In recent weeks, five of the seven commissioners running the Public Defender Services Commission have resigned. (One position was already vacant.) The attorney general has secured outside counsel to investigate. The chief public defender has lawyered up. And now the governor has appointed a retired justice of the State’s Supreme Court, Richard N. Palmer, to something – anything – to right the faltering agency.

            In the meantime, hundreds of lawyers in the commission are all but hiding under their desks waiting for the next bombshell to explode.

            Everyone is tip-toing around the obvious truth: Chief Public Defender Tashon Bowden-Lewis has got to go. But calling into question her ability would yield the ugly charge of racism. Race pandering has come home to roost with vengeance. Ms. Bowden-Lewis, you see, is black; she’s demonstrated a card-sharp’s ability to play the race card.

            First, some fundamentals.

            The Public Defender Services Commission is overseen by seven commissioners. The commission is run by a Chief Public Defender. Public defenders are state-paid attorneys located in every courthouse in the state whose job it is to represent indigent folks accused of crimes. The overwhelming majority of defendants charged with crimes in Connecticut are represented by public defenders.

            Enter Tashun Bowden-Lewis, who became Chief Public Defender in 2022. She is the first women of color to occupy the position. She is also a social justice warrior. “She has always provided a rigorous defense for her clients,” Quinnipiac Magazine reported when she was tapped for the job as chief defender. (She is a graduate of the Quinnipiac University law school.) “But her commitment to social just runs just as deeply. Equity, inclusion, fairness, accessibility – they all matter on her watch.”

            Therein lies the rub.

            Nothing should matter more to a lawyer than his or her client. That’s what the duty of zealous advocacy requires. The commissioners and Ms. Bowden-Lewis haven’t seen eye to eye on the matter of appointments within the commission. She has favored appointees who are black. The commission has overruled her, selecting candidates for leadership positions whom the commission regards as more qualified, and who were not, coincidentally, black.

            For this, the commissioners were accused of being racists. Tempers flared. Word has it that Ms. Bowden-Lewis sent her bosses a nasty letter accusing them of racist micro-management. Her human resources chief quit, asserting that Ms. Bowden-Lewis made it impossible to do her job and played the race card so hard that it became impossible for the director, approved by the commission, to do her job.

            In normal times, you fire an employee who can’t take direction.

            But these aren’t normal times. In the brave new world of diversity, equity and inclusion the “historically marginalized” get special treatment in the name of “systemic reform.” We’re all supposed to examine our “implicit biases” and “check our privilege,” or some such. The result is an ugly sort of tolerance of what one news report calls “racial favoritism.”

            So rather than be called a racist by a black bully in her playpen, five commissioners, all of whom are white – two superior court judges, an experienced criminal defense lawyer, a lawyer in private practice, and a social worker – quit. They walked off the job, “woke” reputations intact. Only one commissioner remains, a former state legislator who just happens to be black.

            And now we have a leaderless commission; a feckless governor appointing a former Supreme Court justice to come to the rescue and do something, anything, to stop the bleeding; a private law firm investigating; and, threats of litigation all around. Ms. Bowden-Lewis has all but declared: “You can’t fire me, I’m black.”

            In the meantime, morale among public defenders statewide has plummeted.

            I pity the poor defendants who wonder whether their lawyers are up to the task in this new racialized hot house.

            Connecticut deserves better than this.

            Black privilege is a thing. Race matters. But you don’t get to play lord of the new plantation because you were born black. Diversity, equity and inclusion are variables in the equation we used to arrive at justice.

            But equality before the law matters. Ms. Bowden-Lewis has managed to assert racial privilege in a shocking and repulsive manner. Rather than call her bluff, terrified commissioners quit. This racial bullying won’t end well for anyone involved.

            If Ms. Bowden-Lewis can’t do the job she should quit. I’m sure the Yale Law School would hire her in a heartbeat. She could give a symposium on racism in public agencies. It would be quite the ironic performance.

            The officers involved have been fired and charged with serious crimes: murder and kidnapping among them.

            It’s simply another case of police brutality, a shocking disregard of the basic rights of black men – Mr. Nichols, you must know, was black. Never mind that the officers who assaulted him were black. When it comes to systemic racism, it’s turtles all the way down. Racism explains everything, these days, even black on black violence.

            Maybe that’s right, but there are questions, questions what will likely be raised at any criminal trial resulting from Mr. Nichols’ death three days later at a local hospital. The pity is that the Memphis Police Department fired the officers before asking these questions.

            First, why was Mr. Nichols stopped? And why is the first video we see one where not one, but two police cars are next to Mr. Nichols’ stopped car? Is there no audio tape, no body camera from the first officer on the scene? (The video we see is worn by the second officer to arrive.) Looking at the videos Memphis released it looks like Mr. Nichols was stopped for no reason at all. If that is so, it is outrageous.

            But in the fourth video Memphis chose to release, one officer talks about trying to stop Mr. Nichols while Mr. Nichols was driving. Mr. Nichols reportedly swerved the car he was driving as if to strike the officer’s car. The officer contends he hit his siren to signal the need to stop before Mr. Nichols swerved. If that is true, and it may not be, that might explain the aggression on the part of officers as they approached Mr. Nichols’ car.

            Second, why did officers want to stop Mr. Nichols in the first instance? Again, no explanation – zero. An officer on the fourth video released by Memphis talks about not finding anything in Mr. Nichols’ car, suggesting that Mr. Nichols might have thrown “it” while he was running after the first struggle with cops. What is the “it”? What did officers think they saw?

            Third, did any other officers involved in the extraction of Mr. Nichols from his car follow use of force policies they were trained in? Mr. Nichols was issued verbal commands, he was told to get on the ground, hand holds were used to push him down, as Mr. Nichols struggled and resisted, he was tased and pepper-sprayed. I’ve handled scores of police misconduct cases: this all looked by the book. Officers tried and failed to get his hands behind his back, as they are trained to do with a struggling detainee. Still, Mr. Nichols managed to get on his feet and run. Presumably, officers in Memphis had good cause to give chase.

            Fourth, once Mr. Nichols was found and apprehended at the corner of Ross and Castlegate Lane, how many times and over what period of time was he commanded to show his hands to officer? I counted close to 40 over several minutes. Officers would have good reason to escalate the use of force if they were, in fact, in a struggle with a resisting man at close quarters. One officer said after the melee that Mr. Nichols grabbed for his gun. That may be retrospective bluster, but as the struggle occurred, officers had good reason to escalate the use of force. Officers are trained that close quarter struggles can be deadly.

            Fifth, how many times was Mr. Nichols tasered and sprayed? How are officers trained to think about a subject who is not subdued by these tools? Did they have reason to escalate the use of force yet more, including the use of a baton? And, if so, did Memphis fail to provide guidance on blows to the head? It’s hard to justify kicks to the head.

            Sixth, we’ve heard something about the autopsy commissioned by Mr. Nichols’ family, but we have not seen the state’s complete autopsy. What killed Mr. Nichols? What was his blood chemistry? He appears lucid and non-intoxicated when he his dragged from his car. But were there narcotics in his system that might have contributed to his reaction both the force used against him and to his reaction to being tasered?

            The few videos we have been shown are disturbing, but they don’t settle what happened to Mr. Nichols and why it happened. Officers are trained in the use of force to subdue a resisting subject. They are taught to use reasonable force. Was this force reasonable given the totality of the circumstances the officers faced on the scene? 

            In 1984, the United States Supreme Court decided a case called Graham v. Connor. The Court’s analysis of the use of force, an analysis rooted in fourth amendment limits on reasonableness, sheds some light on the questions to be asked now in Memphis. The Court’s language is a warning to the Friday-evening quarterbacks who were so quick to rush to judgment after Memphis released its videos.

           “The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, and its calculus must embody an allowance for the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation,” the Court said.  

           “Our Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it…. “The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight,” the decision reads.`

           The Court also said: “The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.”

           And here is the kicker and why I hope the Memphis five elect to go to trial in the criminal cases rather than enter a plea: “‘Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers… violates the Fourth Amendment.” 

            In other words, context matters. Memphis didn’t give any. Questions remain about why the officers acted as they did. There has yet to be a complete inquiry into what happened to Tyre Nichols. Memphis’ rush to judgment is unseemly.

            How much, if anything at all, can I say about the ongoing proceedings?

            I note first, an obvious, but immaterial truth: the trial is not about the Proud Boys at all. The organization is not on trial. Five defendants are: Enrique Tarrio, Ethan Nordean, Zachary Rehl, Dominic Pezzola and, my client, Joe Biggs. All were members of the Proud Boys on January 6, 2021. All face serious charges. These five men stand trial. They stand trial for their actions as leaders of the Proud Boys. Drawing a distinction between them and the organization to which they belonged is what lawyers like to call a distinction without a difference.

            It’s the sort of fiction on which legal proceedings often hang.

            Here’s another conundrum presented by the case. As a lawyer engaged in the case, I cannot say things out of court that will be disseminated by “means of mass public communication and will create a serious and imminent threat of material prejudice to the proceeding.” That’s enshrined in Rule 3.6 of the Rules of Professional Conduct governing the conduct of lawyers in the District of Columbia, where this case is being tried. The commentary to the rule, a note explaining what the rule might mean in practice, reads as follows: “It is difficult to strike a proper balance between protecting the right to a fair trial and safeguarding the right of free expression, which are both guaranteed by the Constitution. On one hand, publicity should not be allowed to influence the fair administration of justice. On the other hand, litigants have a right to present their side of a dispute to the public, and the public has an interest in receiving information about matters that are in litigation. Often a lawyer involved in the litigation is in the best position to assist in furthering these legitimate objectives. No body of rules can simultaneously satisfy all interests of fair trial and all those of free expression.”

            A classic example of violations of the rule are broadcasting from the courthouse steps information a lawyer knows is not admissible as evidence. But, given the law, what is the harm in that?

            Judges instruct juries in all cases to avoid the media, and not to read or listen to anything about the case on which they are sitting. The jury in this case was selected as the House Select Committee on January 6 released its report. It’s difficult to imagine a person with eyes and ears not seeing or hearing about the event, especially in D.C., a company town where the business is government. But, as the law says, a properly instructed jury is presumed to follow the law.

            A presumption is really a default assumption. You begin consideration of an issue by explicitly applying a factual assumption Thus, in the case of a jury, it is assumed that jurors will and do follow a judge’s instructions. It is a rebuttable presumption that can only be overcome by evidence that application of the assumption is unwarranted. Thus, in the Proud Boys trial, jurors are presumed not to read, see or listen to any coverage of the trial. They are to decide the case based solely on the facts and evidence presented in court.

            If we truly believe this, then why the need for Rule 3.6? What harm would come were I to let my hair down – and there is plenty of hair there – and stand on the courthouse steps to defend my clients in the court of public opinion? Jurors are presumed to follow the law, aren’t they? So let me speak the truth as I see it, without fear of judicial consequences.

            In some jurisdictions, but not in D.C., there is an exception to the blanket prohibition expressed in Rule 3.6 – lawyers are permitted to rebut negative pre-trial publicity that they did not themselves generate. Call my client an insurrectionist, and I might respond with a defense. What would happen if I responded aggressively to media coverage just now, when the courthouse is crawling with reporters looking for a scoop?

            Thus far, I’ve not crossed that line. 

            I close noting the following. The jury has been instructed to avoid the press. I am seemingly enjoined from speaking, but application of that rule makes no sense. If jurors are presumed to follow the law, then what would be the harm in speaking? Is it the risk that a juror might break the rule, and prove the presumption to be another of the silly fictions with which the law is riddled?

            I note this tension without having decided how it applies concretely in the Biggs case. If my comments on the case seem cryptic, you now know why. The safe course is merely to report on what happens in the courtroom in open court, without interpretive gloss. Even that will be too much for those who opt for complete silence, but I don’t think the rule mandates silence. Neither does the commentary to the Rule.

Mr. Biggs wants me at counsel table. He has a Sixth Amendment right to counsel of choice. So we filed emergency paper work in the federal court in D.C., where we are in trial; in the Washington Disciplinary panel's office; and, in the Connecticut Appellate Court. This afternoon, the Appellate Court granted a temporary emergency stay. I'm "unsuspended," at least for the next few weeks.

The underlying issue is my office's release of medical records of plaintiffs suing Jones to a bankruptcy lawyer working on Jones's case, and to another lawyer representing Jones in Sandy Hook litigation. Neither had filed what are known as appearances in Connecticut or in the bankruptcy case. In the judge's view, that made the disclosures a violation of an order restricting disclosure to counsel of record, a view of the order that is by no means self-evident.

But the judge swings the gavel in her courtroom.

The disclosures came to light when a lawyer in Texas mistakenly sent them to a lawyer representing other Sandy Hook families in a case against Alex Jones pending in Texas. That lawyer made great sport of the mistake in a televised trial, although he never looked at the records nor shared them with a third party. Indeed, the two lawyers who received them did not look at them. No one looked at them in violation of the order.

The judge ruled that the records could have fallen into the hands of others, as though I had mailed them to CNN. It was an and histrionic overreaction to the evidence before her. She also ruled that I had previously disclosed confidential information in violation of the same order. I had referred in general terms in a court pleading to testimony about legal fees and instructions of counsel to a client not to answer questions about who funded the litigation of Jones. I didn't name the party; identify their gender; or, in fact say much more that I just said. It was no violation of the order; not even close.

Connecticut is unique among states permitting trial judges to discipline lawyers for conduct appearing before them. The disclosure at issue occurred in a proceeding the judge either read about in the newspaper or heard about on television. If this is before the judge, then I have played in every Super Bowl I ever watched.

The judge is stunned by my misconduct. Me, I am stunned the state trusts her with a robe and a gavel. Folks are afraid of this judge, and not for good reason.

Why would the judge do this? I think Emerson teaches why: "When you strike at a king, you must kill him." The same, apparently, applied to queens.

My office had moved to disqualify the judge, taken emergency interlocutory appeals to the state Supreme Court -- one of which went to full briefing, and otherwise challenged her ability to be fair and impartial to Alex Jones. We clashed in a televised trial versus Jones, a trial in which she so lost control of the proceedings that she at one point sat gaping as a plaintiff's lawyer and Jones exchanged heated words; I shouted objections as though to an empty room.

We're preparing to appeal the $1.5 billion default judgment against Jones, a case we believe this judge butchered with her rulings.

She got her revenge.

The appellate court has given us 10 days to write a brief about why this stay should extend until we can fully challenge her disciplinary decision, a scornful 49-tract short on scorn and rife with error. It's unclear how long the stay will be extended. We're hoping for as long as it takes to appeal the disciplinary suspension. That's the long game.

The short game is that it restores me to a place at counsel table in the Biggs trial. Mr. Biggs is delighted, as am I. My license to practice in D.C. was questionable given the fact that I had waived into the bar in Washington; the waiver rules required me to me admitted in another state. The rule is less clear about whether I have to maintain a bar membership in another state to practice here. For a day or so, I agreed not to speak while we tried to sort it out. Once the jury entered the room and was empaneled today, I objected. I am still member of the D.C. bar until suspended incident to Connecticut's rule. Mr. Biggs was denied counsel of choice in violation of the Sixth Amendment today. That could taint the verdict, if the Government gets a conviction.

I can live with losing my law license in the course of representing unpopular people and challenging judges who diminish the luster of the robe. But I would have had a hard time being sidelined in the Proud Boys case.

"Objection," I'll likely mutter in my sleep tonight. The government is expected to call its first witness tomorrow morning, you see.

I've moved to a new blog site, called Law and Legitimacy. It is hosted on Locals!

I haven't been all that active here in recent years. My interest in blogging comes and goes. But with all this time on my hands in the next few months, I suspect I'll resume writing.

I'll leave it to you to find your way to the new page.

A bomb erupted in the Milwaukee police station. It had been placed near a church. It was carelessly handled at the station. Nine police officers and a civilian were killed. 

Who left the bomb at the church, and why?

Weeks after the bombing, 11 Italian immigrants, already in custody on charges relating to a riot involving the pastor of the targeted church, faced trial on charges unrelated to the bombing. The jury convicted all eleven after just nineteen minutes of deliberations. They were sentenced to long prison sentences. 

More bombs and death threats followed. This time the targets were the prosecutors. 

Emma Goldman was involved in supporting the defendants. Strang suspects she may have enlisted Clarence Darrow on appeal. Darrow, it turns out, did little appellate work in his long career. 

Strang researched records of a bar disciplinary investigation involving the prosecutor in the case on unrelated charges of corruption. He unearths powerful evidence that Darrow, the prosecution and the judge arrived at a silent agreement to alter the court records on appeal so as to yield lenience for the defendants, this in exchange for the anarchists calling off further attempts on the lives of the prosecutors.

He tells the tale expertly in Worse The The Devil: Anarchists, Clarence Darrow, and Justice in a Time of Terror, Revised Edition, 2016.

I confess to being a sucker for everything written about Clarence Darrow. He's regarded as one of the greatest of American trial lawyers. I am a trial lawyer. I want to learn from a master. Yet researching Darrow suggests he's a dangerous role model. He stood trial himself twice -- with hung juries each time -- in California after being charged with bribing a juror in a case involving brothers accused of bombing the Los Angeles Times building in the early 20th century. (He avoided a third trial by agreeing never to return to California to try another case.) 

I suspect he did, in fact, bribe the jurors. He was spotted standing across the street from a juror who was handed an envelop with cash on a public street. Just a coincidence that he was there as his investigator made the payment? Maybe. I have my doubts.

Darrow once famously said "There is no such thing as justice, in or out of court. Justice is what comes out of a courtroom." That's dangerously close to saying the ends justify the means. A lawyer walking that slippery slope will slide into corruption. The rule of law admits of no exceptions -- you either follow the law, or become lawless.

Strang tells this tale with eyes and ears of the trial lawyer that he, in fact, is. If you know the name, you know him from watching Making of A Murderer. His defense of a young man tricked into confessing to a crime he did not commit is legendary.

Strang's suspicion about Darrow is a stunning accusation, but convincingly made.  If you read the book, read the footnotes. Strang moonlights as a law professor, and his footnotes show the signs of a great educator at work. Strang, simply, as a master at his craft.

Plenty is said and written about our current political divisions, but, truth be told, we live in largely pacific times. A century ago, bombings and political violence were common in the United States. The divide between left and right featured anarchists and lawless private investigators clashing in bloody and deadly contests. Our politics today feature trash talk and hurt feelings.

The rule of law still matters, though. And Strang models it in action. His book on Darrow makes me doubt Darrow's legacy. But it holds out Strang as an admirable scholar/advocate. Every age needs heroes. Strang is becoming one of mine.

I won't call the appearance an interview of Ye by Alex; neither will I call it an interview of Alex and others by Ye. It was an appearance, as in Y sat in front of microphone and rambled on. It is painful to watch. It felt like Jones and other guests, Ali Alexander and Nick Fuentes, were more or less kissing the ass of the wealthiest man in the room, Ye. Ye demanded the floor. He got it. He flopped.

You've heard about the interview by now. Ye talked about loving Hilter and the Nazis. He also talked about loving the Jews and the Zionists. Ye loves everyone. His embrace is as empty as the wind.

There's a difference between being broad minded and no minded. Being alive and aware means drawing critical distinctions. Ye's claim to love all men because that's what Jesus requires rang about as hollow as a preacher screaming from a pulpit set up in the back of a pickup truck. Ye describes himself as a "baby Christian, " recently released from the bonds of alcohol and lust.

I guess. 

I've not been through the scorn and public obloquy Ye's been through. I've not lost billions in net worth over night. My wife hasn't left me and boasted publicly of making love to another man. Ye has good reason to be heartbroken.

So he's coming out swinging in the name of the Lord.

It's unconvincing.

Ye claims to be rewriting the U.S. Constitution with the helf of Nick Fuentes, a 24-year-old social media conservative. At various points in the sit-down with Alex, Ye deferred to Nick in an awkward way, almost saying, "I have no idea. You help."

I understand what's in the relationship for Nick. But for Ye? I had the sad feeling he's being courted hard by a handful of folks and is desperate for a platform. Alex gave him one, and he tanked.

In the end, Ye's interview led me to the conclusion that, like the rest of us, Ye is broken and lost in a world gone, or going, mad. Unlike the rest of us, he still has $400 million, he says. Of that, $250 million is cash, or readily available. I hope he doesn't spend it all on consultants tempted to hitch a notorious ride on his falling star. (There are reports that he paid Milo Yiannopolous more than $115 thousand for consulting services.  Seriously?)

A good friend and co-host of mine on Law and Legitimacy, Mike Boyer, loves Ye. He's a poet, Mike says. He has unique insight, I am told.

I am just not hearing it. What I heard on the interview is a confused man in the midst of losing everything and pretending not to care. He's looking for love in all the wrong places, publicly declaring both that he doesn't care and that he loves everyone.

Ye, sadly, has become an incoherent mess.

I don't know what to make of it.

Alex seems star-struck and deferential. I am not used to that. From time to time, Alex seems stunned into silence. I am not used to that either. Alex is a force of nature. What, then, is Ye?

Regular readers know that I represent Alex Jones, and have done so for nearly four years now. I understand him, and I believe he has a lot to say that is of interest. His take on globalism seems correct, as does his fear of a dystopian future driven by big tech and government control of the economy and our personal choices.

Ye is new to me. My co-host on Law and Legitimacy, Mike Boyer, keeps telling me Ye is a genius, and that he has a lot to say. I trust Mike, so I am listening.

It seems that Ye has taken a fundamentalist Christian turn. He talks about loving Jesus, Christ as king, and recites the Bible self-consciously referring to himself as a baby Christian. But his love affair with his new faith doesn't seem to be taking him anywhere in particular, at least anywhere I care to follow. Platitude isn't social policy, and vowing to love God isn't a social philosophy. Ye is no St. Augustine, at least not yet.

Ye loves all men, and therefore sees the good in Hitler. Maybe. But why that choice? Why now come to love Stalin's warts, or the timbre of Pol Pot's voice as he ordered the death of millions.

Ye's the darling of the alt-right just now, but I worry that he is being used. He appears on the Infowars set, as he did at Mar-a-Lago for dinner with Trump, with Nick Fuentes, a 24-year-old young man much maligned as a white supremacist. It's quite the Oreo-cookie, this black and white combo. When policy questions require some detail, he defers to Mr. Fuentes. It's odd. (Full disclosure time: My office represents Mr. Fuentes in a dispute with the federal government about the TSA's no-fly list.)

Ye's repeated references to Zionists chills me. Oh, he doesn't dislike Jews, he points out. I felt like I was listening to a redneck talking about his black friends. There's something off there.

Was that Alex tongued from time to time?

I will defend Ye's right to speak, even if what he says makes little sense; even if some of it is chilling. Jews have been a convenient scapegoat for millennia. What is Ye doing now and why?

I saw a video of him in a car en route to his interview at Alex's Austin studio. He was sitting with a driver and two ideological associates. He was cool, calm, collected -- and rational.  I don't buy the hypothesis that Ye is a manic depressive in need of medications.

Ye is talking about despair and the need for grace in a broken world. I get that. He is trying to situate himself in the Christian tradition. I wish he'd remember that is is a Judaeo-Christian tradition with a deep debt to classical antiquity. Ye is lost. I get that, too. So am I.

I'll finish the interview with Ye as soon as time permits.

But I am troubled by it. I am disappointed, candidly. I thought there was more to him. I am open to the possibility that I am not listening closely enough.

I do know this much, though. His cancellation makes him of interest to me. We hate what we fear. Why are people afraid of Ye?

 

Why is it a dishonest move?

I'm a white male. I don't support reparations for African Americans, and the entire identitarian enterprise strikes me as suspect. That's not because I think white men have all the answers; I don't think anyone has them. A group claiming a position of privilege commits the sin of pride.

I am a misanthrope plain and simple. I mistrust everyone, including myself. All have sinned, Saint Paul once wrote. Amen, I say. We are all sinners in need of grace.

I've struggled with the smear of supremacism. Giving those who resort to this rhetorical move the benefit of the doubt, it is the case skin color and gender matter in our society. I do enjoy, or at least have enjoyed, certain benefits attendant to my accidents of birth.

Does this make me an unconscious possessor of supremacist attitudes? Does our social structure create expectations in me that can look supremacist to those who don't my traits?

I am open to that possibility.

But still the expression "white supremacist" is too fraught. I am groping for an answer, a better way of expressing difference.

Why did so many people fixate on whether Barack Obama was born in the United States? The constitution requires a president to be a natural born citizen. Folks wanted him to be ineligible for office. Why? I suspect because he was black. Attacking his citizenship was an indirect way of saying they could not accept the results of the election electing him. (I doubt many of the same person who raised this claim about Obama would object were Elon Musk, himself not a native American, to run.)

Now comes a new form of denialism.

Daily it becomes just how apparent social media was in manipulating the electoral in 2020. There are still millions of American who believe the election in 2020 was a fraud. Election denialism is becoming the new way of not accepting the results of an election.

Just beneath the surface of electoral results are the changing demographics of American politics. Caucasians will soon become a minority in this country. The identitarians have succeeded in their objective to make "whiteness" problematic. Folks who never gave a though to their own identity must now give account of it, for good or ill.

Election denialists care less about the results of an election than the new world they are coming to inhabit.

I suspect many folks, I among them, engage in a species of white rejectionism. You want to make my identity a problem for me? I reject the claim, and contend that my identity may be a problem for you, but I won't let you impose your agenda on me. I shut down and walk away when identitarians chatter. I suspect that looks like supremacism -- " the nerve of you to assert your privilege of taking your identity for granted; I demand recognition,!" the critics say.

I read a tweet from Donald Trump this morning calling for a redo of the 2020 election as it becomes apparent how much of a roll big tech played in censoring information to advance Joe Biden's chances. The notion is sheer madness. Trump looks like an aging Confederate general whining about the Civil War.

There appear to be a growing number of Americans who are prepared to reject elections and much else about the current social compact rather than engage in an identitarian scrum. The idle chatter about civil war and social discord is less prophecy than wish. 

I'm not sure how much weight I place on these intuitions. Like you, I struggle to make sense of the world. I share this to see what you think.

Can you help me figure it out?

It happened again this morning. I was finishing a brief new book on the work of the House Committee investigating the events of January 6, 2021 at the Capitol. (If I don't agree to characterize it as an "attack" on the Capitol, does that make me a "white supremacist"?)

The author is a one-term congressmen, former Republican, intelligence analyst and former committee investigator, Denver Riggleman. The Breach: The Untold Story of the Investigation into January 6th is the title of the newly released volume. It is one of the first in what I expect to be a tidal wave of works on the committee's work. A report of some sort is likely to be published before the House changes partisan hands in early January 2023.

Riggleman describes himself as providing technical support to all the "teams" among the committee's investigators. He's an adept at the use of big data to track relationships. He writes, at one point, that "[t]he data indicates that white supremacist organizations and other extremist groups have been gaining a foothold in our military and law enforcement communities." The Breach, p. 85.

Later he writes, of a new congresswoman, Mary Miller of Illinois: "As she boasted of her commitment to 'Christ' and 'conservative values,' Miller went full Nazi." Id., p. 168. Huh? What is Riggleman doing? His is an extreme form of something, but what? How to explain it?

I'll have more to say about Riggleman's book later -- it does provide insight into the workings of the committee. I suspect he'll be an insider in Liz Cheney's campaign for the White House. She's been criticized for trying to focus the Committee's report on Donald Trump to the exclusion of other factors. Riggleman's work is an teaser for Cheney. He writes that someone in the White House was in contact with a "rioter's personal cell phone" as the events of January 6 unfolded. 

He doesn't name the rioter. I suspect he's left that gift for Liz to disclose. The White House contact? Chief of Staff Mark Meadows.

Riggleman's casual embrace of the "white supremacism" to lump together those critical of the left seems dishonest. And this business of calling a congresswoman a Nazi for talking about her Christian commitments is chilling in a neo-Orweliian way.

I've begun compiling a list of organizations that authors use to support their off-handed characterization of critics of the left as "white supremacists." They include the obvious candidates, such as the Southern Poverty Law Center, and a series of entities like the George Washington Program on Extremism and the Network Contagion Institute. 

Is anyone aware of a study of these groups? What informs their ideological commitments? How has it become acceptable claim that race is a "social construct," unless you are using race or identity to advance your own interests, in which case "whiteness" is suddenly all too real and convenient demon?  And how is it that anyone calling all this out as nonsense is a "white supremacist"?

I'm aware of the obvious pop culture works of folks like Ibram Kendi or Robin DeAngelo. I'm less interested in that. Are there serious studies of this trend?

Send me a note about what you are reading and seeing.

I say its time to push back against this rising tide of hate speech.  I'm white. I despise identity politics. That doesn't make me a white supremacist. Trying to take advantage of your identity while marginalizing mine with a rhetorical trick isn't honest. 

Then a long knife in the hands of a mad man struck, again and again and again. A furious 24-year-old stormed the stage, nearly killing Rushdie before stunned onlookers could subdue him.

You want cancel culture? This is where it leads, inevitably – the murderous silencing of dissent.

The Shah of Iran put a price on Rushdie’s head, declaring a Fatwa, or decree from an Islamic religious leader, calling on the faithful to act. In 1989, Ayatollah Ruhollah Khomeini, Supreme Leader of Iran, called on Moslems worldwide to kill Rushdie for the great crime of writing scenes unflattering of none other than Mohammed himself in a piece of literary fiction known as “The Satanic Verses.” This early expression of cancel culture sparked violence, riots and death worldwide. A bounty of several million dollars was placed on Rushdie’s head, a quick, but risky get rich quick scheme. The fatwa remains in place, and The New York Times places the value of the bounty at $3.3 million as of 2012.

The would be killer? A man named Hadi Matar, who was taken into custody at the scene.

Was the mayhem the result of the fatwa?

Oh, this could just be another piece of random madness of the sort that seems all too regular these days. Had Rushdie been attacked with a firearm, there’d no doubt be marches for gun safety measures among the polite and politically correct. There will not, I suspect, be a similar outcry for better training in the use of cutlery.

Little is know about Matar. The New York Times reported him a “New Jersey” man, obscuring, for the sake of diversity, what more is known about Matar. A law enforcement official told NBC news that Matar, who was born in California, demonstrated sympathy for Shia extremism and the Islamic Revolutionary Guard – Iranian shock troopers formed after Islamic extremists seized power in Iran in the late 1970s. It is hard to avoid the conclusion that Matar’s attack was inspired by the fatwa. Even the Times spent column inches discussing the fatwa, Rushdie’s decades of living in hiding and seclusion, and left the impression that its editors have reached a conclusion its writers are too feckless to state – Rushdie’s stabbing was a result of intolerance.

Matar was charged with attempted murder in New York shortly after the stabbing. He will soon appear in court for an arraignment, where, undoubtedly, the world’s press will await his appearance. Will he tells us then what inspired him? I doubt it. He’ll be appointed top-drawer counsel to defend him, and their first move will undoubtedly be to have Matar evaluated by a team of psychiatrists. Perhaps the young man is a latter day John Hinckley, seeking to impress some unlucky soul with this shocking act of violence. Or perhaps, and this is speculation, he really is a religious extremist. It would a stunning act of honest lunacy for him to appear before a New York judge and claim Allah’s reward. Intolerance kills.

It was a bad week for Islam in the United States. In Dallas, Yasser Abdel Said was convicted and sentenced to life in prison for killing his two teenage daughters in 2008. Why’d he do that? Said, who was born in Egypt, and came to the United States in 1983, didn’t like the boys his daughters were dating. “I was upset because in my culture it’s something to get upset about,” he said, while denying the killings. Score one for honor killers everywhere. Intolerance kills.

And in Albuquerque, New Mexico, all eyes were on the Moslem community, where a string of homicides of young Islamic men sparked concern that the victims were targets because of their faith. It turns out they may have been, an Afghan Moslem from a different sect has been taken into custody by police. Was this sectarian violence we read about elsewhere? Intolerance kills.

And what of the attempt on the life of an activist living in the greater New York area? The Times reports that men believed to connected to Iran targeted an activist for assassination. Her crime? Speaking out for the rights of women in her native country. Intolerance kills.

There’s a message in this for all the woke virtuosi who are oh-so-certain they know the metes and bounds of the good, true and beautiful. Speak at variance with this crowd, and suffer the consequences – today they will malign you, try to force you from your job and otherwise stalk and harass you. Give them power and ostracism will give way to darker impulses, I fear. There is nothing quite so terrifying as a self-righteous mob.

Rushdie is on a ventilator and suffering from serious, life-threatening injuries. He may well have been mauled because he expressed ideas unpopular to some. The demand for conformity resulted in calls for his execution.

It took 33 years for hatred to strike a near fatal blow in Rushdie’s case. I suspect the growing intolerance in our midst makes the lag time between fatwa – whether religious in origin or merely the unctuous demand of the politically correct – and execution much shorter these days. Rushdie came to New York to celebrate asylum from hate. Little did he know that we’re not immune here, not any more.

I am referring, of course, to last week’s first public hearing by the House Select Committtee to Investigate the January 6th Attack on the United States Capitol. The eight-member panel unveiled its opening statements in a prime-time presentation choreographed by a retired ABC News producer. The following day’s New York Times banner headline summed up the event: “Panel Says Trump Led ‘Attempted Coup.”           

Good luck with that.
           

If there is proof that Trump orchestrated and led a coup, an organized effort unlawfully to seize power, it is the best kept secret in the county. The committee has interviewed more than 1,000 witnesses and trawled through tens of thousands of documents. The Justice Department has arrested almost 850 people;  it has grand juries busily at work looking, searching, probing for a link between the chaos on the ground in Washington, D.C., and the White House. There is none.           

So far all we’ve been shown is a handful of indictments for Proud Boys playing at citizen militia. Even as bloodless coups go, this “insurrection” seems uniquely devoid of leadership, purpose, and serious intent. At most, these would-be insurrectionists might have succeeded in delaying the counting of electoral votes for a day or so. The shock troops storming the capitol were armed with zip ties and rage. Scary, yes. The toppling the republic? Not even close.           

Just why tens of thousands of Americans appeared at the Capitol is an important question. Some – perhaps most – believed the election of 2020 had been stolen from Donald Trump. Some may believe it still. For all I know, Trump himself believes it.           

It seems far more likely to me that most folks in Washington on January 6, 2021 didn’t care whether the election was, in fact, stolen. So far as they were concerned, and are concerned, something is profoundly out of focus in this country. They look at Washington and see a universe separate and alien from the one they inhabit. We’re in the midst of legitimation crisis in this country, and are rapidly becoming a failed state.           

What’s legitimacy? It is the ineffable quality of being able to distinguish authority from naked power.           

The German sociologist Max Weber wrote a seminal essay a century ago about legitimacy called Politics as a Vocation. He defined the state as the entity have a monopoly on the use of force. In other words, the state can use force with authority, with a sense that its use of force is right, or at least justifiable, in a way that a private individual cannot.           

Consider the difference between a police officer and a gang banger. Both can carry a gun. Both can approach you on a street corner and demand your wallet. Odds are you will turn over the wallet to both. To the gangbanger you give out of fear that his show of force – mere power – is sufficient reason to act. The police officer’s request most likely strikes you as different. The officer wears the badges and indicia of authority – he is a public official. His demand produces fear, to be sure, but there is a little something extra, a sense that he is acting in the name of the state.           

In a healthy society, the governed can tell the difference between a police officer and a gang member. In a society governed by the rule of law, where power is directed by transparent rules, we say the police officer’s use of force is backed by the authority of law.           

But we live in troubled times.           

In the summer of 2020, cities across the country erupted in violence. The police, it turns out, are regarded by many as the functional equivalent of a gang. The state’s monopoly on the use of force is not regarded by many as legitimate; it is simply the most powerful gang on the block. It must be met with massive resistance. Hence, the riots, the arson, the looting.           

Both the summer of 2020 and January 6 are signs of a fraying consensus on fundamental values, a growing awareness that we are broken. I’d suggest different folks reacted with violence to a society in which they did not feel welcome. Some burned a building; others stormed a public building.           

Have you read, or even heard about, Anne Case and Angus Deaton’s 2020 book, Death of Despair and the Future of Capitalism?  Odds are you have not. The pandemic swept in.           

Case and Deaton wrote of the declining life expectancies of lower middle-class Caucasians without college educations. Tens of thousands of them die each year from suicide, opiate overdoes and the consequences of alcoholism. These are forgotten Americans in flyover country. They’re angry, too. But they’re overlooked. Dead white working-class people aren’t fashionable on the evening news.           

I suspect they turned out with a vengeance on January 6. This was their dance of rage directed at institutions that are failing them. It was a condensed version of the summer of 2020.           

In 1968, after the riots of 1967 burned through our cities, President Lyndon Baines Johnson appointed a commission to study what happened and why – the Kerner Commission. It issued a report on the social and economic conditions that ravaged the nation. It didn’t seek to assess blame; it sought to understand why folks reacted with despair.           

That is what the January Committee should be asking now. Why are we a nation divided, and why are we armed to the teeth – white and black – and openly talking about civil war?           

Instead we get a version of the Watergate Committee, which investigated President Richard M. Nixon’s coverup of the Watergate burglary by presidential operatives of the Democratic National Committee’s headquarters. What did Nixon know, and when did he know it? Those were the questions.           

There’s a serious difference between the cover-up of a burglary and the disintegration of a society.          

We’ve yet to have a serious discussion of why we elected Donald Trump president, and why he continues to have an outside influence on our political life. It’s not because he is a statesman, a moral leader or even a good man. He’s the canary in the mineshaft; he senses the despair of millions of overlooked Americans and he’s learned to direct their rage outward. Rather than suicide, they may be willing to destroy institutions they regard as broken.  Make American Great Again is a national call for help; so was the fire and rage of 2020.           

When all is said and done, the January 6 Committee will confirm that beliefs of those who have already decided Trump – the canary – is to blame. Trump supporters will vote for him all over again, even if he is proven to have directed the violence. The battlelines will harden, and we will not have learned a damn thing.           

We need a Kerner Commission. This isn’t a whodunit. We’re doing it to ourselves.

Clean house. Start at the top, with Twitter’s top lawyer Vijaya Gadde. She and her legion of censors should be shown the door. They tried to transform idiosyncratic standards of taste into governing principles for what could and not be said on this quintessential public forum. They failed. Send them packing.

Musk bought Twitter because its corporate culture stifled free expression. Armed with a community standards policy vesting discretion in staff either to ban, limit or permit speech, the communications giant became a woke panopticon: an all-seeing beast that imposed, from its centralized command structure, a vision of the good, true and the beautify that accorded with the ideological preconceptions of the lawyers running the show.

Get rid of the lawyers. Every single one of them.

Replace these folks with first amendment litigators: Lawyers, and retired judges, who understand contemporary first amendment law. Create an infrastructure of review and appellate procedure that permits a party to challenge a post on first amendment grounds. The decisions makers will agree to decide the issues based on first amendment precedent.

Obviously, Twitter is not bound by the first amendment. It is not a governmental entity and it can do whatsoever it likes, within very broad limits, to restrict speech.

In recent years, Twitter is perceived to have taken a left-ward tilt. Eliminate the tilt and commit to being governed as though Twitter were a governmental body. This is consistent with Musk’s vision of Twitter as the digital common, or town green – the place where many of us go to exchange views.

I’m sure Gadde did her best to administer Twitter’s convoluted community standards policy. But, candidly, her best isn’t and wasn’t good enough for the republic. I no more want a woke corporate lawyer telling me what I can say that I do members of an activist group. No one owns the language or ideas.

During the past one hundred years, the first amendment has evolved to a point at which certain narrow exceptions to freedom of speech are recognized. A person can be prosecuted for speech that violates the criminal law, including true threats, incitement to violence and utterances associated with a conspiracy. The civil law penalizes defamation, invasion of privacy and other wrongful conduct. That’s enough.

Social media companies do not have to reinvent the wheel when it comes to parsing the line distinguishing protected from prohibited speech. Thousands of court decisions have resulted in legal doctrines most competent lawyers can recognize. When there are gray areas, disappointed litigants can take appeals. Truly complex and novel cases get decided, with finality by the Supreme Court. Twitter should simply vow to follow these standards.

Adopt adversarial procedures. Do not let the decision to remove content be initiated internally. To keep a case in court requires a party to bring the action. A court will only hear an issue if there is an actual case or controversy. Twitter should initiate online complaint procedure. To protect its own interests and the interests of the public at large, it can appoint, and staff, a public ombudsman’s office capable of initiating a take down procedure. There can be expedited process for truly egregious cases. There should also be a free speech advocate’s office, acting in much the same manner as a public defender does in the criminal system. The advocate’s role would be to advocate for freedom of speech.

Require written decisions on why a piece of speech is banned or an author taken down. Permit the aggrieved party to take an appeal. All of the participants in the process -- advocates and judges – should be trained lawyers. The company policy should be simply to follow first amendment precedent.

The system will be time-consuming and difficult to administer, but it need not be created from nothing. There are thousands of lawyers nationwide who can participate in the process – many of whom could do so on a part-time basis.

The benefits of this regime would be prohibition of what the first amendment prohibits: censorship based on non-content neutral principles – i.e., silencing a person for their political views. It will also force more attention on hate speech. The first amendment does not now prohibit hate speech, in part because it is so difficult to define. Yet social media companies routinely censor what they don’t like. I find it ironic that folks get so wound up, for example, about Alex Jones – I suspect he’s the target of more hate than what he has generated with his speech.

I’m rooting for Elon. I am rooting for Twitter. Above all, I’m pulling for the first amendment. You wanted to change the culture of Twitter, Elon. It’s far easier to do than you might have imagined.

            I ask because I am under fire for using the “n” word without permission.

            I’m branching out professionally, making the seamless and easy transition from criminal defense lawyer to stand-up comic. The differences aren’t all that great. In both instances, you stand before strangers challenging preconceptions. Criminal law is about defending alleged transgressors; good comedy is about transgressing settled expectations and piercing the pretentions of the unctuous.

            There are few folks more unctuous these days that the “woke,” the cabal of righteous folk who have decided they know what’s best for the rest of us. The new high priests and priestesses of identity politics – the Identitarians – are a social cancer. Humor is one way the lance the boil they represent on the body politic.

            In a recent stand-up routine in East Haven comedy competition I commented on Joe Rogan’s removing a series of his podcasts from Spotify because the “n” word appeared in them. It is ridiculous that we give words such power. So I said, in that gig, that I wanted to make sure my performance was never shown on YouTube. I dropped the “n” word. The audience gasped. A boundary had been crossed, shattered, mocked. And no one was hurt. Fancy that.

            In the weeks that followed that performance, social media lit up. I had advanced to the next round because I was racist. My use of the “n” word proved it. Folks tried to get to event cancelled, even going so far as to call the restaurant at which the event was taking place. There was no cancellation.

            On the night of the performance, the finals of a multi-week competition, there was a packed house. I performed again, and made it to the final round of three performers. I was the last comic standing; competing against two musicians, who, as it turns out, came in first and second place – I placed third. 

            Before the three of us did our final acts, a series of warm up comics appeared on stage. They were all black, using the “n” work with abandon, a couple of them commented on my use of it several weeks earlier. A couple of them did Amos ‘n Andy-like routines in which they mocked the reaction of white people to such things as a “n” at a college kegger. 

I didn’t have permission to use the “n” word, they said. One doubted I’d use it again, since there were three of black men present – maybe I’d get my ass kicked. Things got a little edgy.

Seriously?

When called upon to do my final performance, the organizers had made it clear that we were to be brief. How was I to compete with musicians, both of whom were amazingly talented? I had basketball shorts on beneath my suit. I dropped my drawers, a lawyer in a suit trouserless, a calculated risk designed to shock.

I ended with a routine I had done before, reworking George Carlin’s bit about the seven dirty words into a take down of the sanctified identities we must now refer to only with reverence lest we offend. I chose my words carefully, like Carlin dropping the “f” bomb to shock sensibilities in the name of good sense, I uttered words designed and intended to offend women, the disabled, gays, transgender folk, and, yes, people of color.

After feigning difficulty saying the “n” word, I ended with a simple declaration:: Maybe white guys just couldn’t say n_____.

All Hell broke loose. One of the black comics wanted to kick my hind quarters, and bellowed loudly. There were boos and nervous laughter. I recognized in the crowd a person who once tried to grieve me in licensure proceedings for being racially insensitive. Something tells me she didn’t attend to enjoy a night of entertainment.

Not long ago, a pseudonymous social media writer announced I would be grieved for this performance. “Bring it,” I responded. We’re prepared to defend, and we remain so. Now the tongue-cluckers on a few list serves are worked up. I am a racist, they contend. Thus spake the idiocrats.

I am neither a racist nor a misogynist. I am, however, a misanthrope.   I don’t trust anyone, much less myself. Augustine nailed it my view: sin is love of the wrong thing. And Paul, too, was right: all of have sinned and fallen short of the glory of God. We’re all pots protesting to the potter: why makest me thus?

We’re much in need of comedy these days as our politics become reduced to farce. A Supreme Court justice was just seated who was afraid to define what a woman is lest she offend some woke Identitarian. I looked at that shook my head in sorrow: There is no mob more dangerous than a self-righteous mob.

The woke elite are much in need of ridicule and comedic take down; so are the semi-literate half-wits who rally around them.

So if you are offended by use of the “n” word in that comedic skit consider the possibility that the joke is at your expense. 

Ask Chief State’s Attorney Richard Colangelo, now accused in various newspapers around the state of nepotism, corruption and dereliction of duty. His bosses at the Criminal Justice Commission are said to be researching how to force him from office. The governor has made it clear that Mr. Colangelo ought to go. Dwarves wearing faux shark fins on their backs wade in cesspools hoping for ascension.

Why? Because a trial brief masquerading as a fact-finder’s report concluded that Mr. Colangelo wasn’t candid when he couldn’t recall dates of various meetings.

The report’s author, former federal prosecutor Stanley Twardy, opined that Mr. Colangelo was a liar. Well, case closed then. We can’t have a liar atop the state’s prosecutorial pyramid.

I read Mr. Twardy’s 40-plus page fact-finding report with a dawning sense of familiarity. This was not report to others about what facts were and were not available on which to make a decision. It read like a post-trial brief, an advocate’s argument on the case he or she wanted to make.

At issue was determining the circumstances under which Mr. Colangelo offered a young woman a job. Did he do so as part of an effort to influence her father, Konstantinos Diamantis, to use his influence in state government to approve raises for non-unionized prosecutors? (I represent Mr. Diamantis in this matter.)

Reading Mr. Twardy’s report sure makes it look that way. After all, the record is not entirely clear when Mr. Colangelo met the young woman. Was it at a May 2020 soiree at a restaurant? Mr. Twardy accuses Mr. Colangelo of changing his tune when confronted with the statements of others about the meeting. I’d like to see a transcript of the interview with Mr. Colangelo. Sometimes recollections are refreshed with additional information. What sort of humorless prick keeps a calendar recording every social engagement?

And just why was Mr. Twardy, a so-called independent investigator, accompanied at several key interviews by the governor’s lawyer, another former federal prosecutor named Nora Danahey? Facts are discovered after honest inquiry; advocates burnish the record, and nudge in the direction of inferences favorable to their side. Ms. Danahey’s attendance at interviews calls into question the independence of the process.

And just who is the anonymous prosecutor whose notes were given to Mr. Twardy, and to which Mr. Twardy’s report makes copious reference? Think about it for a moment. Prosecutors have a duty to see to it that justice is done. Are we really to believe that a senior state’s attorney attended meetings in which dirty deeds were done, and kept silent about it? If Mr. Colangelo is to offer his scalp, then, I suggest, another head is required.

One would be forgiven the impression that a rival of Mr. Colangelo’s lay in wait, scribbling notes about all he or she saw or heard, saving these nuggets for the express purpose of some day appearing with the hypocrite’s leer – “What a good boy – or girl – am I?” Don’t drink from the water coolers in the Chief State’s Attorney’s office – quislings poison them.

Why keep your star witness under wraps in your trial brief, Mr. Twardy? Is it that should the source be known, insiders would conclude, immediately, that there are serious credibility issues about the witness?

I get it. The appearance of impropriety matters. Mr. Colangelo has been to look like he offered a job to the daughter of a man for the most venal of reasons – a raise. Savvy prosecutors should know better than to even appear to be in such a situation. Mr. Colangelo’s predecessor, Kevin Kane, would never have found himself in such a position.

I’ve studied the record. Here’s what I know.

He was a new chief state’s attorney.

The non-unionized members of his division had not received wages to keep pace with their unionized subordinates. As a result, there was an asymmetry in the pay scales. Some junior prosecutors were making more – are making more – than their bosses. Mr. Colangelo wanted to correct that. Mr. Colangelo was a newcomer in Hartford. He worked the administrative back offices trying to figure out how to get these raises. He was also new to statewide office. He traveled throughout the state to plead his division’s case and to expand the influence he could bring to bear on behalf of prosecutors statewide. This is all appropriate.

Along the way, he met a young woman to whom he offered a position he was free to offer – executive assistants are unclassified positions. There are no civil service requirements for the job. That woman was the daughter of an official who could help him get the raises he sought.

It’s a long way from this fact-pattern to nepotism and quid pro quo corruption.

But appearances matter, and someone, I suspect the anonymous author of the notes relied on by Mr. Twardy, called a newspaper columnist. That columnist thought he had Deep Throat on the line, and decided he was the Nutmeg State’s very own Bob Woodward.

Scandal. Corruption. The Fourth Estate saving the republic.

Except it wasn’t in this case. It was the sort of tedious swill that breaks good men and women in Hartford.

Governor Ned Lamont’s initial press release got it right: This was a tempest in a tea pot and should have been dealt with by means of minor policy changes. But then came news of a federal grand jury looking perhaps too closely in the direction of the Lamont administration. Within 24 hours, the governor was calling for Mr. Colangelo’s head, perhaps hoping that a scapegoat would deflect attention.

Odds are we’ve lost Mr. Colangelo. I’m betting he resigns before the Criminal Justice Commission convenes a hearing. That’s too bad. I’d like to see the truth, the whole truth, and nothing but the truth come out. I’d like to see the trial brief on behalf of Mr. Colangelo, the one written without the influence of the governor’s lawyer.

Good men go to die ignominious deaths in Hartford. And for what?

On command, the question was asked, and, on cue, the governor parroted lines no doubt written for him by another: “I do not hire him. I do not fire him. But if I did, he’d be gone.”

Seriously, governor. Yesterday in a press release from your office regarding the 40-plus page report of an independent counsel involving Mr. Colangelo you were prepared to endorse a polite slap on the wrist. You called for ethics training for state prosecutors and the creation of new policies to avoid the appearance of conflicts of interest in the chief state’s attorney’s office. Those responses fit. Today’s engineered public relations stunt was a grotesque overreaction? What changed?

The headlines in today’s Hartford Courant screamed federal grand jury investigation of state funding of various programs in eastern Connecticut. Could it be that this report has the hairs on the back of the governor’s neck standing on end?

I suspect it is.

Mr. Colangelo is the state’s top prosecutor. He’s relatively new on the job. One of his goals is to equalize compensation among managerial and rank and file prosecutors. As it turns out, unionized members have received hefty raises in years passed. Their non-unionized colleagues – their bosses – did not. Hence, underlings sometimes make more than their bosses. It’s kind of hard to promote talent within in the ranks when you are asking folks to take a financial haircut if promoted.

The state, being an administrative behemoth, has many levers that must be pulled to make things happened. Mr. Colangelo went to top-dog bean counters to get approval for pay raises for managers. Among those to whom he spoke is a man named Konstantinos Diamantis, until recently a senior administrator in the state’s Office of Policy and Management and the Department of Administrative Services. He also played a role in state financing of various public projects.

It appears that Mr. Colangelo did what state bureaucrats do: he located the levers of power necessary to get what he wanted for his agency, and he pulled those levers. He pleaded his case to Mr. Diamantis, who apparently agreed to go to bat for Mr. Colangelo. Mr. Diamantis merely had the power of persuasion, he did not have authority to release the funds or approve pay raises for state’s attorney. Mr. Colangelo never got approval for the raises for his people, but, during the pendency of his request for funds, Mr. Diamantis’s daughter ended up working for Mr. Colangelo as an executive assistance.

The timing looked suspicious. Did Mr. Colangelo give her the job in exchange for her father’s support for raises? If so, it was a stupid bargain: According to emails, Mr. Diamantis already had committed to helping obtain approval for the raises when his daughter was offered a job. He was not induced to help the top prosecutor in exchange for a job for his daughter.

Mr. Diamantis was forced from state service when this all became public. In the interest of full disclosure, I represent Mr. Diamantis in an appeal he brought in seeking benefits he lost when he left state employment. We’ve filed the appeal under seal. Pressure has been brought to bear from the governor’s office on Mr. Diamantis to withdraw the appeal. If the appeal surfaces, he has been told: “All bets are off.”

It sounds like something out of the godfather. What’s he being offered in exchange for silence?

Yesterday’s announcement that a federal grand jury last October requested records involving Mr. Diamantis and various public works projects makes him a leper now. Even the governor won’t dare wink and nod at a payment of contested benefits to a man under federal investigation. We gird for the battle to come.

So, apparently, does Mr. Lamont, who’s had a horrible week. Just this week, during an election year, his chief operating office, Joshua Gabelle abruptly resigned. Why would he do that during an election year? Timing is everything. One wonders whether the governor knew all about a federal investigation of his administration: the governor’s chief counsel, and, apparently, an auditor of the so-called investigation of Mr. Colangelo, is a woman named Nora Danaehy. She’s married to Connecticut’s United State’s Attorney, Leonard Boyle. Pillow talk, anyone?

Federal grand juries are hungry. They usually start with a suspicion about one thing and often end up finding something altogether different. In this case, press accounts have already raised questions whether Mr. Gabelle had a hand in questionable direction of state funds to a company called Sema4, a firm involved in COVID testing that is the recipient of investments by a venture capital firm in which the governor’s wife, Annie, is a managing partner.

So why the overnight turn on Mr. Colangelo? Fear works.

There could well be trouble on the horizon for  Mr. Lamont.

The entity with the power to hire and fire Mr. Colangelo is the state’s Criminal Justice Commission. I hope that body, an independent entity within the executive branch, looks before it leaps to any conclusions about Mr. Colangelo. I’ve litigated case against him for years and know him to be honest and man of integrity. Bad optics aren’t criminal. The commission ought to be asking serious questions about who within the Chief State’s Attorney’s Office has been stirring this pot. Who gains if Mr. Colangelo is gone? There’s a whispering campaign about Mr. Colangelo going on among some prosecutors, with dark, defamatory rumors being chortled over with a sadist’s glee.

Get rid of the cancer in the agency; it’s not Mr. Colangelo.

As for Ned Lamont, I confess I never liked the man. Many years ago, he was called for jury duty in a criminal case in Norwalk. I represented one of the defendants. His answers about the presumption of innocence were so bizarre that the judge struck him from the panel as unable to follow the Court’s instructions.

Someone remind me. How did we end up with him as governor?

           But first, what is critical race theory?

           It’s much in the news of late, especially here in Connecticut, where local school board officials in Guilford have become the focal point of a roiling debate about what to teach school children about our nation’s past and present.

           There’s no single definition of the movement. But there are some basic tenets: racism is endemic in American life, and has been since long before the founding. It’s deeper than intentional acts of discrimination. It pervades the very structure of our lives, hence the term “structural racism.” Put simply: the life chances of people of color are diminished as compared to white folk. Hence the term “white privilege.” And no class of persons is quite so privileged as the white male.

           Social justice requires leveling the playing field. That starts with learning about structural privilege, and, if you are white, “checking” your privilege. The most prevalent form privilege checking, or virtue signaling, is seen among member of the white middle class chanting “Black Lives Matter.” Your neighbor’s lawn sign spouting that mantra singles their social consciousness.

           All this talk of structural racism and white privilege leads in one direction, and one direction only: social and political change designed to promote a vision of equality defined not so much as equal opportunity, but as equality of position.  Critical race theory is foreplay to the consummation known as reparations. The only way to right history’s wrongs is to dismantle the structure that promotes racism, and that means to redistribute resources.

           Just beneath the surface of the critical race theory discussion is the demand for race-based transfer payments. The brave new world we are invited to inhabit is one in which social justice scoring will determine how much you pay for goods and services, or what life chances you enjoy. An example: Because people of color disproportionately fail the bar examination – a necessary prelude to becoming a practicing lawyer – there are calls to dismantle the bar examination as “racist.” That will level the playing field, in a manner of speaking, by lowering the standards for admission to the bar. Would we consider the same thing for licensure examinations for physicians? I hope not.

           It’s a noxious form of Orwellian gibberish.

           Thirteen percent of the American population is African-American. Some significant percentage of them are middle class or better. Are they entitled to transfer payments from their less affluent white, or recent immigrant, working class fellow citizens? I am a first generation American on my father’s side. When he came here from Crete, sneaking into the country as an illegal immigrant, he got nothing but scorn for the color of his skin. Am I to pay for the sins and omissions of previous generations? My father came here looking for equality and opportunity, not a new form of servitude.

           I smell a shakedown coming. Hence, my desire to deconstruct critical race theory.

           One of the principal exponents of their stuff is Ibram X. Kendi. I picked up a new book of his the other day to try to understand the tsunami of racial rhetoric descending upon the land, Four Hundred Souls, A Community History of African America 1619-2019. It’s a collection of essays by black scholars and intellectuals, each author focusing on a five-year period.

           I stumbled across the following sentence early on, this written by a woman named Ijeoma Oluo, a woman whose mother is white and whose father, apparently, is black: “I am Black because in 1630 a Virginia colonial court ordered the whipping of Hugh Davis, a white man, as punishment for sleeping with a Black woman.” (Note her use of capitalization, black is capitalized, white is not.)

           As a piece of creative writing in an undergraduate English course, the essay is well crafted. She researched, selected, chose and then identified with a character she never met, and to whom she has, most likely, only the most tenuous relationship, if any relationship at all. But what she did with rhetorical choice was to recast her identity in terms defined by this distant marker. She ends by saying: “Until the systemic functions of whiteness that began with the whipping of Hugh Davis are dismantled, I cannot claim whiteness.” She’s re-imagined her life, and her place in the world, in light of events not almost 400 years old.
            That’s her right.

           But consider how tenuous the claim would look were I to say something similar: “I am Greek because in the seventeenth century Ottoman Turks enslaved my people. My father came here to escape the crippling legacy of ethnic and religious bigotry.” It’s sort of a non-sequitur in terms of whether I should be given a tax credit, preferential treatment in admission to a college program, or preferred treatment to federal benefits.

           We each have histories that we inherit and histories that we make. Using what we’ve inherited from the distance past to make a new identity is specious form of grave-robbing. And it’s dangerous. Does Ms. Oluo really expect me to forge a new golden link into the chains she imagines binding her?

           Equality before the law is part of the American creed. That we’ve never fully lived up to that creed and that it remains an aspiration to be achieved is a sign of something like sin. The original sin in American history is not slavery. That’s a form of special solicitude, a rhetorical device, that creates a sense of present-day entitlement. The original sin in American history is the same sin that pervades all history: every time the pot complains to the potter and says “Why makest me thus” a new form of idolatry takes rook.

           Forgive me if I am not worshipping new black idols. That’s just the same old boss in a different colored coat.

Facebook and Twitter are private entities. They are not governed by the first amendment. The first amendment’s ban  on content based censorship does not apply to private actors. It really is that simple.

So Trump’s legal team decided that they needed to find away to cloak Facebook and Twitter in the garments of state action. The complaint fails to do, miserably. It will be summarily dismissed, and the dismissal upheld by the federal appellate  courts. The issues it raises will not be heard by the United States Supreme Court. Indeed, I doubt many constitutional law professors would give a student submitting such a complaint a grade for anything other that a stilted form of creativity: a C+ might be warranted by a lenient grader.

First, the complaint simply asserts that Facebook is a state actor because is buckled under to government pressure in censoring speech. That’s ridiculous.

Facebook and Twitter do enjoy the benefits of a legislative grant of immunity for the material they publish as a result of Section 230 of the Communications Decency Act. Congress is considering eliminating the immunity. Facebook and Twitter did respond by censoring folks it deemed to violate its hate speech and violent speech policies. But that doesn’t make Facebook and Twitter state actors. There’s no case that upholds such a theory.

Second, the complaint contends that Facebook and Twitter enjoy an unconstitutional delegation of Congressional power. This is plainly illogical. Congress doesn’t have the power to regulate speech; it never delegated that. It did threaten to withhold a benefit, but that is not the same as delegation.

Trump missed a better theory. His team should have argued that Facebook is a constructive public trust. That is, that Facebook enjoys a public benefit in the form of immunity from suit; in exchange it should be required to adopt first amendment norms. This would take a decision of the Supreme Court to uphold, but at least the theory has conceptual integrity.

If this is the opening salvo of Trump’s 2024 campaign. I say find another candidate, or, Mr. Trump, find new and more creative lawyers. This suit does not pass the straight-face test.

You can find a more detailed discussion on my new podcast page, Law and Legitimacy.

            Then came Black Lives Matter and the sense that a slumbering nation was being sold a bill of damaged goods. George Floyd wasn’t killed because he was black. Yet you’d think his death marked the reimposition of chattel slavery.

            The courts are struggling to open now. There’s resolute talk of re-opening the courts, but jurors are reluctant to return for jury service. Without juries, the practice of law, at least criminal law, is impossible: it takes the threat of trial to bring both the state and a defendant to the bargaining table. And when agreements can’t be struck, trial resolves cases – one way or the other.

            I enjoy trying cases. I always have. As I write this, I still don’t know whether I will try a case in 2021. I’ve gone from trying multiple cases per year to sitting on the sidelines. I didn't sign up for retirement.

            Oh, I’ve enjoyed the break. Don’t get me wrong. I had no idea I was working so hard until, well, the courts closed and I stopped working so hard. I know I’ll be back at it when courts resume their vital work.             I’m testy, and more than a little irritated about having my professional life, and the lives of my clients, placed on hold.

            Damn the pandemic.

            And damn the activists who sought to transform a public health crisis into opportunity.

            Last year, I was unable even to turn on a baseball of football game – my two guilty pleasures – for fear I’d be preached to about social justice, or some such. I almost never turn the television on any longer. Never mind the news, the shows and the commentary – even the ads are now political. It’s not enough to buy shaving cream; you need to buy it from just the right folks in just the right way.

            So it was with some misgivings that I turned on the television to try watching a baseball game today. Truth is I was exhausted after several busy months. The courts may not be open, but I’ve been in California and then Texas attending to cases. And new civil cases my office has filed require endless digital manipulation. I needed a break.             So I turned on the New York Yankees versus the Oakland Athletics. Yes, I root for the Yankees when I cannot watch the Chicago Cubs.

            I was surprised to see so few folks in the stands. It’s a beautiful day, why not head out to the ballpark? And while the Yankees are struggling, at least by my lights – I never forgive them for occupying anything other than first place – they are still the Yankees.

            Things looked grim once the A’s took a 4-0 lead. I was tempted to turn the game off. But then I noticed something refreshing. The announcers called the game. They weren’t talking about COVID-19, and, not once did I hear anything about “social justice.” I felt as though I had traveled back to a saner moment in time, a time in which a game was just a game.

            I left the television on as I did chores around the house.             And then the magic set in. It was a lazy summer afternoon. The Yankees clawed their way back into the game, one hit, one batter, at a time. Suddenly, the game was tied. Electricity was in the air. I returned to watch as the Yankees went on to win.

            I was eight years old again rooting for the Chicago Cubs from our tiny apartment near Wrigley Field. I was in middle school rooting for the Detroit Tigers, sitting in the stands of Tiger Stadium screaming as though the fate of the world turned on the game. When the last out was called, I stood and cheered to an empty house. But my heart was full.

            For the first time in 18-months I felt innocent again. Innocent, and grateful, especially to the announcers who let their love of the game control the narrative.

            We are more than fear and what divides.

            I gained a deeper appreciation today of why baseball is called the national pastime.

            I suspect I would have felt the same even had the Yankees lost, but I don’t know. Today I won life’s lottery.

           There’s nothing surprising about this. Death comes for us all. But he once promised me he’d live to be one hundred years old and invited me to his party. For twenty years, I called him a friend. All at once, where once there was vast intelligence and a defiant spirit, there is now an absence. He was 87.

            I did not know that aging required courage to endure loss after loss.

            I met Bailey when he was looking for a lawyer to represent a man with legal problems up and down the east coast. We had lunch at a private club in New Haven. I worried some at the lunch that he’d size me up as a lightweight and be done with me. He didn’t, and, soon enough, we spent weeks together working on issues in the client’s case.  I was a guest in his home; he was unfailingly gracious.

            He wasn’t perfect. None of us are. He was disbarred late in his career as a result of issues with the management of the financial affairs of a client, Claude DuBoc, a man accused of being a drug lord. When the client fired him, Lee could not quickly enough square the financial affairs between lawyer and client. He was sent to a jail cell for a spell – 44 days if memory serves – until he could make things right.

            The jail cell did not diminish the man.

            He fought for years to get his law license back, narrowly missing the chance by one vote in the Maine Supreme Court. There was a Miltonian sort of defiance in the man. I think of Satan in Paradise Lost: “All is not lost; the unconquerable will…. And courage never to submit or yield.” That was F. Lee Bailey.

            We spent a week or so in Florida once, sharing a condominium while working on a case. O. J. Simpson was innocent. Lee was certain. We sat late into the night while to told me his reasons. As we talked, we drank from a shared bottle of some expensive whiskey. Lee could hold his drinks. We talked into the early morning hours. I’m not sure I was able to follow him after a few drinks. Lee, however, held his liquor, describing it once as his “fuel.”

            I’ve worked with lawyers from coast to coast and never once met a lawyer who was better with facts. In complex cases, I’d bring my client to him – I once traveled with a client from Connecticut to see Bailey in Maine in a stretch limousine, and I’ll never forget the look of diners as we stopped for coffee along the route. Lee always found something in the facts I had missed.

            He seemed to hit the ground the running as a lawyer. He litigated Sam Sheppard’s case – the man who inspired film The Fugitive – to the U.S. Supreme Court, winning Sheppard a new trial after proving that Sheppard’s trial resembled a carnival, and not a courtroom. He represented the “Boston Strangler,” Albert DeSalvo, and Ernest Medina for charges related to the My Lai Massacre. And, of course, there was O.J.

            He was also a prolific writer. He wrote more than a million words in legal treatises, most about criminal defense. He loved the law, and believed that it could be used as a weapon. I can’t say whether he believed in justice; most good lawyers don’t harbor such beliefs. But he believed in the combat of trial. He never stopped being a Marine.

            For years, he was active with the American Polygraph Society. He believed in the efficacy of so-called lie detectors. He encouraged me to try to find a case to take to the U.S. Supreme Court on the admissibility of polygraphs. He had a brief ready to go. I’d bring him a client; he’d arrange for a retired FBI polygrapher to examine my client. We never made the record we wanted for the appeal he hoped to bring; the clients kept failing the test. But he never lost the appetite for the fight.

            I interviewed him not long ago on a podcast. He was talking about his new book, due out this month, The Truth About the O.J. Simpson Trial. I read it last month. It was classic Lee, acerbic, witty, to the point. Ironically, he died just as it was to be published.

            None of us get out of here alive. I get it. But I did not expect each new death to be a fresh wound. The idea that I will never be able to pick up the phone and ask a master questions about a case leaves me feeling more alone in a world suddenly less welcoming. I can’t say goodbye. He will always be larger than life to me.

           I imagine the sinners in Hell taking heart and God himself shaking a weary head. “F. Lee Bailey is coming,” the sinners say. “There is hope for us. He will plead our case.”

            And God?
   

        “The man will never stop talking,” he says as he shakes a weary head. God, it turns out, read Lee’s book, The Defense Never Rests.

            F. Lee Bailey is dead. It seems impossible. This truth does not liberate, it drills down someplace deep, striking the heart. Somedays it is enough to bleed.

           I’ve on only a handful of occasions taken a post down. I spent five years as an editorial writer, writing daily opinion pieces for newspapers. Once something appeared in print, it could never be recalled. There is something honorable about that. If you say it, own it. The electronic world fosters a species of cowardice. It’s too easy to remove something once it’s been said.

           But I did pull a piece I posted last year that was critical of Gerry Spence. I did so after someone whose opinion I value called me on it.

           You see, I now represent Gerry Spence in a dispute with the Trial Lawyers College he founded. There are suits pending in state and federal courts in Wyoming and in state court in California. (My application to appear pro hoc vice in California on his behalf is pending; I represent a party similarly situated to Spence in the Wyoming federal case.)

           How could I represent Spence and his interests while simultaneously being publicly critical of him? What’s more, why would I represent Spence, given the criticism?

           The caller was polite, and did not intend to shoot to kill, but his words found their mark.

           I pulled the piece, and write now, briefly, to explain why I did so.

           I am a sinner, through and through. I know most of the seven deadly sins intimately. I am vain, given to anger, to sloth, to envy. When Paul wrote “All have sinned and fallen short of the glory of God,” he didn’t know it, but he was writing about me.

           I attended the Trial Lawyers College in 1997. Why? I wanted to be a great lawyer, and Spence was a master. I looked at him, and thought, I can do as well or better. I’ll go learn from him.

           The college was 30 days long in those days. We spent the month of August on an old cattle ranch Spence once owned. Spence was generous and open with me. In a psychodrama, he played the father who abandoned me. I think he was startled when I placed a kiss upon his lips in a mock funeral. (I had never so kissed a man, other than my son before.)

           For the next couple of years, I was invited to be on the staff of the college. I traveled around the country on behalf of the college, seeing Spence in New York, California and other places. I was a guest in his home in Wyoming. In some twisted sort of way, I imagined him to become the father I never had. That’s not something he asked for. It is something I imposed on him. I never forgave him for not filling the role my real father walked away from fulfilling. I see that now.

           Of course, I came away disappointed. Some wounds don’t heal, and our efforts to balm them compound pain. What’s more, I realized I could not best Spence: He says he has never lost a criminal case; I’ve won many, but I’ve lost a lot, too, and my nights are heavy with the sights and sounds of men and women in despair, not to mention the suicides, despair from which I could not save them.

           I turned on Spence. Publicly, and bitterly. I did it on these pages.

           Thus, when litigation erupted between Spence and members of the college he founded, I delighted the way small-minded people do. I took pleasure in schadenfreude.

           When asked to represent him, I was stunned. Would a man I had turned on welcome me? He did so, with open arms, arms capable of embracing all my pettiness and more. It is this generosity that makes him a legend.

           Each and every person involved in the litigation involving Spence and the Trial Lawyers College came to the college out of respect for Spence. Those who remained declared their love of the man. Why can’t that love be summoned now to end the dispute?

           Spence is 92 years old. We should be celebrating the man and all that he did in court, and for all we lawyers who came to learn from him learned. Instead, good lawyers gird for internecine warfare. To what end?

           I am asking each and every member of the tribe, for that is what we call and called ourselves, to put aside rancor and to come together in the time that remains to honor a man who gave us all so much. We were all adults when we took from him, each responding with secret needs of our own; some, like mine, are simply too deep to be satisfied.

           Recall those days at the Ranch when you were summoned to address the demons holding you back? Why not a fresh resolve to do likewise now?

           I am representing Spence not because he is perfect, but, candidly, because he needs a lawyer. He created a mountain, and now that he is too frail to climb it, others seek to play at king of the hill. Build your own mountains, each of you. And do so now. Let’s spend the summer in a wild frenzy of reconciliation with a man who taught us to be better warriors.