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FOCUS: Andrew Weissmann | Should Trump Be Prosecuted? Andrew Weissman, The New York Times Weissman writes: "When the Biden administration takes office in 2021, it will face a unique, fraught decision: Should Donald Trump be criminally investigated and prosecuted?"
Being president should mean you are more accountable, not less, to the rule of law.
Any renewed investigative activity or a criminal prosecution would further divide the country and stoke claims that the Justice Department was merely exacting revenge. An investigation and trial would be a spectacle that would surely consume the administration’s energy.
But as painful and hard as it may be for the country, I believe the next attorney general should investigate Mr. Trump and, if warranted, prosecute him for potential federal crimes.
Normally at a point each month our readers kick in, chip-in and get RSN the budget it needs. That hasn’t happened this month.
Although we only need a tiny fraction of the readers who come to RSN contributing to fully sustain the organization, this month we haven’t even been able to meet that standard.
RSN: Marc Ash | What Progressives Want Marc Ash, Reader Supported News Ash writes: "Fortune 500 News loves to try to define what Progressives want. Voters always gravitate to Progressive policies, and that makes them a good vehicle with which corporate pundits can define and steer public opinion. But it really isn't so complicated. Let's have a look at what Progressives want, vintage 2020-2021."
Voting Rights Reform
Nothing changes without voting rights. It’s the gateway to reform and progress across the political spectrum. The Fortune 500 crowd and their Washington enablers well understand this, and that is why there are and always have been such elaborate and shameless efforts to suppress voting rights. Fix voting rights first, and the other agenda items will follow.
Progressives are unified behind the issue of voting rights reform.
Climate Change and the Environment
To say that climate change is a disaster understates the threat. Climate change is causing an ever-growing series of disasters all around the world. From raging wildfires to massive floods and storms of biblical proportion, the effects are severe and accelerating.
Progressives clearly want to be part of a global effort to combat climate change and protect the natural environment.
Healthcare/Medicare for All
Sounds redundant, but for-profit corporate healthcare still maintains its stranglehold on the US healthcare system, with no end in sight. Obamacare was a noble effort and is certainly better than what came before, but it’s no match for Medicare.
Obamacare has helped a great deal, but it does nothing to mitigate the healthcare industry’s profiteering, and it’s dying a death by a thousand paper cuts. Congress, the executive branch, and the courts all continue to chip away at its underpinnings.
Medicare has none of those problems. It’s a rock-solid 55-year-old LBJ-era institution. It has the infrastructure and the staying power to withstand challenges from all detractors. So then why not just go with Medicare? It’s the profits, stupid.
If people had the option to sign up for Medicare, they would — and the market would put the for-profit-healthcare-industry out of business without a single stroke of legislation. That’s why neither Republicans nor Democrats will allow for the expansion of Medicare. Their healthcare industry benefactors will not allow it.
Healthcare/Medicare for All is a bedrock Progressive issue.
Police Reform
How many deaths will it take? Policing in America is too violent. Each year in the US police kill roughly a thousand people. That’s bad for communities, bad for the police officers involved, bad for the rule of law, and most-importantly, totally unnecessary.
Progressives are committed to pressing for police reform.
An End to US Militarism and Colonialism
US foreign policy has been rooted in militarism for nearly two centuries. True diplomacy has been nothing more than a caged exhibit down at the State Department for decades.
Progressives want America to be a social, environmental, and economic partner with the rest of the world, not an enforcer and intimidator of other nations. Mitigation of catastrophic military undertakings has been a defining and uniting theme for the Progressive movement from its inception.
Human Rights
A lack of respect for basic human dignity has been at the root of every misguided episode in mankind’s history. Life, liberty, and the pursuit of happiness, in a real and tangible sense, is what Progressives want for all members of the extended human family.
It is attainable.
Marc Ash is the founder and former Executive Director of Truthout, and is now founder and Editor of Reader Supported News.
Reader Supported News is the Publication of Origin for this work. Permission to republish is freely granted with credit and a link back to Reader Supported News.
Sequestered in the White House and brooding out of public view after his election defeat, rageful and at times delirious in a torrent of private conversations, Trump was, in the telling of one close adviser, like “Mad King George, muttering, ‘I won. I won. I won.’ ”
However cleareyed Trump’s aides may have been about his loss to President-elect Joe Biden, many of them nonetheless indulged their boss and encouraged him to keep fighting with legal appeals. They were “happy to scratch his itch,” this adviser said. “If he thinks he won, it’s like, ‘Shh . . . we won’t tell him.’ ”
Trump campaign pollster John McLaughlin, for instance, discussed with Trump a poll he had conducted after the election that showed Trump with a positive approval rating, a plurality of the country who thought the media had been “unfair and biased against him” and a majority of voters who believed their lives were better than four years earlier, according to two people familiar with the conversation, who spoke on the condition of anonymity to discuss private conversations. As expected, Trump lapped it up.
The result was an election aftermath without precedent in U.S. history. With his denial of the outcome, despite a string of courtroom defeats, Trump endangered America’s democracy, threatened to undermine national security and public health, and duped millions of his supporters into believing, perhaps permanently, that Biden was elected illegitimately.
Trump’s allegations and the hostility of his rhetoric — and his singular power to persuade and galvanize his followers — generated extraordinary pressure on state and local election officials to embrace his fraud allegations and take steps to block certification of the results. When some of them refused, they accepted security details for protection from the threats they were receiving.
“It was like a rumor Whac-A-Mole,” said Georgia Secretary of State Brad Raffensperger. Despite being a Republican who voted for Trump, Raffensperger said he refused repeated attempts by Trump allies to get him to cross ethical lines. “I don’t think I had a choice. My job is to follow the law. We’re not going to get pushed off the needle on doing that. Integrity still matters.”
All the while, Trump largely abdicated the responsibilities of the job he was fighting so hard to keep, chief among them managing thecoronaviruspandemic as the numbers of infections and deaths soared across the country. In an ironic twist, the Trump adviser tapped to coordinate the post-election legal and communications campaign, David Bossie, tested positive for the virus a few days into his assignment and was sidelined.
Only on Nov. 23 did Trump reluctantly agree to initiate a peaceful transfer of power by permitting the federal government to officially begin Biden’s transition — yet still he protested that he was the true victor.
The 20 days between the election on Nov. 3 and the greenlighting of Biden’s transition exemplified some of the hallmarks of life in Trump’s White House: a government paralyzed by the president’s fragile emotional state; advisers nourishing his fables; expletive-laden feuds between factions of aides and advisers; and a pernicious blurring of truth and fantasy.
Though Trump ultimately failed in his quest to steal the election, his weeks-long jeremiad succeeded in undermining faith in elections and the legitimacy of Biden’s victory.
This account of one of the final chapters in Trump’s presidency is based on interviews with 32 senior administration officials, campaign aides and other advisers to the president, as well as other key figures in his legal fight, many of whom spoke on the condition of anonymity to share details about private discussions and to candidly assess the situation.
In the days after the election, as Trump scrambled for an escape hatch from reality, the president largely ignored his campaign staff and the professional lawyers who had guided him through the Russia investigation and the impeachment trial, as well as the army of attorneys who stood ready to file legitimate court challenges.
Instead, Trump empowered loyalists who were willing to tell him what he wanted to hear — that he would have won in a landslide had the election not been rigged and stolen — and then to sacrifice their reputations by waging a campaign in courtrooms and in the media to convince the public of that delusion.
The effort culminated Nov. 19, when lawyers Rudolph W. Giuliani, Jenna Ellis and Sidney Powell spoke on the president’s behalf at the headquarters of the Republican National Committee to allege a far-reaching and coordinated plot to steal the election for Biden. They argued that Democratic leaders rigged the vote in a number of majority-Black cities, and that voting machines were tampered with by communist forces in Venezuela at the direction of Hugo Chávez, the Venezuelan leader who died seven years ago.
There was no evidence to support any of these claims.
The Venezuelan tale was too fantastical even for Trump, a man predisposed to conspiracy theories who for years has feverishly spread fiction. Advisers described the president as unsure about the latest gambit — made worse by the fact that what looked like black hair dye mixed with sweat had formed a trail dripping down both sides of Giuliani’s face during the news conference. Trump thought the presentation made him “look like a joke,” according to one campaign official who discussed it with him.
“I, like everyone else, have yet to see any evidence of it, but it’s a thriller — you’ve got Chávez, seven years after his death, orchestrating this international conspiracy that politicians in both parties are funding,” a Republican official said facetiously. “It’s an insane story.”
Aides said the president was especially disappointed in Powell when Tucker Carlson, host of Fox News’s most-watched program,assailed her credibilityon the air after she declined to provide any evidence to support her fraud claims.
Trump pushed Powell out. And, after days of prodding by advisers, he agreed to permit the General Services Administration to formally initiate the Biden transition — a procedural step that amounted to a surrender. Aides said this was the closest Trump would probably come to conceding the election.
Yet even that incomplete surrender was short-lived. Trump went on to falsely claim that he “won,” that the election was “a total scam” and that his legal challenges would continue “full speed ahead.” He spent part of Thanksgiving calling advisers to ask if they believed he really had lost the election, according to a person familiar with the calls. “Do you think it was stolen?” the person said Trump asked on the holiday.
But, his advisers acknowledged, that was largely noise from a president still coming to terms with losing. As November was coming to a close, Biden rolled out his Cabinet picks, states certified his wins, electors planned to make it official when theelectoral collegemeets Dec. 14 and federal judges spoke out.
A simple and clear refutation of the president came Friday from a Trump appointee, when Judge Stephanos Bibas of the U.S. Court of Appeals for the 3rd Circuit wrote a unanimous opinionrejecting the president’s requestfor an emergency injunction to overturn the certification of Pennsylvania’s election results.
“Free, fair elections are the lifeblood of our democracy,” Bibas wrote. “Charges of unfairness are serious. But calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here.”
For Trump, it was over.
“Not only did our institutions hold, but the most determined effort by a president to overturn the people’s verdict in American history really didn’t get anywhere,” said William A. Galston, chair of the governance studies program at the Brookings Institution. “It’s not that it fell short. It didn’t get anywhere. This, to me, is remarkable.”
'There has to be a conspiracy'
Trump’s devolution into disbelief of the results began on election night in the White House, where he joined campaign manager Bill Stepien, senior advisers Jared Kushner and Jason Miller, and other top aides in a makeshift war room to monitor returns.
In the run-up to the election, Trump was aware of the fact — or likelihood, according to polls — that he could lose. He commented a number of times to aides, “Oh, wouldn’t it be embarrassing to lose to this guy?”
But in the final stretch of the campaign, nearly everyone — including the president — believed he was going to win. And early on election night, Trump and his team thought they were witnessing a repeat of 2016, when he defied polls and expectations to build an insurmountable lead in the electoral college.
Then Fox News called Arizona for Biden.
“He was yelling at everyone,” a senior administration official recalled of Trump’s reaction. “He was like, ‘What the hell? We were supposed to be winning Arizona. What’s going on?’ He told Jared to call [News Corp. Executive Chairman Rupert] Murdoch.”
Efforts by Kushner and others on the Trump team to persuade Fox to take back its Arizona call failed.
Trump and his advisers were furious, in part because calling Arizona for Biden undermined Trump’s scattershot plan to declare victory on election night if it looked as though he had sizable leads in enough states.
With Biden now just one state away from clinching a majority 270 votes in the electoral college and the media narrative turned sharply against him, Trump decided to claim fraud. And his team set out to try to prove it.
Throughout the summer and fall, Trump had laid the groundwork for claiming a “rigged” election, as he often termed it, warning of widespread fraud. Former chief of staff John F. Kelly told others that Trump was “getting his excuse ready for when he loses the election,” according to a person who heard his comments.
In June, during an Oval Office meeting with political advisers and outside consultants, Trump raised the prospect of suing state governments for how they administer elections and said he could not believe they were allowed to change the rules. All the states, he said, should follow the same rules. Advisers told him that he did not want the federal government in charge of elections.
Trump also was given several presentations by his campaign advisers about the likely surge in mail-in ballots — in part because many Americans felt safer during the pandemic voting by mail than in person — and was told they would go overwhelmingly against him, according to a former campaign official.
Advisers and allies, including Senate Majority Leader Mitch McConnell (R-Ky.), encouraged Trump to try to close the gap in mail-in voting, arguing that he would need some of his voters, primarily seniors, to vote early by mail. But Trump instead exhorted his supporters not to vote by mail, claiming they could not trust that their ballots would be counted.
“It was sort of insane,” the former campaign official said.
Ultimately, it was the late count of mail-in ballots that erased Trump’s early leads in Georgia, Pennsylvania, Wisconsin and other battleground states and propelled Biden to victory. As Trump watched his margins shrink and then reverse, he became enraged, and he saw a conspiracy at play.
“You really have to understand Trump’s psychology,” said Anthony Scaramucci, a longtime Trump associate and former White House communications director who is now estranged from the president. “The classic symptoms of an outsider is, there has to be a conspiracy. It’s not my shortcomings, but there’s a cabal against me. That’s why he’s prone to these conspiracy theories.”
This fall, deputy campaign manager Justin Clark, Republican National Committee counsel Justin Riemer and others laid plans for post-election litigation, lining up law firms across the country for possible recounts and ballot challenges, people familiar with the work said. This was the kind of preparatory work presidential campaigns typically do before elections. Giuliani, Ellis and Powell were not involved.
This team had some wins in court against Democrats in a flurry of lawsuits in the months leading up to the election, on issues ranging from absentee ballot deadlines to signature-matching rules.
But Trump’s success rate in court would change considerably after Nov. 3. The arguments that began pouring in from Giuliani and others on Trump’s post-election legal team left federal judges befuddled. In one Pennsylvania case, some lawyers left the Trump team before Giuliani argued the case to a judge. Giuliani had met with the lawyers and wanted to make arguments they were uncomfortable making, campaign advisers said.
For example, the Trump campaign argued in federal court in Philadelphia two days after the election to stop the count because Republican observers had been barred. Under sharp questioning from Judge Paul S. Diamond, however, campaign lawyers conceded that Trump in fact had “a nonzero number of people in the room,” leaving Diamond audibly exasperated.
“I’m sorry, then what’s your problem?” Diamond asked.
'How do we get to 270?'
In the days following the election, few states drew Trump’s attention like Georgia, a once-reliable bastion of Republican votes that he carried in 2016 but appeared likely to lose narrowly to Biden as late-remaining votes were tallied.
And few people attracted Trump’s anger like Gov. Brian Kemp, the state’s Republican governor, who rode the president’s coattails to his own narrow victory in 2018.
A number of Trump allies tried to pressure Raffensperger, the Republican secretary of state, into putting his thumb on the scale. Republican Sens. David Perdue and Kelly Loeffler — both forced into runoff elections on Jan. 5 — demanded Raffensperger’s resignation. Sen. Lindsey O. Graham (R-S.C.), a Trump friend who chairs the powerful Senate Judiciary Committee, called Raffensperger to seemingly encourage him to find a way to toss legal ballots.
But Kemp, who preceded Raffensperger as secretary of state, would not do Trump’s bidding. “He wouldn’t be governor if it wasn’t for me,” Trump fumed to advisers earlier this month as he plotted out a call to scream at Kemp.
In the call, Trump urged Kemp to do more to fight for him in Georgia, publicly echo his claims of fraud and appear more regularly on television. Kemp was noncommittal, a person familiar with the call said.
Raffensperger said he knew Georgia was going to be thrust into the national spotlight on Election Day, when dramatically fewer people turned out to vote in person than the Trump campaign needed for a clear win following a surge of mail voting dominated by Democratic voters.
But he said it had never occurred to him to go along with Trump’s unproven allegations because of his duty to administer elections. Raffensperger said his strategy was to keep his head down and follow the law.
“People made wild accusations about the voting systems that we have in Georgia,” Raffensperger said. “They were asking, ‘How do we get to 270? How do you get it to Congress so they can make a determination?’ ” But, he added, “I’m not supposed to put my thumb on the Republican side.”
Trump fixated on a false conspiracy theory that the machines manufactured by Dominion Voting Systems and used in Georgia and other states had been programmed to count Trump votes as Biden votes. In myriad private conversations, the president would find a way to come back to Dominion. He was obsessed.
“Do you think there’s really something here? I’m hearing . . . ” Trump would say, according to one senior official who discussed it with him.
Raffensperger said Republicans were only harming themselves by questioning the integrity of the Dominion machines. He warned that these kinds of baseless allegations could discourage Republicans from voting in the Senate runoffs. “People need to get a grip on reality,” he said.
More troubling to Raffensperger were the many threats he and his wife, Tricia, have received over the past few weeks — and a break-in at another family member’s home. All of it has prompted him to accept a state security detail.
“If Republicans don’t start condemning this stuff, then I think they’re really complicit in it,” he said. “It’s time to stand up and be counted. Are you going to stand for righteousness? Are you going to stand for integrity? Or are you going to stand for the wild mob? You wanted to condemn the wild mob when it’s on the left side. What are you going to do when it’s on our side?”
On Nov. 20, after Raffensperger certified the state’s results, Kemp announced that he would make a televised statement, stoking fears that the president might have finally gotten to the governor.
“This can’t be good,” Jordan Fuchs, a Raffensperger deputy, wrote in a text message.
But Kemp held firm and formalized the certification.
“As governor, I have a solemn responsibility to follow the law, and that is what I will continue to do,” Kemp said. “We must all work together to ensure citizens have confidence in future elections in our state.”
'A hostile takeover'
On Nov. 7, four days after the election, every major news organization projected that Biden would win the presidency. At the same time, Giuliani stood before news cameras in the parking lot of Four Seasons Total Landscaping in Philadelphia, near an adult-video shop and a crematorium, to detail alleged examples of voter fraud.
The contrast that day between Giuliani’s humble, eccentric surroundings and Biden’s and Vice President-elect Kamala D. Harris’s victory speeches on a grand, blue-lit stage in Wilmington, Del., underscored the virtual impossibility of Trump’s quest to overturn the results.
Also that day, Stepien, Clark, Miller and Bossie briefed Trump on a potential legal strategy for the president’s approval. They explained that prevailing would be difficult and involve complicated plays in every state that could stretch into December. They estimated a “5 to 10 percent chance of winning,” one person involved in the meeting said.
Trump signaled that he understood and agreed to the strategy.
Around this time, some lawyers around Trump began to suddenly disappear from the effort in what some aides characterized as an attempt to protect their reputations. Former Florida attorney general Pam Bondi, who had appeared at a news conference with Giuliani right after the election, ceased her involvement after the first week.
“Literally only the fringy of the fringe are willing to do pressers, and that’s when it became clear there was no ‘there’ there,” a senior administration official said.
A turning point for the Trump campaign’s legal efforts came on Nov. 13, when its core team of professional lawyers saw the writing on the wall. The U.S. Court of Appeals for the 3rd Circuit in Philadelphia delivered a stinging defeat to Trump allies in a lawsuit trying to invalidate all Pennsylvania ballots received after Election Day.
The decision didn’t just reject the claim; it denied the plaintiffs standing in any federal challenge under the Constitution’s electors clause — an outcome that Trump’s legal team recognized as a potentially fatal blow to many of the campaign’s challenges in the state.
That is when a gulf emerged between the outlooks of most lawyers on the team and of Giuliani, who many of the other lawyers thought seemed “deranged” and ill-prepared to litigate, according to a person familiar with the campaign’s legal team. Some of the Trump campaign and Republican Party lawyers sought to even avoid meetings with Giuliani and his team. When asked for evidence internally for their most explosive claims, Giuliani and Powell could not provide it, the other advisers said.
Giuliani and his protegee, Ellis, both striving to please the president, insisted Trump’s fight was not over. Someone familiar with their strategy said they were “performing for an audience of one,” and that Trump held Giuliani in high regard as “a fighter” and as “his peer.”
Tensions within Trump’s team came to a head that weekend, when Giuliani and Ellis staged what the senior administration official called “a hostile takeover” of what remained of the Trump campaign.
On the afternoon of Nov. 13, a Friday, Trump called Giuliani from the Oval Office while other advisers were present, including Vice President Pence; White House counsel Pat Cipollone; Johnny McEntee, the director of presidential personnel; and Clark.
Giuliani, who was on speakerphone, told the president that he could win and that his other advisers were lying to him about his chances. Clark called Giuliani an expletive and said he was feeding the president bad information. The meeting ended without a clear path, according to people familiar with the discussion.
The next day, a Saturday, Trump tweeted out that Giuliani, Ellis, Powell and others were now in charge of his legal strategy. Ellis startled aides by entering the campaign’s Arlington headquarters and instructing staffers that they must now listen to her and Giuliani.
“They came in one day and were like, ‘We have the president’s direct order. Don’t take an order if it doesn’t come from us,’ ” a senior administration official recalled.
Clark and Miller pushed back, the official said. Ellis threatened to call Trump, to which Miller replied, “Sure, let’s do this,” said a campaign adviser.
It was a fiery altercation, not unlike the many that had played out over the past four years in the corridors of the West Wing. The outcome was that Giuliani and Ellis, as well as Powell — the “elite strike force,” as they dubbed themselves — became the faces of the president’s increasingly unrealistic attempts to subvert democracy.
The strategy, according to a second senior administration official, was, “Anyone who is willing to go out and say, ‘They stole it,’ roll them out. Rudy Giuliani, Jenna Ellis, Sidney Powell. Send [former acting director of national intelligence] Ric Grenell out West. Send [American Conservative Union Chairman] Matt Schlapp somewhere. Just roll everybody up who is willing to do it into a clown car, and when it’s time for a press conference, roll them out.”
Trump and his allies made a series of brazen legal challenges, including in Nevada, where conservative activist Sharron Angle asked a court to block certification of the results in Clark County, by far the state’s most populous county, and order a wholesale do-over of the election.
Clark County Judge Gloria Sturman was incredulous.
“How do you get to that’s sufficient to throw out an entire election?” she said. She noted the practical implications of failing to certify the election, including that every official elected on Nov. 3 would be unable to take office in the new year, including herself.
Sturman denied the request. Not only was there no evidence to support the claims of widespread voter fraud, she said, but “as a matter of public policy, this is just a bad idea.”
'A flavor of the truth'
As Trump’s legal challenges failed in court, he employed another tactic to try to reverse the result: apublic pressure campaignon state and local Republican officials to manipulate the electoral system on his behalf.
“As was the case throughout his business career, he viewed the rules as instruments to be manipulated to achieve his chosen ends,” said Galston of the Brookings Institution.
Trump’s highest-profile play came in Michigan, where Biden was the projected winner and led by more than 150,000 votes. On Nov. 17, Trump called a Republican member of the board of canvassers in Wayne County, which is where Detroit is located and is the state’s most populous county. After speaking with the president, the board member, Monica Palmer, attempted to rescind her vote to certify Biden’s win in Wayne.
Then Trump invited the leaders of Michigan’s Republican-controlled state Senate and House to meet him at the White House, apparently hoping to coax them to block certification of the results or perhaps even to ignore Biden’s popular-vote win and seat Trump electors if the state’s canvassing board deadlocked. Such a move was on shaky legal ground, but that didn’t stop the president from trying.
Republican and Democratic leaders, including current and former governors and members of Congress, immediately launched a full-court press to urge the legislative leaders to resist Trump’s entreaties. The nonpartisan Voter Protection Program was so worried that it commissioned a poll to find out how Michiganders felt about his intervention. The survey found that a bipartisan majority did not like Trump intervening and believed that Biden won the state.
House Speaker Lee Chatfield and Senate Majority Leader Mike Shirkey said they accepted the invitation as a courtesy and issued a joint statement immediately after the meeting: “We have not yet been made aware of any information that would change the outcome of the election in Michigan.”
A person familiar with their thinking said they felt they could not decline the president’s invitation — plus they saw an opportunity to deliver to Trump “a flavor of the truth and what he wasn’t hearing in his own echo chamber,” as well as to make a pitch for coronavirus relief for their state.
There was never a moment when the lawmakers contemplated stepping in on Trump’s behalf, because Michigan law does not allow it, this person said. Before the trip, lawyers for the lawmakers told their colleagues in the legislature that there was nothing feasible in what Trump was trying to do, and that it was “absolute crazy talk” for the Michigan officials to contemplate defying the will of the voters, this person added.
Trump was scattered in the meeting, interrupting to talk about the coronavirus when the lawmakers were talking about the election, and then talking about the election when they were talking about the coronavirus, the person said. The lawmakers left with the impression that the president understood little about Michigan law, but also that his blinders had fallen off about his prospects for reversing the outcome, the person added.
No representatives from Trump’s campaign attended the meeting, and advisers talked Trump out of scheduling a similar one with Pennsylvania officials.
The weekend of Nov. 21 and on Monday, Nov. 23, Trump faced mounting pressure from Republican senators and former national security officials — as well as from some of his most trusted advisers — to end his stalemate with Biden andauthorize the General Services Administrationto initiate the transition. The bureaucratic step would allow Biden and his administration-in-waiting to tap public funds to run their transition, receive security briefings and gain access to federal agencies to prepare for the Jan. 20 takeover.
Trump was reluctant, believing that by authorizing the transition, he would in effect be conceding the election. Over multiple days, White House Chief of Staff Mark Meadows, Cipollone and Jay Sekulow, one of the president’s personal attorneys, explained to Trump that the transition had nothing to do with conceding and that legitimate challenges could continue, according to someone familiar with the conversations.
Late on Nov. 23, Trump announced that he had allowed the transition to move forward because it was “in the best interest of our Country,” but he kept up his fight over the election results.
The next day, after a conversation with Giuliani, Trump decided to visit Gettysburg, Pa., on Nov. 25, the day before Thanksgiving, for a news conference at a Wyndham Hotel to highlight alleged voter fraud. The plan caught many close to the president by surprise, including RNC Chairwoman Ronna McDaniel, three officials said. Some tried to talk Trump out of the trip, but he thought it was a good idea to appear with Giuliani.
A few hours before he was scheduled to depart, the trip was scuttled. “Bullet dodged,” said one campaign adviser. “It would have been a total humiliation.”
That afternoon, Trump called in to the meeting of GOP state senators at the Wyndham, where Giuliani and Ellis were addressing attendees. He spoke via a scratchy connection to Ellis’s cellphone, which she played on speaker. At one point, the line beeped to signal another caller.
“If you were a Republican poll watcher, you were treated like a dog,” Trump complained, using one of his favorite put-downs, even though many people treat dogs well, like members of their own families.
“This election was lost by the Democrats,” he said, falsely. “They cheated.”
Trump demanded that state officials overturn the results — but the count had already been certified. Pennsylvania’s 20 electoral votes will be awarded to Biden.
Sens. David Perdue and Kelly Loeffler speak at a campaign event this month at a restaurant in Cumming, Ga. Both are competing in runoff elections in January that will determine which party controls the Senate. (photo: Megan Varner/Getty Images)
Republican Infighting Threatens GOP Chances in Georgia Senate Runoffs Emma Hurt, NPR Hurt writes: "Campaigning in Georgia's two Senate runoffs is well underway, but Republicans are still fighting over the state's November election and casting doubt on its voting system without evidence."
The possible effect of the mixed messaging on Republican turnout in January is worrying some of Georgia's conservatives.
The state's Republican election officials have repeatedly asserted there's been no evidence of widespread fraud.
But incumbent Republican Sens. David Perdue and Kelly Loeffler have called on Republican Secretary of State Brad Raffensperger to resign without evidence. President Trump has alsocriticizedRaffensperger andcalled outRepublican Gov. Brian Kemp, who received Trump's endorsement in 2018.
"We could be handing [Senate Minority Leader] Chuck Schumer control of the Senate by the Republican disarray," conservative talk show host Erick Ericksonsaid last weekon WSB radio. "It's a little bit frustrating to see the Republicans squabbling with each other over this when frankly there's no sign that the election was stolen in Georgia."
Trump tried to counter these concerns on Friday,tweetingthat though the November election "was a total scam ... we must get out and help David and Kelly, two GREAT people. Otherwise we are playing right into the hands of some very sick people."
Donald Trump Jr. has alsocalledthe suggestion of skipping the January runoffs "nonsense."
Kemp echoed criticism of the election system while formally certifying the results last week, awarding Joe Biden the state's 16 Electoral College votes.
"I've heard directly from countless Georgians. They expect better, and they deserve better," Kemp said of several thousand uncounted ballots discovered during an audit. The state's election officials have said the audit's margin of error was within the expected error rate of hand-counting ballots.
"We are going to suppress our own vote"
Still, Republicans includingVice President Pence, who campaigned in Georgia on Nov. 20, are urging supporters to trust the system again in January: "Vote, Georgia, vote to reelect David Perdue and Kelly Loeffler to the United States Senate," he called out to hundreds gathered at an outdoor rally in Canton, Ga.
"You're seeing many Republicans now speaking out and saying, 'If we undermine faith in our election system, if we tell people that perhaps their votes didn't count, we are going to suppress our own vote," said Brian Robinson, a Georgia Republican strategist.
"Typically you can expect Democrats to take potshots at Republicans, but when Republicans take them at each other it's not helpful," Raffensperger saidin an NPR interview.
"I'm sure Democrats have just gone out and bought a box of popcorn and are enjoying the show. We need to really unify as Republicans and make sure that we help our senators get across."
A pro-Trump Georgia lawyer, Lin Wood, who tried unsuccessfully to stop the state's election certification,vowednot to vote in the runoffs if the "unlawful" November election isn't addressed.
He is requesting a special session to change election law, an idea that Kemp, Lt. Gov. Geoff Duncan and Georgia House Speaker David Ralston have rejected because it would result in "endless litigation."
"With enough write-ins in the Georgia senate race, we can tilt the balance in Georgia in Trump's favor!"the group's website said. "If we can do this, we have a real chance at getting these RINO senators to act on the illegitimate and corrupt election presided over by a Democrat party that is invested in the Communist takeover of Our Great Nation."
Writing in candidates is not allowed in the upcoming races, because they're runoffs between the top two candidates from the Nov. 3 election.
Voters such as Kristen Jones, who attended the Canton rally headlined by Pence, have questions about the system going into January.
"How can you have an election after it was completely fraudulent? I mean that should be every Georgian's question right now," she said.
Jones said she will still vote again, but she knows someone who has pledged never to do so after the November election. "That just made me so terribly sad," she said.
GOP advantages
Republicans have advantages going into these elections. Historically, they've always won runoffs in Georgia, and Republicans in both Senate racesearnedmore votes than Democrats in November, even as Biden carried the top of the ticket.
Plus, Robinson argued, Republicans have the upper hand in terms of motivation.
While Democrats have accomplished their goal of defeating Trump, Republicans still have a lot on the line.
"[Democrats are] polishing their trophy and beginning to settle in for a long winter's nap now," he said.
"It's going to be much harder to energize [Democrats] with a scary message, motivate them with fear. It's very easy to motivate Republican voters with fear because Republican voters are terrified of what's coming down the pike if Biden, [House Speaker Nancy] Pelosi and Schumer control all the levers of power in Washington."
But the big unknown is what kind of damage the election integrity questions will do to Republican turnout.
"We don't know how voters are going to respond to this," Robinson said. "We just don't know."
"With the runoffs, the margins are going to be close. And so you need to get every single voter back out, and I don't think this is the way to do it," Democratic state Sen. Jen Jordan said of the Republicans' election questions.
She said the Democrats' past history of losing runoffs in Georgia doesn't apply, becausethe level of resources and excitement is unprecedented. Plus, she said, Democrats have an "X factor" this time around: hope, because Biden narrowly won the state.
"That light at the end of the tunnel is really going to push a lot of Democrats who may would normally say well, 'Why does it matter?' " she said.
"They know that it absolutely does, and they could be the one vote that pushes it over."
After a hand recount of the ballots, Trump's campaign asked for a machine recount of those same ballots, which is currently underway.
It's the third time in less than a month that Georgia's presidential ballots have been tallied.
Biden Aims to Appoint Liberal Judges After Trump's Conservative Push Jess Bravin, The Wall Street Journal Bravin writes: "President-elect Joe Biden in January will begin an effort to recalibrate the federal judiciary with more liberal appointees who embrace a robust judicial role in addressing national problems and protecting an evolving spectrum of individual rights, a shift from the conservative appointees under President Trump."
President-elect will seek nominees who see robust role for judiciary in addressing national problems, protecting individual rights
“Joe Biden thinks the law should be interested in protecting the little person,” said Cynthia Hogan, who served as Mr. Biden’s counsel when he was vice president and on the Senate Judiciary Committee. “Not to determine an outcome, but to say people should not be at a disadvantage because they’re working class, they’re poor, they’re Black, they’re women, they’re immigrants.”
Biden advisers say they will have compiled a list of potential nominees by Inauguration Day—including a short list for the Supreme Court, where the eldest justice, President Clinton appointee Stephen Breyer, is 82 years old.
Mr. Trump and Senate Republicans are determined to leave no vacancies for Mr. Biden to fill. But once he takes office, Clinton and Obama appointees might begin to step down with the assurance that a Democratic president can appoint like-minded successors.
Mr. Biden’s ability to appoint judges could be further constrained if Republicans maintain control of the U.S. Senate. The chamber’s majority is at stake in two Senate runoff races on Jan. 5 in Georgia. Unless Democrats win both, Sen. Mitch McConnell (R., Ky.), whose top objective has been conservative control of the judiciary, will remain majority leader.
In a Republican Senate, Mr. Biden’s nominations would be managed by Sen. Charles Grassley (R., Iowa), who is expected to reclaim the Judiciary Committee chairmanship. Mr. Grassley, who recently tested positive for coronavirus, and Mr. Biden served there together for years.
“They are both the old-school-type senators,” able in the past to cut deals that made the institution function, said a Senate Republican aide. But Republicans are cautious about chances for compromise. “Is it the same Joe Biden that Mitch McConnell and Chuck Grassley are used to working with?” the aide said.
Mr. McConnell’s office had no comment, other than referring to the Republican leader’s intent to continue confirming Trump nominees through year’s end.
Mr. Biden’s judicial philosophy is rooted in the liberal approach the Supreme Court took in the 1950s and 1960s under Chief Justice Earl Warren, when it expanded individual rights, enforced protections for criminal defendants and dismantled state-enforced racial segregation in schools and public places.
His expectations about congressional action were tempered through years on the Senate Judiciary Committee, where he served as ranking Democrat and then chairman from 1981 to 1995. During his tenure, he oversaw the defeat of conservative Robert Bork for a seat on the Supreme Court, and the subsequent confirmation of another conservative, Justice Clarence Thomas, both of whom Mr. Biden opposed.
Mr. Biden considers judicial appointments a priority, advisers say, even if problems such as the coronavirus pandemic, economic recession and climate change claim his immediate attention. He is the first former Senate Judiciary Committee chairman to be elected president since Martin Van Buren in 1836.
“Biden taught constitutional law. He’s written about it. He’s thought a lot about this. And he’s probably played a bigger role in selecting justices than almost anybody in recent history,” said Mark Gitenstein, a former Judiciary Committee chief counsel under Mr. Biden. “We want to have as many vacancies as possible and get as many modern progressives in those slots as we can.”
Harvard law professor Laurence Tribe, an informal Biden adviser since the 1980s, said Mr. Biden believes in strong “national governmental power to deal with emerging problems,” a liberal constitutional approach that the Supreme Court embraced during the New Deal and that underpins federal initiatives from Social Security to the Civil Rights Act of 1964.
At the same time, Mr. Biden sees the Constitution protecting individuals not through “a laundry list of rights, but a set of fundamental values and principles,” Mr. Tribe said. That approach has led to Supreme Court decisions that invalidated bans on contraceptives, recognized abortion rights and entitled same-sex couples to marry, which Mr. Biden endorsed before President Barack Obama, Mr. Tribe noted.
Ms. Hogan said Mr. Obama assigned Mr. Biden to lead the search when a vacancy arose in 2009. He recommended then-Judge Sonia Sotomayor, who rose from a Bronx, N.Y., housing project to a federal appeals court. Another member of the liberal wing on the court, Justice Elena Kagan, also carried a Biden imprint; she had worked for him at the Judiciary Committee during the late Justice Ruth Bader Ginsburg’s confirmation.
There is no question that Biden nominees will look different from those selected by Mr. Trump, who relied on leaders of conservative groups such as the Federalist Society to recommend candidates. Mr. Trump appointed more than 200 federal judges, of whom about 75% were men and 85% were white, according to the Pew Research Center. In contrast, some 45% of Obama appointees were women and 35% nonwhite.
“We want to make sure that the courts, and not just the Supreme Court, really are a mirror of America,” said Ted Kaufman, a longtime Biden confidant and former Delaware senator who is co-chairman of the presidential transition.
During the campaign, Mr. Biden said he intended to appoint the first Black woman to the Supreme Court.
Conservative activists are likely to strenuously resist Mr. Biden’s Supreme Court picks—and to some it is personal. Judge Bork’s rejection by the Democratic-controlled Senate, in a 58-42 vote that included six Republicans voting against him, remains an open wound for many conservatives more than 30 years later.
“Biden led the charge, and he was indistinguishable from [Sen. Edward] Kennedy and the rest of them,” said John Bolton, who studied under Mr. Bork at Yale Law School and, as a Reagan Justice Department official, worked on the Bork nomination. “Conservatives never forgot that.”
The justice ultimately confirmed to the seat, Anthony Kennedy, leaned conservative. But as a swing vote whose opinions curbed some criminal punishments and recognized LGBT rights, Justice Kennedy shared the view, as Mr. Biden put it during his confirmation hearings, that “our rights can expand with America’s proud and evolving heritage of liberty.”
Mr. Gitenstein said there was some irony that Mr. Biden will take office just as the Supreme Court firewall he helped build against conservative jurisprudence collapsed, after Mr. Trump appointed Justice Brett Kavanaugh to succeed Justice Kennedy.
“We did a good job in the Bork fight and it took them 30 years to reverse it,” Mr. Gitenstein said. “But they did.”
Mr. Biden could also meet resistance from his left flank. Liberal groups say that ethnic and gender diversity isn’t enough.
“The previous two Democratic administrations made diversity a priority,” but most appointees “were prosecutors or came from large corporate law firms,” said Nan Aron, president of the Alliance for Justice. Progressive organizations are working to identify a broader range of candidates—“public-interest lawyers, civil rights lawyers, public defenders, plaintiffs’ lawyers,” Ms. Aron said, as well as legal academics.
Mr. Biden in the 1980s positioned himself against the Reagan administration’s campaign for “original intention” jurisprudence—an antecedent of the originalist method espoused by Trump appointees such as Justice Amy Coney Barrett.
Still, Mr. Biden didn’t follow liberal orthodoxy in lockstep. While personally opposed to the death penalty, he disagreed with justices who concluded that the Constitution prohibited it. And though he is a longtime supporter of a woman’s right to an abortion, he was critical of the reasoning behind the 1973 precedent recognizing them; “I don’t think Roe is great constitutional law,” he told aides, according to Mr. Gitenstein’s account of the Bork nomination, “Matters of Principle.”
Michelle Durden stands in her backyard in Jacksonville, N.C., on Nov. 16, 2020. (photo: Ben Alper/The Intercept)
How the Criminal Justice System Fails People With Mental Illness Jordan Smith, The Intercept Smith writes: "Durden was stunned. Since then, she has struggled to understand a criminal justice system that she feels has aggressively ignored her son's deepening mental health crisis, which is also what she believes prompted him to flee the cops in the first place."
“I found your baby,” Michelle Durden recalls the police officer saying after her son went missing. “He’s alive. And he’s in jail.”
t first, Michelle Durden thought her eldest son, Cameron Davis, was just going through some early 20s growing pains. He dropped out of college and quit his job. He began to lose weight and grow his hair long. He spent a lot of time in his room, teaching himself to play guitar. He withdrew from friends and family.
“He was just a good kid. He had a genius IQ, just smart, nice to everybody; loves old people, dogs, the whole thing,” she said. “And then he just got weird.”
Perhaps, Durden and her husband thought, Davis was just trying to find himself. They never considered there might be something else going on. So, in the fall of 2018, they packed Davis into his Ford Fiesta with his clothes, guitars and amplifier, some groceries and cash, and waved goodbye as the 23-year-old set off from their home in North Carolina to Stockton, California, where he would stay with his younger brother, Kevin.
Kevin helped Davis settle in and even got him a job at a vineyard. But soon, things went sideways. Davis was fired for ignoring his duties and instead lying in the grass staring at the sky. He began talking to himself, laughing inappropriately, and became paranoid around Kevin’s friends. It all came to a head late one night in January 2019, when Kevin called his mother. Davis was in the background yelling and playing his guitar; Kevin was worried that the neighbors would call the cops. He’d told Davis that, but he wouldn’t stop, Durden recalled. Davis said he “didn’t understand what the word ‘neighbors’ meant.”
Durden was scared. Something was seriously wrong. She convinced Davis to come home so he could be seen at Duke Medical Center. It had taken him two-and-a-half days to make the cross-country trip to California, so Durden figured she’d see him soon. He never showed up. Four days later she filed a missing person’s report with the Stockton police, and they quickly located Davis in Los Angeles. A cop there stopped him and said he should call his mother. She again told her son to come home. More time went by, and on January 24, she again called the police to file a new report.
Finally, in early February, Durden got a call from a Stockton officer who told her, “‘I found your baby,’” she recalled. “And she’s like, ‘He’s alive. And he’s in jail.’”
On January 28, 2019, Davis had been pulled over for speeding just outside of Tyler, Texas, in the northeast part of the state. As the state trooper sat in his vehicle checking Davis’s license and registration, Davis hit the gas, touching off a high-speed chase that ended after Davis damaged his car; no one was hurt. Davis was arrested, prosecuted, and sent to prison.
Durden was stunned. Since then, she has struggled to understand a criminal justice system that she feels has aggressively ignored her son’s deepening mental health crisis, which is also what she believes prompted him to flee the cops in the first place. “Where’s the common sense where somebody goes, ‘There might be something wrong with this kid’?”
How those with mental illness are treated in the system has become a focus in the ongoing calls for criminal justice reform that have increased in volume since the killing of George Floyd by a Minneapolis police officer in May. At least 25 percent of fatal police encounters involve a person with mental illness, and individuals with untreated mental illness are 16 times more likely to be killed during an encounter with police, according to a report from the Treatment Advocacy Center.
“I’ve heard a thousand stories like this,” Alisa Roth, author of “Insane: America’s Criminal Treatment of Mental Illness,” said of Davis’s case. The criminal justice system — from police contact to prosecution and prison — has been thrust onto the front lines of handling mental health crises and is ill-equipped to do so, Roth said. “It all needs to be fixed.”
Anything but Unique
Highway Patrol Trooper Chaney Wade of the Texas Department of Public Safety was sitting in his car monitoring eastbound traffic on Interstate 20 in Smith County when he clocked Davis going 89 in a 75-mile-per-hour zone.
Reading the police report, it’s clear that from the start, Wade sensed that something was off about Davis. He was mumbling and wouldn’t make eye contact. When Wade asked him who he’d been staying with in California, Davis couldn’t remember his brother’s name. Wade took Davis’s license and registration back to his car to run it through the computer. Sitting inside with his window rolled up, Wade could hear loud music coming from Davis’s car. He watched Davis as he rocked his head back and forth. Then the brake light came on; Davis looked over his shoulder and just took off. Wade gave chase.
The whole pursuit, which eventually included several troopers along with officers from other agencies, lasted about 17 minutes, with Davis weaving in and out of traffic at speeds that topped 110 mph. He got off the highway and ran through a fence before re-entering the interstate going the opposite direction. Ultimately, damage from hitting the fence disabled Davis’s car, which came to a stop in the middle of the highway.
Trooper Kevin Lybrand approached the car, and he too noted that something was off. As he stood there with his gun drawn, Lybrand wrote in his report, Davis just sat in the car, shaking his head to the music. Eventually, Davis complied with Lybrand’s commands and lay face down on the asphalt. Davis was booked into the Smith County jail on a charge of evading “arrest or detention,” a third-degree felony. Lybrand asked Davis why he’d fled. “He stated that he was ‘just chillin’, trying to get back home,’” he wrote.
When Durden was finally able to talk to Davis on the phone, she asked him the same question. “Cameron just described it as this feeling,” she said. “Something told him, ‘You have to go, and you have to go fast,’ and Cameron said it was like he couldn’t control the car and he could not control his actions. He just knew he had to go.” Inside the jail, Davis’s behavior began to deteriorate, Durden said. He would walk around naked and steal people’s food, she recalled, but then didn’t remember doing any of it. It appears that someone in the jail recognized this behavior for what it was (though it isn’t clear from the available records how he was diagnosed) and Davis was prescribed Geodon, an antipsychotic treatment for schizophrenia.
Durden and her husband hired an attorney in Texas, Robert Perkins, and they hoped Davis would be released. Soon, they realized that was not in the cards: The state was seeking a six-year prison sentence for what would be Davis’s first criminal offense. Durden and her daughter, Mackenzie, each wrote letters that they asked Perkins to deliver to the judge and prosecutors, laying out what had happened with Davis and begging for leniency. “I realize that this letter is lengthy,” Durden wrote. “It is difficult to stop writing when you are fighting for your child’s life.” She implored them to allow Davis to come home to North Carolina for treatment. “Cameron is ill, and it is doubtful that he would even survive a prison sentence.”
Ultimately, Davis accepted a plea deal and was sentenced to four years in prison. Since he’s been inside, things have gotten worse. Although prisoners have a right to mental health care, Davis hasn’t gotten access, says Durden. And he’s lost good-time credit that could see him released early. Without access to medication, he hasn’t been able to follow the rules; if he can’t follow the rules, he loses time credit. Durden fears Davis will end up serving all four years. She worries about how much damage will have been done to his mental health in the interim and, at times, whether he’ll make it at all.
Letters from Davis that Durden shared with The Intercept paint a disturbing picture. Sometimes his handwriting is neat and ordered and his thoughts are cogent. He talks about books, poetry, and songwriting, and how much he misses having his guitar. At other times his handwriting is erratic, and his thoughts scattered. He writes about people stealing his thoughts and how everyone is constantly making fun of him. “I am fucking tired of people disappearing and teleporting and them making my shit disappear like magic tricks,” he wrote in one letter.
“Sadly, that story is anything but unique,” said Miriam Krinsky, a former federal prosecutor who is now the executive director of Fair and Just Prosecution. “I have seen that scenario play out far too many times. I saw it in my days as a prosecutor, I saw it when I was working on law enforcement reform.” The nation lacks a robust, and accessible, mental health care system, and people experiencing mental health crises are churned through the criminal justice system in alarming numbers. The federal Bureau of Justice Statistics has reported that more than half of those incarcerated in the nation’s jails and prisons have a mental illness. County jails have become the largest mental health provider in most states, including California, Illinois, New York, and Texas. “The fact that our jails are the largest mental health institutions in the nation is just shameful,” Krinsky said.
Roth, who talked to hundreds of people at jails and prisons across the country while researching her book about how the criminal justice system treats mental illness, agrees. It’s a problem that warrants “stepping back” to interrogate the origins of the dysfunction and how that has impacted countless individual cases. And the system should seek to understand what’s behind the actions of people like Davis before deciding to arrest, prosecute, or incarcerate them, she said. “It seems to me that in most cases, if not all cases, we should be able to step back and say, ‘What’s behind this?’”
Removing Police From the Equation
Among the most common ways in which the criminal justice system has tried to reform its treatment of people with mental illness is through the introduction of crisis intervention and de-escalation trainings for police.
The Crisis Intervention Team model was developed in Memphis in 1988 after police fatally shot 27-year-old Joseph Dewayne Robinson, who was in the middle of a mental health crisis, brandishing a knife and threatening suicide. As police repeatedly ordered him to drop the knife, he became agitated and moved toward them. He was shot eight times. The idea of the so-called Memphis Model is to provide specialty training to a group of officers who could respond to mental health calls, de-escalate any tension, and route a person to partners in the community’s mental and public health systems for evaluation and treatment, diverting them whenever possible from the criminal justice system.
Where police are concerned, it’s a model that embraces two core components. First, the tactical side, or how cops spot and interact with people in a mental health crisis. “This is the information that tells officers, don’t rush forward; don’t shout verbal commands. You need to go slow, you need to modulate your tone,” said Seth Stoughton, a former Tallahassee police officer-turned-law professor at the University of South Carolina, where he studies policing and its regulation. “Building rapport with someone who is in a mental health crisis is critical to effective communication.” The second component is at least as crucial: “Now that you have interacted hopefully as positively as possible with someone who’s in a mental health crisis, what do you do?” Stoughton said.
The model requires that police “be comfortable making the decision that they aren’t going to make an arrest for someone’s behavior,” he said. “Even if that behavior satisfies the elements of a crime, they are instead going to submit that person for psychiatric evaluation, for example.”
The Texas DPS has long provided crisis intervention training to its sworn personnel — including Wade and Lybrand, according to state training records (Wade has taken at least 48 hours of crisis intervention training over his 18-year career; Lybrand at least 16 hours over a four-year career). Included in Texas’s current training materials is dashcam video of a DPS trooper who has pulled over a man for speeding. The man doesn’t have identification, and though he says he’s headed to San Antonio, based on where he said he started and where he is pulled over, he’s way off course. The trooper gets him out of the car right away and talks with him on the side of the road; he soon learns the man is a military veteran dealing with post-traumatic stress disorder. He keeps the conversation calm and, after calling for backup, drives him to a hospital.
In many ways, the training offers a striking contrast to the way Davis’s stop was handled. And it highlights a flaw in the approach toward intervention that many police agencies have taken: Training everybody in these techniques doesn’t mean that every officer will apply them in their work in any uniform way. “The folks who are already interested in doing it the right way are going to take advantage of the knowledge and skills they get from CIT training to make sure they do it the right way,” Stoughton said. “The agency has to create the structure that tells officers, this is the right way to do it, and here’s why,” he added. “And if you don’t want to do it that way, then you are doing it wrong and there are consequences for that.”
While Stoughton hasn’t evaluated the details of Davis’s case, he said that sometimes what he hears police say is that “‘when there’s a crime we have the duty to arrest,’ and that’s bullshit. That’s not actually true,” he said. “They have tremendous discretion in whether or not to make an arrest to deal with a particular issue or whether or not to deal with that issue in an alternative way, even when they have the clear legal authority that would allow them to make an arrest.” Reframing the way law enforcement sees these interactions and their outcomes is what good training tries to do. When someone’s behavior is the result of a mental health issue, “you have to think real hard before you make an arrest for that because, really, that may not help the person,” he said. “It may not help society.”
A related issue is that many agencies focus on crisis intervention “training” and forget that CIT actually stands for crisis intervention “team.” In addition to well-trained police working in partnership with mental health experts and providers, “one of the team members has to be the local prosecutor,” he said. “It should be standard.”
Krinsky agrees. The idea is to provide a series of “exit ramps,” so that people whose behaviors are prompted by crisis are dealt with outside the criminal justice system. “The problem is, in the first instance, we don’t have adequate alternatives and we think of law enforcement as the auto response when people are in crisis,” she said. The first off-ramp, she says, is to get police out of the equation — to have trained civilians deal with as many mental health-related calls as possible, as with the Crisis Assistance Helping Out on the Streets program in Eugene, Oregon, known as CAHOOTS, which has been in operation for more than three decades. Amid the ongoing protests over police violence, the CAHOOTS model has gained considerable national attention, and a number of jurisdictions across the country are now talking with the organization about ways to adapt its strategy, including officials in Austin and Houston. Oregon Sen. Ron Wyden and Rep. Peter DeFazio have introduced the CAHOOTS Act, which would allow Medicaid to pay for these programs.
But if efforts to divert individuals at this earliest stage fail, we “need to ensure that DAs have the wisdom to understand when people need help and not punishment,” Krinsky said. “The DA’s job is not to be on autopilot where every case that comes before them has to be charged and, if charges are filed, every punishment has to be the max. That’s not what their job is about; it’s not about notches on a belt. It’s about what is the wise result, and how do you promote the well-being and safety of your community?”
There are many ways prosecutors can do this, she says. In Seattle, for example, the elected prosecuting attorney, Dan Satterberg, was a principle architect of his county’s Law Enforcement Assisted Diversion program, which proactively seeks to divert people toward services and away from the criminal justice system. As state’s attorney of Chittenden County, Vermont, T.J. Donovan, now the state attorney general, partnered with local social services to create a diversion program that significantly reduced conviction rates for nonviolent offenses prompted by drug addiction and mental illness. “Ideally, the prosecutor is a partner in reforming the process,” she said, “so it doesn’t get to their doorstep.”
For his part, Jacob Putman, the elected Smith County, Texas, district attorney, said he could see how Davis’s actions could have been motivated by a mental health crisis. “I can certainly see that’s one way to look at it,” he said. But he doesn’t see that as the only possible explanation. “I guess I’ve had lots of evading cases where it was never really known why they evaded, right? I mean, people pull over and then take off.”
Putman said his office would have needed more information to determine if Davis’s offense had actually been caused by a mental health crisis before considering a lesser punishment; if someone had brought them a psychological evaluation that explained how his mental health influenced his offense and offered a treatment plan, “that would certainly be something we consider.” Putman did not personally try the case but said there is no record in the file that the family’s letters were given to the state; he said those letters might have been useful in determining punishment.
Putman’s office doesn’t have any formal policy or diversion program that outlines how to address offenses that may be motivated by mental health issues and instead says individual prosecutors make those determinations on a case-by-case basis — so, for example, in offices that consider conviction rates a measure of success, it might be less likely that prosecutors would consider diversion a worthy goal.
In Davis’s case, Putman said he doesn’t think a four-year prison term was extreme. In fact, he said, after learning that a doctor who evaluated whether Davis was competent to aid in his defense found “what appeared to be signs of a mental illness,” prosecutors dropped their initial recommendation, which was six years in prison. “I don’t think it’s that harsh considering just how dangerous the offense was,” he said. “When it comes to mental health, obviously the majority of people with mental health issues are not violent and don’t typically put the public in danger.” Here, he said, regardless of the motivation, Davis’s offense put people at risk. “I guess that was why it was for prison time and not probation or something like that. It was just a very, very dangerous set of events.”
Still, Putman says he understands that the system as a whole has not served people with mental illness. “I want to be first on the list of DAs who think the jail should not be our mental health treatment center. That is a big travesty of our criminal justice system, that we don’t have a robust mental health system that should be dealing with these kinds of cases,” he said. “And I think everybody involved in the criminal justice system would be happy to see that. I’d much rather people be treated in a hospital or clinic setting than arrested.”
A Horrible Cycle
Perkins, Davis’s defense attorney, says he’s convinced his client’s behavior was caused by mental illness — there were the police reports, the finding of mental illness by the competency evaluator, and the letters he says he did show to the prosecutor — but he couldn’t convince the state that getting Davis treatment instead of locking him up was the just outcome. “What you do is you end up doing the best you could possibly do under the circumstances,” he said. “Unfortunately, Cameron Davis is not the first nor will he be the last person that’s in this particular situation.”
Prison is not a good setting for addressing mental health issues, which is why diversion is key “for supporting the mental health of people with mental disorders and substance use disorders,” Dr. Nathaniel Morris, a forensic psychiatry fellow at the University of California, San Francisco wrote in an email to The Intercept. “Jails and prison are generally not therapeutic places from a mental health standpoint, and we should strive to connect people with treatment or rehabilitation services, rather than jail or prison cells, whenever possible.”
The prison environment is highly stressful, with people limited to small and often overcrowded spaces. There are shortages of medical personnel, including psychiatrists, lack of access to a broad spectrum of drugs, and constraints on counseling, among other structural issues, he wrote. So even though incarcerated people have a right to mental health care, there are a range of impediments to access.
In Texas prisons, mental health care is “horrible,” says Gary Cohen, one of several legendary parole attorneys in the state. “I mean, in order to get mental health treatment, you literally need to be banging your head against a wall or talking in tongues because the system views these offenders as manipulative. That’s the presumption — ‘oh, they’re faking this crap.’” To get care, you have to be a “gentle pest in terms of dealing with the unit health care professional and then dealing with their higher ups,” he said — a tall order for the incarcerated population.
And that has a range of implications, including on the ability of a person to earn parole. In Texas, parole eligibility is calculated based on a formula that takes into account calendar time served — also known as flat time — and good-time credit, which is earned through good behavior and compliance with prison rules. The more compliant a person is, the more good time they accrue, which in turn shaves time off the calendar, making a person eligible for parole. When a person won’t — or can’t — follow the rules, they lose the ability to earn good-time credit and are more likely to serve their flat-time sentence.
For people dealing with mental illness, this can set up an impossible situation: They can’t comply with rules because they’re dealing with an illness that needs treatment, but they can’t get the medical treatment they need to comply with the rules. “A lot of these people can’t really conform to all the minutia of the agency rules and regulations, so they end up in this horrible cycle where, because of a mental disorder or mental condition, they’re unable to control their behavior, and they’re treated as basically just knuckleheads rather than people with a disease,” Cohen said. On paper they look defiant, even though their behavior is a direct result of their mental health issues, “but the system doesn’t recognize it as such.”
This is precisely the cycle that Davis has fallen into, Durden said. He’s gotten in trouble, been beaten up, sent to solitary, and has been unable to access mental health care (he hasn’t received any mental health medications since he was detained in the Smith County jail). He’s also been shuffled among prison units across Texas; he’s been moved three times since the summer of 2019. And another move is pending “for his safety,” Durden was told, the result of some sort of altercation with his cellmate.
For nearly two years now, Durden has struggled with grief and regret. What if she’d just flown out to California and brought Davis home? Or what if she’d gone to Texas to advocate for him in person? Would things have worked out differently? The letters he writes break her heart. Sometimes when they arrive, she hesitates to open them. “I would just lay it there and just stare at it for a couple of days. I had to work up to even be able to read it, because you don’t know what’s inside,” she said. “Is it good? Is it bad? Is it horrible? Sometimes a little bit of all of it.”
She constantly wonders why things have turned out this way. Why didn’t anyone in the system understand that Davis was ill and needed help? Maybe, she thinks, it’s just that no one cared. She says she talked to the warden at one of the units “no less than 15 times,” imploring him to get Davis some help. “After hearing me tell him the whole story, on more than one occasion, and me bawling my head off, he’s like, ‘Well, sounds like Cameron needs to make better choices.’ I’m like, seriously? That’s what you just got from all this?” She says it’s like they just don’t “want to learn, I don’t think they want to understand.”
In navigating the system, she’s realized just how big the problem is. “I didn’t know that this was a problem until it happened to my family,” she said. “Where was the common sense in this whole thing? Yes, we want law enforcement to have more training in mental health, that would be wonderful. But it didn’t take a rocket scientist to put two and two together at the time of Cameron’s incident. You know what I’m saying?”
Redtail hawk feeding a snake to one of her young ones nested at the Rocky Mountain Wildlife Refuge in Commerce City, Colo. (photo: Ed Andrieski/AP)
Trump Administration Moves Ahead on Gutting Bird Protections Ellen Knickmeyer and Matthew Brown, Yahoo! Finance Excerpt: "The Trump administration moved forward Friday on gutting a longstanding federal protection for the nation's birds, over objections from former federal officials and many scientists that billions more birds will likely perish as a result."
The U.S. Fish and Wildlife Service published its take on the proposed rollback in the Federal Register. It's a final step that means the change — greatly limiting federal authority to prosecute industries for practices that kill migratory birds — could be made official within 30 days.
The wildlife service acknowledged in its findings that the rollback would have a “negative” effect on the many bird species covered by the 1918 Migratory Bird Treaty Act, which range from hawks and eagles to seabirds, storks, songbirds and sparrows.
The move scales back federal prosecution authority for the deadly threats migratory birds face from industry — from electrocution on power lines, to wind turbines that knock them from the air and oil field waste pits where landing birds perish in toxic water.
Industry operations kill an estimated 450 million to 1.1 billion birds annually, out of roughly 7 billion birds in North America, according to the U.S. Fish and Wildlife Service and recent studies.
The Trump administration maintains that the Act should apply only to birds killed or harmed intentionally, and is putting that “clarifying” change into regulation. The change would “improve consistency and efficiency in enforcement,” the Fish and Wildlife Service said.
The administration has continued to push the migratory bird regulation even after a federal judge in New York in August rejected the administration’s legal rationale.
Two days after news organizations announced President Donald Trump’s defeat by Democrat Joe Biden, federal officials advanced the bird treaty changes to the White House, one of the final steps before adoption.
Trump was “in a frenzy to finalize his bird-killer policy,” David Yarnold, president of the National Audubon Society, said in a statement Friday. ”Reinstating this 100-year-old bedrock law must be a top conservation priority for the Biden-Harris Administration" and Congress.
Steve Holmer with the American Bird Conservancy said the change would accelerate bird population declines that have swept North America since the 1970s.
How the 1918 treaty gets enforced has sweeping ramifications for the construction of commercial buildings, electric transmission systems and other infrastructure, said Rachel Jones, vice president of the National Association of Manufacturers.
Jones said the changes under Trump would be needed to make sure the bird law wasn’t used in an “abusive way.” That’s a longstanding complaint from industry lawyers despite federal officials’ contention that they bring criminal charges only rarely.
It’s part of a flurry of last-minute changes under the outgoing administration benefiting industry. Others would expand Arctic drilling, favor development over habitat protections for imperiled species and potentially hamstring future regulation of environmental and public health threats, among other rollbacks.
t first, Michelle Durden thought her eldest son, Cameron Davis, was just going through some early 20s growing pains. He dropped out of college and quit his job. He began to lose weight and grow his hair long. He spent a lot of time in his room, teaching himself to play guitar. He withdrew from friends and family.
