doctor is no better than she is. Perhaps blinded by her own insanity, she thought she could tempt the Doctor by giving him an army. The nature of the Doctor has been an ongoing question this season, beginning with Deep Breathwhen the Doctor asked Clara if he was a good man. The following week, on Into the Dalek, the Doctor was called a good Dalek. This week when offered such power, his answer was, ” I am not a good man. I am not a bad man. I am not hero. I’m definitely not a president. And no, I’m not an officer. You know what I am? I am an idiot. With a box and a screwdriver. Passing through. Helping out. Learning. I don’t need an army. I never have.”
It was also verified that Missy was the one who gave Clara the Doctor’s phone number in The Bells of Saint John, again showing her obsession with the Doctor. Just as she found it amusing to see the Doctor with almost unlimited power, she also found it amusing to join “the control freak and the man who should never be controlled.” This was also an important part of her plan to get the Doctor to the Nethersphere: “You’d go to hell, if she asked, and she would.” If she knew this, does it mean that she had intentionally set up Danny’s death?
It is convention on Doctor Who for a character, including the Master, to have some changes in personality with each regeneration. While not going through technical regenerations, Cybermen on Doctor Who have been different at different times in the history of the series. This time instead of using Cybermen to blur the difference between humans and machine, we had a zombie version, in which the dead were used. This technique of creating Cybermen was not completely effective as love allowed Danny Pink to resist Cybermen programing. This did provide an easy solution to the problem, but at least did turn seem more credible when it turned out that Danny was not the only one to resist this programming.
In an episode which did see the deaths of two characters, Danny and Osgood, it was easier to forgive them for sparing Kate after seeing her fall from a lane. Earlier she had spoken to the Doctor about saluting:
The Doctor : People keep saluting and I’m never gonna salute back. Kate : That was always my Dad’s ambition, to get you to salute him back. Just once
Matt Smith, playing Eleven, had once saluted Kate in The Power Of Three, and in this episode Twelve did the same for Brigadier Lethbridge-Stewart, now another Cyberman who resisted their programming. Of course if Danny could resist Cybermen programming out of his love for Clara, there should be no doubt that the Brigadier could fight off any alien programming, and would be there to save his daughter. While some are complaining that this version of the Cybermen breaks from continuity, the episode did show tremendous respect for continuity with its multiple references to previous episodes.
The episode also concluded the story of the kid shot in Afghanistan, with Danny saving him instead of himself. It was somewhat contrived to stipulate he could only save one of them, reminiscent of inventing rules to prevent the Doctor from saving Amy in The Angels Take Manhattan.
Both Clara and the Doctor lied to each other. Clara claimed she would be happy with Danny, and the Doctor claimed he found Gallifrey when there was nothing at the coordinates he received from Missy. This could be seen as a final episode with Clara as companion. I have seen some claims that Clara will be in the Christmas episode, in which the Doctor assists Santa in an attack at the North Pole. If so, this may or may not be her last appearance in light of the rumors she is leaving after the Christmas episode. Maybe she will join the Doctor more intermittently, as Amy and Rory did after they married.
Clara’s story might not be over, but it also might become more complicated for her to travel with the Doctor. What about Danny’s great-grandson Orson, seen in Listen, who will continue the family business of time travel? Maybe the death of Danny has rewritten time, or maybe Clara is now pregnant with Danny’s child. Whether or not Clara returns, it is a safe assumption that the Master, either played again by Michelle Gomez or in a new regeneration, will appear at some time. There is plenty of precedent for the Master surviving anything, including being incinerated by the Cyberman Brigadier.
With or without Clara, I also wonder if Gallifrey will be a factor next season after being teased yet again–either a search for Gallifrey or actual encounters with other Timelords. I was wrong with this prediction about the current season, but Moffat often plays a long game, and very well could have a payoff for such teases planned for a future season.
The Doctor Who Extra for Death in Heaven is above.
Steven Moffat has answered some questions at a screening of the episode. Here are some of his answers from Doctor Who Online:
What made you turn the Master in to a woman?
SM: I’d never written a Master story, and there had been a number of Masters in the show from the amazing Roger Delgado through to John Simm, and I could never think of a way to do it which was interesting.
And then I thought, if you could smuggle her in to the show in plain sight and then land that one… and then once and for all absolutely establish in plain sight, so nobody has any doubt about this whatsoever: yes, Time Lords can do that… it just expands the show a little bit.
You get old time fans saying ‘no! You’re not allowed to do that…!’
And what about Disney fans? She’s Mary Poppins!
SM: Mary Poppins has always been evil!
I don’t know why. To be honest, it was a gimmick at the start – there’s nothing wrong with a gimmick – and I was really fiddling with how on Earth I was going to write it.
Michelle Gomez was on the list for a different part, and she’d been offered another part but couldn’t do it. But then I thought ‘Oh my God, that’s it!’ Michelle is so genuinely barking… I thought there’s never going to be a dull moment on screen! I’ve known Michelle for a long time, because she was married to Jack Davenport who had done Coupling. So I’d known her, I’ve gotten drunk with her, and she actually is like [she is on screen]. That’s toning it down.
So is the Master gone now?
I was delighted back when the wonderful Anthony Ainley was the Master back with Peter Davison, and he would definitively get fried, or incinerated, or destroyed at the end of each story… and he’d turn up at the beginning of the next one and basically say ‘I escaped’. I had no problem with that!
So… observe how I’ve avoided your question! What are the chances?
This is the first time that the Master has worked with the Cybermen…
SM: Oh, but the Master has met the Cybermen before. Would you like me to list them?
But why the idea to team them up?
I’ve never written a Cyberman one, and when I was a kid, I absolutely loved the Cybermen. They were my favourite. I mean, the Daleks were really my favourite, but I pretended that the Cybermen were my favourite to make myself more interesting. Which absolutely doesn’t work.
I’d always wanted to make them creepy and scary. I was aware that there is kind of a problem that the Cybermen are brilliant at standing there, and brilliant at breaking out of tombs, fantastic at breaking out of tombs – they’ve been doing that since 1967 – but when they stand up and actually arrive… they’ve a monotone voice, no facial expressions, and no emotions. That can be tricky. You sort of want to put them with somebody who can be the interface. But I love Cybermen.
I don’t even know why they’re great. The absolutely indispensable part of the Cybermen is that they’ve got handles there… I mean the idea of removing them would be heresy… But what are they for?
But I do adore them. Especially an old show called The Tomb of the Cybermen, which I’ve ripped off many times, it’s just perfect Doctor Who. Glorious Doctor Who.
Tom Magliozzi, one half of the wisecracking Car Talk duo known as “Click and Clack the Tappet Brothers,” has died after complications from Alzheimer’s Disease. He was 77.
Car Talk Executive Producer Doug Berman sent this note Monday:
“I have the sad duty to report today that Tom Magliozzi, one of the hosts of Car Talk, passed away this morning due to complications of Alzheimer’s Disease.
“Tom’s been such a dominant, positive personality amongst us for so long that all of us in the public radio family — and I include our millions of listeners — will find this news very difficult to receive.”
The two retired in 2012 and their show continues to be played in reruns.
There has been a lot of criticism of Obama’s Middle East policy from those of both parties who fail to recognize that we were placed in a situation with no good outcome the moment George Bush invaded Iraq. Leon Panetta has been all over the talk shows promoting his book, which echoes the criticism of Obama from Hillary Clinton.
Seeing the poor logic in these attacks makes me glad that Obama as opposed to either Clinton or a Republican have been calling the shots. It is easy to say that acting sooner would have helped, but no real evidence of this. The situation which allowed ISIS to develop and succeed in Iraq were created by the American intervention and subsequent actions of the Malacki government.
The actual advice given makes no sense. Arming Syrian moderates last year would have just led to increased bloodshed and more weapons in the hands of ISIS. Propping up Malicki longer was a dead-end policy, even if the United States could have stayed despite the desire of the Iraqui government for us to leave. While Panetta has criticized him over not bombing in Syria, Obama showed wisdom, not weakness, when he backed away from the military option when there was a diplomatic option to stop the use of chemical weapons.
The Neocon policies have been disastrous, causing this mess and Obama was right in opposing them, and attempting to disengage from the region. The Clinton/Panetta line is a repeat of the Bush/Cheney line and the current Clinton/Panetta attacks are no more credible than the attacks we are hearing from Dick Cheney
Other attacks are more petty. In a dispute between the White House and Pentagon over not giving the Pentagon everything it wants, I’ll generally side with the White House. It comes down to money on two levels. Now Panetta is cashing in to make money on his book, along with doing Hillary’s dirty work.
…his basic worldview is simple: as long as Obama is launching lots of drone attacks and surging lots of troops and bombing plenty of Middle Eastern countries—then he’s a “strong leader on security issues.” But when Obama starts to think that maybe reflexive military action hasn’t acquitted itself too well over the past few years—in that case he’s “kind of lost his way.”
That’s the default view of practically everyone in Washington: Using military force shows strong leadership. Declining to use military force shows weakness. But most folks inside the Beltway don’t even seem to realize they feel this way. It’s just part of the air they breathe: never really noticed, always taken for granted, and invariably the difficult but sadly necessary answer for whichever new and supposedly unique problem we’re addressing right now. This is what Obama is up against.
Steve Benen had a great response to all the hypocrisy and poor arguments from the right being made by Panetta. He concluded:
The former Defense Secretary last week wrote a piece blaming Obama’s withdrawal of U.S. troops from Iraq for the chaos gripping much of the country. And yet, it was none other than Leon Panetta who defended Obama’s withdrawal policy, repeatedly, before he was trying to boost book sales.
Panetta now says he believes Obama should have pressed Iraqi officials to keep thousands of U.S. troops in Iraq indefinitely. What would those troops have accomplished that they didn’t already try over the last decade? Panetta hasn’t really said. What was Obama supposed to do about the fact that Iraq wanted American servicemen and women out? Panetta hasn’t really explained that, either. Why did Panetta see a residual force as impossible in 2011, only to believe the opposite now? He hasn’t offered an explanation of this, either.
And yet, Panetta just keeps complaining, not just about Iraq, but about U.S. policy in Syria, too, where the former Pentagon chief apparently believes it’s irrelevant that Obama rid Syria of its chemical-weapons stockpiles – weapons that now can’t fall into the hands of Islamic State militants.
Making matters slightly worse, as part of Panetta’s all-out media blitz, he complained to the New York Times about Obama going to Congress last year before intervention in Syria, and then complained about Obama not going to Congress this year before intervention in Syria.
Who knows, maybe this is a terrific public-relations strategy for a guy on a book tour. If Panetta hoped to generate chatter about his book, the past couple of weeks have been a triumph. If he hoped to get White House critics interested in his memoir, Panetta has done what he set out to do.
But those looking for real insights into a sensible national security policy probably haven’t learned much from Panetta’s p.r. campaign.
I would question if Panetta’s motivation is purely to make money from his book. He is also serving the Clintons well, considering that Hillary has motivation to separate herself from Obama but cannot speak out against him to this degree without looking calculating and disloyal. Of course both possible motives are served by the same actions.
At both Langley and the Pentagon he became a forceful advocate for—or, some might say, bureaucratic captive of—the agencies he ran. As CIA Director he pushed back on efforts to expose the agency’s illegal activities during the Bush Administration —in particular, the use of torture (which he had once decried).
At DoD he ran around with his hair practically on fire denouncing cuts to the defense budget in out-sized, apocalyptic terms. The “catastrophic,” “draconian” cuts would initiate a “doomsday mechanism” and “invite aggression,” he claimed and always without specific examples. Ironically, when Panetta was chairman of the House Budget Committee in the early 1990s, he took the exact opposite position and pushed for huge cuts to the defense budget.
For Panetta, principles appear to be determined by wherever he happens to be sitting at any given moment.
However, his irresponsible threat-mongering and his constant stream of gaffes and misstatements (like the claim that the US was in Iraq because of 9/11 and that the war was worth it) masked a stunningly narrow and parochial foreign policy vision. It wasn’t just that Panetta was saying crazy things. As his new memoir shows, he apparently believed them.
The post went on to further criticize Panetta’s current ideas on what Obama should have done, along with his support for using force without adequate recognition of the consequences of using force, or of the positive benefits of Obama achieving an agreement to end the use of chemical weapons in Syria.
Jimmy Carter has also raised similar attacks but the same issues remain that intervention earlier would have probably worsened the situation in Iraq and Syria. It is also easy to criticize in retrospect, but his current attacks are not consistent with previous criticism of Obama whichwere for being too aggressive.
While I have qualms about some of Obama’s actions, from drones to the current bombing, he is looking far better than most of those who are now attacking him.
Having completed countless death certificates over the years I find these to be far less meaningful than the general public--a fact that I bet most physicians are well aware of. The cause of death is often questionable, especially when a patient dies at home and no autopsy is done. In that case we must assume that the medical examiner is correct when they say that the cause of death is natural, and typically attribute the cause to whatever chronic conditions the patient might have. Realistically we know that there are also many other possibilities which might have caused death such as a sudden myocardial infarction, arrhythmia, or pulmonary embolism. This week we saw an unusual situation in which a death was ruled to be homicide years after a shooting, in the case of James Brady. It is certainly a valid argument that he did die from medical problems which arose as a consequence of the shooting, and knowing the common ambiguities in death certificates I see no problem with attributing the cause of death to the shooting.
This has ramifications beyond the cause of death on the death certificate, ranging from adding to the homicide rate to raising the question of whether the shooter, John Hinckley, could now be tried for murder. A couple of attorney bloggers, Doug Mataconis and Eugene Volokh have looked at this issue. Volokh’s opinion is that Hinkley cannot be tried for murder for two reasons:
1. The year-and-a-day rule: At common law, a murder charge required that “the death transpired within a year and a day after the [injury]” (see Ball v. United States (1891), and this apparently remains the federal rule (see United States v. Chase (4th Cir. 1994)). Many states have apparently rejected this rule, given the changes in modern medicine that make it much easier to decide whether an old injury helped cause a death; but though the Supreme Court in Rogers v. Tennessee (2001) held that a court could retroactively reject the rule without violating the Ex Post Facto Clause (which applies only to legislative changes to legal rules) and the Due Process Clause, any such retroactive rejection of the year-and-a-day rule seems unlikely in this case (given that for the rule to be reversed the case would likely need to go up to the Supreme Court, and that in any event the rule had been applied relatively recently, in Chase).
UPDATE: But wait! Hans von Spakovsky points out that D.C.’s highest court rejected the year-and-a-day-rule in United States v. Jackson (1987). I at first didn’t check the D.C. precedents, focusing just on precedents from the normal article III federal system, since Hinckley was tried in federal district court. But Hinckley was tried for violating D.C. law as to the shooting of Brady (though the case was in federal district court because of the federal charges as to the shooting of President Reagan and the Secret Service agent), and by hypothesis would be retried for violating D.C. law. It is D.C. law that would apply here.
Yet Jackson was a 1987 case, decided after the Hinckley shooting. It expressly stated that, as of 1987, the year-and-a-day rule was in effect under D.C. law:
The common law of the District of Columbia encompasses all common law in force in Maryland in 1801, unless expressly repealed or modified. [Citations omitted throughout. -EV] In 1776, Maryland adopted the common law of England as it then existed. Therefore, we look to early Maryland law to resolve the question whether the year and a day rule is law in the District of Columbia.
The Court of Appeals of Maryland has held [in 1974 and in 1985] that the year and a day rule is part of the common law of Maryland because it was part of the English common law in 1776. A division of this court (in an opinion subsequently vacated for reasons not pertinent here) has unanimously concluded [in 1979] that the rule retains its viability in the District of Columbia. In re J.N., Jr., 406 A.2d 1275, 1283 (D.C. 1979).
We follow this reasoning in concluding that the common law year and a day rule is today the law in the District of Columbia.
And the D.C. court (in Jackson) expressly held (based on the Ex Post Facto Clause) that its abrogation of the rule would thus apply only prospectively, to prosecutions after that decision.
What should the effect of that be? On one hand, as I noted above, the U.S. Supreme Court in Rogers held that Tennessee courts could change the rule without violating the Ex Post Facto Clause, so that might undermines Jackson‘s prospectivity-only reasoning. This might mean that the prospective-only rule can be retroactively changed to a retroactivity-OK rule.
But on the other hand, Jackson expressly stated — in a discussion of substantive D.C. law, not of the Ex Post Facto Clause — that, as of 1987, the year and a day rule was still the law in D.C. And the U.S. Supreme Court in Rogers stressed that “perhaps [the] most important” part of the reasons for its acceptance of the Tennessee court’s retroactive rejection of the rule was that, “at the time of petitioner’s crime the year and a day rule had only the most tenuous foothold as part of the criminal law of the State of Tennessee.” The D.C. Court of Appeals’ analysis in Jackson makes clear that “at the time of [Hinckley’s crime] the year and a day rule” had much more than a “tenuous foothold” as part of D.C. criminal law.
So I think that, if Hinckley were tried now for murder under D.C. law (which he couldn’t be, for the independent reasons below, but let’s set those aside for now), he would be tried under D.C. law as it existed in 1981, at the time of the shooting. And, given the D.C. highest court’s analysis of D.C. law in Jackson, that as-of-1981 law would include the year-and-a-day rule, which would make Hinckley substantively not guilty of the crime of murder.
2. Double jeopardy and collateral estoppel: But say the year-and-a-day rule didn’t apply here — hasn’t Hinckley already been tried for the shooting, and doesn’t the Double Jeopardy Clause stop him from being retried? The answer is yes, but in a circuitous way.
a. It’s OK to try someone for murder, even if he’s already been convicted of the attempted murder: If Hinckley had been tried for attempted murder and found guilty when Brady was still alive, he could be tried for murder after Brady died. Indeed, this is pretty much what happened in Diaz v. United States (1912), and this remains the law today, see Garrett v. United States (1985):
In Diaz v. United States, 223 U.S. 442 (1912), the Court had before it an initial prosecution for assault and battery, followed by a prosecution for homicide when the victim eventually died from injuries inflicted in the course of the assault. The Court rejected the defendant’s claim of double jeopardy, holding that the two were not the “same offense” ….
b. It’s sometimes OK to try someone for murder, even if he’s already been acquitted of the attempted murder: Say someone (not as in the Hinckley case) acted extremely recklessly and injured someone else as a result. If the reckless person were tried for attempted murder, he’d be acquitted, because attempted murder generally requires a conscious purpose to kill, not just reckless endangerment.
But say the injured person then dies. The defendant could then be retried for murder, and convicted, because actual murder (not attempted murder) can happen even if the defendant didn’t have a conscious purpose to kill, so long as he was extremely reckless.
c. But the jury’s conclusion that Hinckley was insane is now binding on the government, and thus precludes a retrial for murder: Under the “collateral estoppel” doctrine (Ashe v. Swenson (1970)), “when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” That’s most commonly applied in civil cases, but it also applies in criminal cases, against the government (so long as it’s the same government involved in both cases).
The jury determined by a valid and final judgment that Hinckley was insane, and thus couldn’t be liable for attempted murder. This judgment is binding on the government, and since the insanity defense applies the same way for murder as for attempted murder, it means that Hinckley would now be conclusively presumed to have been insane for purposes of any murder prosecution as well. He would have an ironclad defense to the murder charge, and thus any case against him couldn’t proceed. For a similar case, see United States v. Oppenheimer (1916), though there the defense was the statute of limitations rather than insanity.
(Note that The federal insanity defense has been considerably narrowed since the Hinckley trial — indeed, as a result of the Hinckley trial. But this legislative narrowing can’t be retroactively applied, given the Ex Post Facto Clause.)
So no retrial for Hinckley, despite the medical examiner’s conclusion, and even if that conclusion could be proved beyond a reasonable doubt.
Mataconis concluded his post by saying that, “Ultimately, the question of whether or not murder charges are brought will be in the hands of the U.S. Attorney in Washington, and the District’s Attorney General. As things stand right now, though, it seems as though such charges would be on legally tenuous grounds.”
Why did he do nothing, or next to nothing, about the crazy high price of a college education, the Great Good Thing that he has said, time and again, determines our personal as well as national success? Why didn’t he propose a proper healthcare program instead of the confusing jumble we got? Why not a proper stimulus package? Why didn’t he break up the banks? Or the agribusiness giants, for that matter?
Well, duh, his museum will answer: he couldn’t do any of those things because of the crazy right-wingers running wild in the land. He couldn’t reason with them—their brains don’t work like ours! He couldn’t defeat them at the polls—they’d gerrymandered so many states that they couldn’t be dislodged! What can a high-minded man of principle do when confronted with such a vast span of bigotry and close-mindedness? The answer toward which the Obama museum will steer the visitor is: Nothing.
In point of fact, there were plenty of things Obama’s Democrats could have done that might have put the right out of business once and for all—for example, by responding more aggressively to the Great Recession or by pounding relentlessly on the theme of middle-class economic distress. Acknowledging this possibility, however, has always been difficult for consensus-minded Democrats, and I suspect that in the official recounting of the Obama era, this troublesome possibility will disappear entirely. Instead, the terrifying Right-Wing Other will be cast in bronze at twice life-size, and made the excuse for the Administration’s every last failure of nerve, imagination and foresight. Demonizing the right will also allow the Obama legacy team to present his two electoral victories as ends in themselves, since they kept the White House out of the monster’s grasp—heroic triumphs that were truly worthy of the Nobel Peace Prize. (Which will be dusted off and prominently displayed.)
But bipartisanship as an ideal must also be kept sacred, of course. And so, after visitors to the Obama Library have passed through the Gallery of Drones and the Big Data Command Center, they will be ushered into a maze-like exhibit designed to represent the president’s long, lonely, and ultimately fruitless search for consensus. The Labyrinth of the Grand Bargain, it might be called, and it will teach how the president bravely put the fundamental achievements of his party—Social Security and Medicare—on the bargaining table in exchange for higher taxes and a smaller deficit. This will be described not as a sellout of liberal principle but as a sacred quest for the Holy Grail of Washington: a bipartisan coming-together on “entitlement reform,” which every responsible D.C. professional knows to be the correct way forward.
Frank both ignores the real obstacles which Obama faced and is not very accurate in describing Obama’s record. He forgets that the there was a very good reason that Obama never had a chance to reason with the Republicans–they decided right off the bat that they would oppose anything Obama supported for political reasons. Frank might check out the work of centrists Norman Ornstein and Thomas Mann on how Republicans are responsible for the current gridlock along with this Frontline documentary:
On the night of Barack Obama’s inauguration, a group of top GOP luminaries quietly gathered in a Washington steakhouse to lick their wounds and ultimately create the outline of a plan for how to deal with the incoming administration.
“The room was filled. It was a who’s who of ranking members who had at one point been committee chairmen, or in the majority, who now wondered out loud whether they were in the permanent minority,” Frank Luntz, who organized the event, told FRONTLINE.
Among them were Senate power brokers Jim DeMint, Jon Kyl and Tom Coburn, and conservative congressmen Eric Cantor, Kevin McCarthy and Paul Ryan.
After three hours of strategizing, they decided they needed to fight Obama on everything. The new president had no idea what the Republicans were planning.
There were clear institutional limits on Obama in a system where forty Senators could block the majority on anything. The Democrats had sixty votes for a very brief time due to the delays in swearing in Al Franken and later Ted Kennedy’s death. Even when Obama technically had sixty Senators voting with the Democrats, this included Joe Lieberman and Ben Nelson who would never go for the type of leftist agenda Frank favored.
Obama chose to use his limited political political capital to concentrate on health care reform, passing a comprehensive health reform package after previous presidents from Harry Truman to Bill Clinton were unsuccessful. Ted Kennedy once expressed regret at working with Richard Nixon and instead insisting upon a single-payer system at the time. Similarly Hillary Clinton convinced Bill to threaten to veto anything other than her plan, rejecting a Republican proposal which was very similar to the Affordable Care Act. It would be far better to accept what can be passed and then work to improve it over time.
Sure the Affordable Care Act is a confusing jumble, but that is because it built upon our current system. It would have been better if the system was even more complex and perhaps confusing, including either the public option or Medicare buy-in. Neither could pass because both Lieberman and Nelson opposed them. Obama certainly could have never received sixty votes for a single-payer plan, breaking up the banks, or a bigger stimulus.
Beyond Congress, Obama was limited by conservative media bias on economic matters. Obviously Fox was out there spreading lies and attacking anything Obama wanted to do, but the problems weren’t limited to Fox and its viewers. Most of the media is owned by the wealthy, and much of the news, especially on television, is reported by wealthy television stars. They might not share the Republican views on social issues or their opposition to science and reason (leading to the conservative view of a liberal media) but many of them are quite conservative on economic issues. They were biased towards tax cuts and cutting spending. Media reports on the economy typically stressed the size of the deficit and included the assumption that a reduction in government spending was necessary. Few pointed out the degree to which Republican spending and tax cuts in the Bush years contributed far more to the deficit than Obama’s stimulus spending. The atmosphere was hardly conducive to pushing an even bigger stimulus, regardless of how much more this would have helped the economy recover. He also ignores the degree to which Obama’s stimulus did help bring about economic recovery.
Just as Frank ignores the benefits of Obama’s policies, including the Affordable Care Act and the stimulus, he exaggerates what Obama did not do. No, Obama did not destroy Social Security and Medicare. It is the other party which has been seeking to do that. Offering Chained CPI in exchange for a grand bargain on the deficit might never have been a good idea, but we can’t blame Obama for making a bad deal when such a deal was never made and we don’t know what he would have held out for before making such an agreement.
Obama’s record has much in it to displease the far left. It is doubtful that any other president would have achieved more than he actually did.
White smoke could be seen rising from CBS Headquarters today. CBS will not be going through the same drama which we saw at NBC when Johnny Carson and Jay Leno left The Tonight Show (twice in the case of Leno). There was no consideration of forcing Letterman out before he was ready. One week after David Letterman announced his planned retirement on his own schedule, CBS has announced that Stephen Colbert will be replacing him. While I think Craig Ferguson does an excellent job following Letterman’s show, it was not expected that Ferguson would receive the 11:35 time slot. I do like Ferguson’s show but, if he leaves CBS, it would not be as significant as David Letterman and later Conan O’Brien leaving NBC. I hope Ferguson does remain where he is, providing a choice between his show and Seth Meyers at 12:35.
Stephen Colbert has already said that (as would be expected) he is not going to do the show in character as on The Colbert Report on Comedy Central show. It has been an excellent run, but I am also confident Colbert can do a fine job hosting as “himself.” I do hope that from time to time Colbert, instead of stupid pet tricks, goes back into his stupid conservative character for a skit.
I suspect that Colbert will tone down politics to some degree with the move to a late night network talk show. His liberal credentials are well known after pointing out that “reality has a well-known liberal bias.” Or maybe not. A study at Ohio State in 2009 found that many conservatives took him seriously and didn’t realize he was mocking them.
Here is a selection of one liners from Stephen Colbert when in character, many of which have been featured here as a Quote of the Day:
“Our president has gotten so desperate that he appeared on this website Funny or Die. By the way, ‘funny or die’ is also the ultimatum you got from Obamacare’s death panels.” –Stephen Colbert
“No one has signed up for Obamacare, give or take 4.2 million people.” — Stephen Colbert
“You know what, folks? I miss George W. Bush. That man knew how to sell a war. Obama has hard evidence of weapons of mass destruction and he can’t even get England to go along with it. Meanwhile, President Bush got an international coalition with nothing more than Colin Powell’s reputation and half a test tube of crystal light.” –Stephen Colbert
“Conservatives like me know that in a budget crisis, everything nonessential has to go — whether it’s food for kids who aren’t mine or some other stuff for people I don’t know.” –Stephen Colbert
“It seems like every single day, President Obama finds a new way to waste our tax dollars. I mean, two daughters? Seems a little redundant.” –Stephen Colbert
“Where did we go wrong? The Republicans had everything going for them – a terrible economy, an unpopular incumbent, and a positive message for the American voter: ‘less than half of you are parasites.’” –Stephen Colbert
“Folks, I’m no fan of ‘Sesame Street.’ They expose our children to dangerous liberal ideas like befriending the homeless, two men sleeping in the same bedroom and counting.” –Stephen Colbert
“This is America. We must defend the principles symbolized by Lady Liberty – unless she’s on the pill, in which case, she is a giant green tramp.” –Stephen Colbert
One of Stephen Colbert’s finest moments outside of his show was at the White House Correspondents’ Dinner in 2006. Here is the video of his tribute to George Bush, with full text under the fold: