Motion for New Trial for Bob McDonnell Denied

Former Virginia governor, wife will not get new trial.     December 1st, 2014, 4:30 pm.

RICHMOND, Va. — A federal judge has denied the request of former Virginia Gov. Bob McDonnell and his wife, Maureen, for a new trial. The two were convicted on public corruption charges in September.

Judge James R. Spencer rejected the McDonnells' request for a new trial and their arguments that the guilty verdicts should be overturned.

But Spencer did toss a jury's decision that Maureen McDonnell was guilty of obstructing justice. Spencer said prosecutors did not prove that she attempted to mislead a federal grand jury investigation.

Maureen McDonnell is now guilty of eight counts instead of nine. She is set to be sentenced next year.

In October, Bob McDonnell's lawyers filed a memorandum laying out four reasons for a new trial.

The former governor was convicted of 11 counts, including conspiracy and extortion, of performing official acts to promote a businessman's dietary supplement products in exchange for more than $165,000 in gifts, trips and loans.


Here's how Bob and Maureen got here.


After three days of deliberations, the seven men and five women who heard weeks of gripping testimony about the ­McDonnells’ alleged misdeeds unanimously found that the couple conspired to lend the prestige of the governor’s office to Jonnie R. Williams Sr. in a nefarious exchange for his largesse.

The verdict means that Robert McDonnell, the first governor in Virginia history to be charged with a crime, now holds an even more unwanted distinction — the first to be convicted of one.

He and his wife face decades in federal prison, although their actual sentences are likely to fall well short of that. U.S. District Judge James R. Spencer set a sentencing hearing for Jan. 6.

UPDATE    Wed., Dec.  10th

A federal judge will allow lawyers for former Gov. Bob McDonnell to file a 50-page sentencing memorandum, 20 pages more than the court normally permits.

U.S. District Judge James R. Spencer allowed the 20 extra pages without explanation in an order entered Wednesday.

McDonnell is due to be sentenced by Spencer on Jan. 6.   His lawyers filed a request to file the extra pages, citing what they anticipate will be the prosecution’s request for a substantial prison sentence.

Among other things, they want to write about McDonnell’s “entire life,” they said.

The U.S. attorney’s office opposed the request, arguing that more than 30 pages was unnecessary because of the large amount of biographical material on McDonnell that was presented during his six-week trial earlier this year.

They also said McDonnell deserved no more and no less consideration than other defendants.

McDonnell and his wife, Maureen, who is set to be sentenced Feb. 20, were convicted by a federal jury in September.

The former first couple were indicted in January for accepting more than $177,000 in gifts and loans from Jonnie R. Williams Sr., the one-time CEO of Star Scientific, in exchange for promoting a new dietary supplement product.

END OF UPDATE

A portion of the transcript of the new trial request is printed below.   The entire document is public and available on line.   ACVDN is printing 6 pages of the 25 to give you the flavor of the filing and the decision.

1 

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA RICHMOND DIVISION 

UNITED STATES OF AMERICA,  v. ROBERT F. MCDONNELL, and MAUREEN G. MCDONNELL, Defendants. 
 Action No. 3:14-CR-12

MEMORANDUM OPINION
 THIS MATTER is before the Court on Defendant Robert F. McDonnell’s Motion #40 (“Motion”) (ECF No. 511). The Government filed an Opposition Memorandum (“Opp’n Mem.”) (ECF 
No. 530) on October 14, 2014. McDonnell subsequently filed a reply on October 24, 2014 (“Reply Mem.”) (ECF No. 541). The parties have not requested a hearing on this matter, and the Court finds that oral argument is unnecessary. E.D. Va. Loc. Crim. R. 47(J). For the reasons set forth below, the Motion is hereby DENIED.

I.

BACKGROUND
Defendant Robert F. McDonnell (“McDonnell”) served as the 71st Governor of the Commonwealth of Virginia from January 2010 to January 2014.   His wife, Maureen G. McDonnell (“Mrs. McDonnell”), served as the First Lady of Virginia. 

During his campaign for Governor, McDonnell met Jonnie Williams (“Williams”).  Williams was the Chief Executive Officer of Star Scientific, Inc. (“Star Scientific”). 

Beginning in or about 2007, Star Scientific focused on utilizing certain alkaloids in the tobacco plant, namely anatabine, to address issues related to the desire to smoke.   The company engaged in the development, manufacture, and marketing of two anatabine-based dietary supplements:  CigRx
Case 3:14-cr-00012-JRS Document 567 Filed 12/01/14 Page 1 of 25 PageID# 16263


====================================
(Presented here are page 1 (Motion Denied) and pages 20 through 25)   On the bottom of page 25 the Judge reaches his decision, appeal denied.

====================================

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this regard, the more similar the prior act is (in terms of physical similarity or mental state) to the act being proved, the more relevant it becomes. 

(2) The act must be necessary in the sense that it is probative of an essential claim or an element of the offense.

2

 (3) The evidence must be reliable. And (4) the evidence's probative value must not be substantially outweighed by confusion or unfair prejudice in the sense that it tends to subordinate reason to emotion in the factfinding process.

3     132       F.3d at 997.

(1)

Goodwin Evidence

First, McDonnell contends that the Court erroneously admitted evidence that he received things of value from William Goodwin (“Goodwin”). Specifically, the Government introduced evidence that McDonnell’s draft 2012 Statement of Economic Interest (“SOEI”) listed a Kiawah Island trip from Goodwin with a value of $23,312.55.

 See

Tr. Vol. XXII 5295:9–5296:7. However, McDonnell subsequently crossed out the trip and wrote “personal,”   Id . at 5296:10–13, and thus McDonnell’s final SOEI contained no reference to the Kiawah Island trip,   id . at 5296:20–24. However, the SOEI still contained other gifts from Goodwin, including a Keswick Cabinet Retreat valued at $920.    Id . at 5296:17–19. McDonnell argues that the Government never established that this evidence was relevant to an issue other than character. In essence, he argues, all the evidence did was to suggest that he had a propensity to accept expensive gifts from donors. (Mem. in Supp. of Mot. at 27.) Under Virginia law, certain state officials, including the Governor, are required to annually file a standardized disclosure of their personal economic interests, commonly referred to as the SOEI. The SOEI requires a state official to disclose,

inter alia

, gifts or entertainment  valued in excess of fifty dollars received by the state official from any business or individual other than a relative orclose personal friend 

. The Government introduced the Goodwin

2

 The Court defines evidence as “necessary where, considered in the light of other evidence available to the government, it is an essential part of the crimes on trial, or where it furnishes part of the context of the crime.”

Queen, 132 F.3d at 998 (internal citations and quotation marks omitted).

3

 The court also points to “(1) a limiting jury instruction, when requested by a party, explaining the purpose for admitting evidence of prior acts, and (2) the requirement in a criminal case of advance notice,  when so requested, of the intent to introduce prior act evidence” as protections against potential “pit falls” under this Rule.

Queen, 132 F.3d at 997.

21 

evidence at trial in order to prove McDonnell’s prior improper manipulation of this “personal friend” exception because although McDonnell testified that Goodwin was supposedly his personal friend,

id 

. at 5051:21–22, the Government produced sufficient evidence for a reasonable jury to reject that testimony.

 See id 

. at 5051:23–5055:20. Contrary to McDonnell’s argument that this evidence did no more than suggest to the  jury that McDonnell had a propensity to accept expensive gifts from donors, the Goodwin evidence was clearly relevant to issues other than McDonnell’s general character. First, the evidence showed McDonnell’s knowledge of the SOEI and the existence of the “personal friend” exception.   Second, McDonnell testified that, like Goodwin, he viewed Williams as a personal friend in 2012,

see

Tr. Vol. XXI 5109:9–14, but despite this opinion of their relationship, he still chose to disclose gifts from Williams on his 2012 SOEI. Thus, this evidence indicated an absence of mistake or accident in omitting the gifts and loans from Williams and thus was relevant to McDonnell’s intent to defraud.   Applying the factors defined in

Queen

, evidence of McDonnell’s knowledge and of the absence of mistake is relevant to, and probative of, his alleged intent to defraud—an element of the charged crimes;  the prior act alleged is similar to the act the Government sought to prove—omission of gifts from Williams pursuant to the personal friend exception; and there is nothing in the record to suggest that the evidence was unreliable or unfairly prejudicial to McDonnell.

See

Queen

, 132 F.3d at 997. Therefore, the Goodwin evidence was properly admitted.

(2)

Zubowsky Email Secondly, McDonnell argues that the Court erroneously admitted evidence indicating that his staff organized free golf for him. This piece of evidence revolved around a January 2013 email exchange between Emily Rabbit (“Rabbit”), McDonnell’s scheduler at the time, and Adam Zubowsky (“Zubowsky”). Gov’t Ex. 627. Rabbit 

asked Zubowsky whether he had any background in planning a golf trip for the Governor and his sons. Tr. Vol. XXI 5137:23–5138:3. Zubowsky responded that Rabbit should find a golf course that will host McDonnell and his family for free

22

 Id . at 5138:14–16. Zubowsky then directed Rabbit to put all the information in a briefing book for McDonnell’s review.

 Id . at 5138:21–5139:1. McDonnell now objects to the introduction of this email, arguing that it is both inadmissible hearsay and Rule 404(b) evidence. As an initial matter, when the Government first attempted to introduce this email through its direct examination of Rabbit, McDonnell’s counsel objected on the basis that the evidence is not 

relevant and “extraordinarily prejudicial.”   Tr. Vol. XII 2869:1–2.    When the Government subsequently attempted to introduce the email during the cross-examination of McDonnell, his counsel again objected solely based on relevancy.

 Tr. Vol. XXI 5137:7–9.   Thus, during trial McDonnell’s counsel never objected based on hearsay or Rule 404(b).   Based on Federal Rule of Evidence 103, a party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and if the party both timely objected at trial and stated the specific grounds for the objection

. Fed. R. Evid. 103(a)(1). Because McDonnell’s counsel objected solely on the basis of relevance, this Court properly admitted the email at trial. Despite McDonnell’s apparent mistake, the Court may still consider McDonnell’s present objections if the introduction of this email constituted plain error, meaning it affected McDonnell’s substantial rights.   Fed. R. Crim. P. 52(b);  Fed. R. Evid. 103(e).    To proceed with the merits, McDonnell first argues that this email was inadmissible hearsay, and should have been excluded as such.   Hearsay is an out-of-court statement that is offered in court to prove the truth of the matter asserted, Fed. R. Evid. 801(c), and is inadmissible at trial unless an exception applies,  Fed. R. Evid. 802.   A statement that is offered against an opposing party and was made by either the party in his individual capacity or representative capacity, or made by the party’s agent or employee on a matter within the scope of that relationship and while it existed, is deemed 

non-hearsay.   Fed. R. Evid. 801(d)(2)(A), (D). First, the portion of the email from Rabbit is not hearsay.

See

 Fed. R. Evid. 801(d)(2)(D). Rabbit was McDonnell’s scheduler at the time and thus an employee.   The statement she made in the email was within the scope of her employment 

relationship, as McDonnell requested that

23 

they meet to discuss golf trips in Myrtle Beach or Florida.   The statement was then offered against McDonnell at trial.   Second, with respect to Zubowsky’s statements in the email, McDonnell’s counsel is correct that the email is hearsay that does not fall within any exception.   Zubowsky was no longer employed by McDonnell at the time he 

sent the email and he does not purport to relate any statement made by McDonnell.   However, the admission of this evidence was harmless error as it did not affect any substantial right of McDonnell and thus McDonnell’s argument must be disregarded.

 See

Fed. R. Crim. P. 52(a). “Where non-constitutional error is involved, the proper test of harmlessness is whether, on appellate review, this Court can say ‘with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by error.’”

United States v. Hartgrove, No. 90-5331, 919 F.2d 139, at *2 (4th Cir. Nov. 29, 1990) (quoting

United States v. Urbanik, 801 F.2d 692, 698 (4th Cir. 1986)).   Based on the considerable amount of evidence introduced over a five-week period during this trial, the Court can assuredly state that the jury’s verdict was not swayed by one portion of one e-mail.   McDonnell next contends that this evidence also violated Rule 404(b) as the Government’s only purpose in introducing it was to show McDonnell’s character in an unflattering light–that he had a propensity to seek out free expensive gifts.   On the other hand, the Government contends that this email “was not Rule 404(b) evidence;  [rather] it was offered to rebut Mr. McDonnell’s assertion that he didn’t seek gifts and he simply accepted gifts to spend time with his family.”   (Opp’n Mem. at 29.)   As support, the Government cites a section of “McCormick on Evidence,” which describes impeachment by “specific contradiction.” 1 McCormick on Evid. § 45 (7th ed. 2013). “Impeachment by contradiction is a means of policing the defendant’s obligation to speak the truth in response to proper questions.”

United States v. Gilmore

, 553 F.3d 266, 271 (3d Cir. 2009) (internal quotation marks and citations omitted). Specifically, “this doctrine

Case 3:14-cr-00012-JRS Document 567 Filed 12/01/14 Page 23 of 25 PageID# 16285

24 

provides that when a witness puts certain facts at issue in his testimony, the government may seek to rebut those facts, including by resorting to extrinsic evidence if necessary.”

United States v. Ramirez 

, 609 F.3d 495, 499 (2d Cir. 2010). In sum, this form of impeachment is intended to prevent the defendant from invoking “the Federal Rules of Evidence in order to shield his perjury from contradiction.”

 Id 

. Impeachment by contradiction is authorized by Federal Rule of Evidence 607 and its application is governed by Rule 403.

Gilmore

, 553 F.3d at 271;

see also United States v. Perez-Perez 

, 72 F.3d 224, 227 (1st Cir. 1995) (finding that impeachment by contradiction is not governed by Rule 608(b), but by common-law principles).   Most importantly, this form of impeachment is used to contradict a specific fact  the defendant testified to on direct 

.

 See Ramirez 

, 609 F.3d at 499;  Gilmore, 553 F.3d at 271;

United States v.  Scott , 693 F.3d 715, 722 (6th Cir. 2012).   The Government attempts to argue that the introduction of the Zubowsky email was intended to rebut McDonnell’s testimony on

direct  that the “most important gift” he received as governor was “having some time with his family.” Tr. Vol. XX 4853:22–25. However, it was not until

cross-examination when the Government specifically questioned McDonnell regarding his solicitation of free golf outings.   Thus, the Government cannot rest its argument of impeachment  by contradiction on the general “notion” implicit in McDonnell’s direct testimony. If the Government’s argument is rejected, then the Court must analyze the Zubowsky email pursuant to Rule 404(b). According to the factors defined in

Queen, this evidence was relevant to McDonnell’s motive for entering a corrupt agreement with Williams; the prior act alleged is similar to the act the Government sought to prove—acceptance of free gifts from  Williams;  and there is nothing in the record to suggest that the evidence was unreliable or unfairly prejudicial to McDonnell.

 See Queen, 132 F.3d at 997.   Therefore, the Zubowsky email  was also properly admitted. // //

Case 3:14-cr-00012-JRS Document 567 Filed 12/01/14 Page 24 of 25 PageID# 16286

25

IV. CONCLUSION

For the foregoing reasons, McDonnell’s Motion is DENIED.  Let the Clerk send a copy of this Memorandum Opinion to all counsel of record.   An appropriate Order will issue. 

ENTERED this 1st day of December 2014

December 6th, 2014 is the date for the sentencing.   ACVDN will cover the sentence in detail.

                           Bob's Rolex, time to go

Amherst County Virginia Democratic News

ACVDN
Amherst Democratic News

GOP Spokesman Attacks President's Teenage Daughters

ACVDN  UPDATE

Update on Elizabeth Lauten who has resigned her position as communications director for Rep. Steven Fincher, a Tennessee Republican. 

 Seems Lauten has an arrest record of her own, must have slipped her mind as she scolded the Obama daughters for their dress and mannerisms at the turkey pardoning ceremony.

Elizabeth Lauten was arrested in December 2000 for misdemeanor larceny, according to court records.    Lauten, then 17, was collared for stealing from a Belk department store in her North Carolina home town.

Because Lauten was a first-time offender, her case was handled via the District Court’s deferred prosecution program, which resulted in the charge’s eventual dismissal after the future scold stayed out of trouble for a prescribed period.

                          Attack children?   This woman must be crazy?

Since Lauten was just another teenager caught shoplifting at the mall, it appears unlikely that she was publicly pilloried for her lack of class, nor were her parents criticized as poor role models.    Seems there was no loud mouth, rude skank attacking teenagers and parents in North Carolina at the time of her arrest.

Lauten, who graduated from Eastern Carolina University with a degree in Classics, first worked in Washington with lobbying firm Fierce, Isakowitz & Blalock, before taking a job with former Illinois Republican Rep. Joe Walsh.    Was there ever a lower class congressman than Joe Walsh?

She warned the Obama daughters not to dress for a spot at the bar.

She then became press secretary to Rep. Fincher, the position she held until resigning monday morning.   A May 2013 Roll Call article describes how Lauten visited 40 Capitol Hill offices to share her  “social-media savvy”  during a recess week.

Citizens For Responsibilty and Ethics in Washington (CREW) named Rep. Steven Fincher, Republican, Tennessee (her boss) as one of 2011’s “Most Corrupt” members of congress.

After a weekend of outrage on social media, NBC announced that had told them by phone that she was in the process of resigning her position.

Elizabeth with a beer bottle stuffed in her pie hole, No Hands.

In the backlash that followed her statement, Tom Adelsbach, a graphic designer, tweeted an unflattering photo of a woman he claimed was Lauten, holding a beer bottle in her mouth with no hands.

It had almost 900 re-tweets as of Monday evening, with many responding positively to his caption saying that the picture showed Lauten “displaying the “class” that she said the Obama Daughters weren’t able to.”

The original story follows.

GOP Staffer Elizabeth Lauten Attacks Obama's Daughters As 'Classless' Americans

                                               The Old Word Smith  Elizabeth  Lauten

You have to be a very low minded individual to attack Obama's daughters for being teenage girls, but we're talking about a GOP staffer and that's what she did.   This high ranking republican demonstrates the mind set of the GOP and shows their poor judgement and lack of common sense.   Watch the right wing circle the wagons around this low life idiot and defend her.   Elizabeth Lauten should be looking for a job come monday morning.   

I'm old enough to remember the vile things the GOP said about Chelsea Clinton and Amy Carter.   The GOP are just a nasty bunch of hot heads.   What will the republican leader Rush Limbaugh have to contribute to this attack on children?   Republicans really are the ugly Americans you have heard about!   They are classless senseless assholes and happy to behave as such.

Is nothing off-limits for the GOP and their talking heads when it comes to criticizing Barack Obama and his family?    Rush Limbaugh regularly attacks Michelle Obama with as much vitriol as possible because she's worried about what types of foods American children are eating, but Rep. Stephen Fincher's staffer took it a step further and attacked Obama's teenage daughters for being teenagers.

For most people, Sasha and Malia Obama's spiritless appearance at this year's White House turkey pardon was a lesson about humility, showing how even the world's most powerful man is still just "ugh, Dad" to his teenage daughters.   But one Republican House staffer saw something else entirely:  two girls dis-honoring America with their slutty clothes and brazen teen-ery.

Predictably, Lauten's bizarre rant about how the president's 13 and 16-year-old children looked like bar slags was poorly received, drawing fire after a screenshot was shared on Twitter by The Root's Yesha Callahan.   As some noted, the comments seemed particularly ironic given the numerous alcohol-related charges racked up by Bush's daughters during the last Republican presidency.

                                  What a jackass, the classless Elizabeth Lauten is.

Was that a scolding on what constitutes class from the spokeswoman of an elected GOP official as she publicly blasting minors on her Facebook page?   Are you behaving with class when you over-analyze and insult teenage girls?

In exchange for a lesson to the Obama girls on class, might I offer Lauten a word about using common sense and professionalism?    Perhaps it would have ben wise for Lauten,—a woman with a few years experience in social and on line media and who should have expected scrutiny as the communications director for a U.S. congressman—to refrain from attacking the president’s children.  

 But that snippet wasn’t even the worst part of her rant.

“Your mother and father don’t respect their positions very much,”  Lauten continued.   “Or the nation for that matter, so I’m guessing you’re coming up a little short in the ‘good role model’ department.”

Yes, because teenagers who roll their eyes are an indication of bad parents and a lack of proper guidance.   This, of course, means everyone’s parents sucked.   Should teens in need of guidance look up to Lauten, a grown woman who, again, publicly attacks children on Facebook?   Is this a proper role model?   You tell me.

Lauten wasn’t done though.

“Stretch yourself,” she demanded of the Obama girls.   “Rise to the occasion.   Act like being in the White House matters to you.    Dress like you deserve respect, not a spot at a bar.   And certainly don’t make faces during televised, public events.”

I don’t know what’s worse here:  treating teenagers who act like teenagers as though they  committed treason or implying that girls don’t deserve respect because of the length of their skirts.   Way to uphold rape culture, Lauten.    And why is she even discussing 13- and 16-year-old girls being at a bar anyway?   They’re the Obama sisters, not the Bush twins.

Whenever a GOP operative acts in a horrible fashion they always tell you that they really pray hard and realize how poor their behavior was and then apologize.    Under normal circumstances and without hours of prayer they cannot even approach the simple value judgement of not attacking children.    This woman has no soul.

I reacted to an article and quickly judged the two young ladies in a way that I would never have wanted to be judged myself as a teenager.   After many hours of prayer, talking to my parents and re-reading my words on line,   I can see more clearly how hurtful my words were.   Please know that these judgmental feelings truly have no pace in my heart.   Furthermore, I'd like to apologize to all of those who I have hurt and offended with my words, and pledge to learn and grow (and I assure you I have) from this experience.

You're an adult woman who attacked two teenage girls for just being teenagers.  What's to learn? Elizabeth's apology should be to the Obama family and especially to the children.    Those are the people she attacked and insulted.    Your conduct and behavior is par for the course for republicans.

Here's the photo of the President pardoning the turkeys as is done each year by democratic and republican administrations.     The only difference this year is one loud mouthed ignorant woman spewing her hate on line.    Happy holidays Elizabeth.


Republicans Now Controll the House and Senate

The voters have spoken and Republicans are in charge of the House and Senate.   What does this mean for the next two years?   Tuesday to thursday work weeks for the House and Senate and lots of long breaks with nothing getting done.  If it's not something big business wants it won't get addressed.  Lets just say that for those of you who didn't find the time to vote you will be learning why voting is important to freedom.  No action on immigration, enviromental protections, worker safety, equell pay for women, affordable school loans and just about anything else the country needs.   A better than average chance of a government shutdown.   Welcome to GOP control.


 The Gutting of Dodd-Frank.  

When Republicans take control of the House and Senate, many of their members will call for the outright repeal of the Dodd-Frank financial reforms.   But according to a 
former congressional aide close to the issue, the more serious threat to the regulations will come in the guise of moderate tweaks—nefarious  “nothing to see here”  amendments that Republicans will use on complicated or delayed provisions.   The regulation of financial institutions that are not banks, for example, was difficult to explain to the public and rally support around, but it was absolutely critical in targeting the likes of AIG.   It now appears to be at risk.   The Volcker Rule, which outlaws some of the banks’ riskiest behaviors, could also be vulnerable.   It has an implementation deadline of July 21, 2015, and Republicans will do whatever they can before then 
to tweak or delay it.

Also worth watching is the retirement of current Senate Banking Committee Chairman Tim Johnson.   He was reluctant to bring any Dodd-Frank-related measures back to the floor, since he fears (quite reasonably) that doing so would give Wall Street an opportunity to defang the legislation.   But both of his potential replacements have different plans. Democratic Senator Sherrod Brown, a fiery opponent of the banking industry, would almost certainly introduce additional financial regulation (which is necessary, but would have trouble getting past the House), and Republican Senator Richard Shelby will likely push hard to weaken Dodd-Frank.    If what Shelby brings to the floor is sufficiently disguised, says the former congressional aide, the question is what the Republicans will end up  “getting by the White House.”

A Keystone Showdown—And Possible Shutdown

In terms of environmental policy—and perhaps only in terms of environmental policy—the Obama administration has had an impressive few years.   It regulated how much carbon power plants could spew, increased renewable energy, and improved fuel-efficiency standards, putting the nation on track to cut greenhouse-gas emissions 17 percent from 2005 levels by 2020.   At the same time, domestic oil production in the United States is higher than it has been since the Reagan administration; our output is approaching levels similar to Saudi Arabia. 

A Republican-controlled Congress next term wouldn’t be content even with producing that much oil and gas.   The GOP’s top priority is simple—force President Obama into finally approving, or vetoing, the construction of the Keystone XL pipeline, a project that’s vilified by environmentalists because of the crude oil from Canadian tar sands it would carry to Gulf Coast refineries.   After that, Republicans will try to chip away the authority of the Environmental Protection Agency (EPA) to regulate pollution granted by the Clean Air Act.     Their first target:  the EPA’s new power plants rule, which won’t be finalized until 2015.    Mitch McConnell believes he can stall the 
EPA with his Coal Country Protection Act, which requires an additional review of the rule’s impact on the economy before the agency can proceed.

Of course, Obama will be tempted to veto these attempts to wipe out his signature programs.   But he might not have an easy choice. McConnell has suggested that he’d use riders on must-pass appropriations legislation, risking future government shut-downs to get his way. And with James Inhofe—who believes that climate change is “the greatest hoax ever perpetrated”—likely poised to become the chair of the Senate Environment and Public Works Committee, McConnell would have some strong backup.

  The Continuance of NSA Snooping

The provisions that justify much of the National Security Agency’s (NSA) controversial collection of bulk telephone metadata will expire on June 1, 2015—unless the White House and Congress strike a deal to replace them.   But will they want to? Laura Murphy, a lawyer at the ACLU, believes that Obama is open to modifying the current laws.    “I 
think his closest advisers have told him that these programs have not thwarted any significant terrorist attacks,”  said Murphy,  “and the cost to rights is greater than the benefit to national security.”   But given the continued threat of ISIS and the recent domestic security breaches at the White House, it’s hard to predict where exactly the president will be on surveillance reform next spring.   It’s also hard to predict what Congress will have the stomach for.   Mike Rogers, the chairman of the House Permanent Select Committee on Intelligence, is set to retire.     Mark Udall, a key anti-metadata crusader, was not re-elected.   And if Republicans take over the Senate, Patrick Leahy, an NSA skeptic, will lose his position as chair of the Judiciary Committee.   He is likely to be replaced by ranking Republican Chuck Grassley, whose record on surveillance questions is more mixed.   (He voted to extend the provisions that allow for bulk metadata collection the last time they were scheduled to sunset, in 2011.)    Those are a lot of hits for the anti-surveillance side to take.   On the other hand, it’s not as if either party really wants to be seen supporting the NSA these days.   What will ultimately happen, then, largely depends on the political mood right around the time of the debate in the spring and early summer.


 Strategic Slashes to Obamacare

Republicans know that they can’t repeal the Affordable Care Act so long as Obama has the veto pen.   That’s why Senate Republicans are more likely to focus on Obamacare’s most politically vulnerable pieces.   Two quickly come to mind:  a tax on medical devices and the so-called  “risk corridors”  program, which insulates insurers from large losses and which Republicans say is a taxpayer bailout of the insurance industry.   And if they seek to overturn these provisions, they may attract some Democratic support from unlikely places.   Progressive stalwarts like Massachusetts’s Elizabeth Warren and Minnesota’s Al Franken and Amy Klobuchar have spoken out against the device tax—perhaps because their states are home to major device makers.   But taking a run at either one of these provisions would present complications, too.

The device tax will raise about $30 billion in revenue over the next decade.   Strip it out and there’s a new hole in the deficit.   Striking risk corridors from the law, meanwhile, would 
alienate the insurance industry  (which has been counting on the subsidies)  and potentially a lot of voters  (who would end up paying higher premiums).

If Republicans are willing to risk such consequences, they’ll have an opportunity to force the issue.   As Edwin Park, vice president for health policy at the Center on Budget and Policy Priorities points out, Congress must raise the debt ceiling again sometime in 2015.   That’s an opportunity for budget extortion.   But if Republicans decide they don’t want another stand off with the White House, they might train their sights on another vulnerable Obamacare provision—one they could probably kill in the regular course of legislative business.    Namely the  “employer mandate,”  the requirement that medium and large businesses provide insurance to full-time employees  (or pay a fine if they don’t).

 The requirement has no friends on the right, and it doesn’t even have that many on the left or among mainstream economists.    The one catch is that the employer mandate raises even more money than the device tax—anywhere from $46 to $149 billion over ten years.    If Republicans voted to nix the mandate without replacing the revenue it generates, Obama would have an easy excuse for vetoing it—and he almost certainly would.


 Confirmation Chaos

In the history of the United States, there have been 168 filibusters of presidential nominees.   Eighty-two of them—nearly half—have occurred during Obama’s presidency.   

And now he’s facing the possibility of a Republican Senate for the first time.   Which means that many of the more than 200 (and counting) nominees awaiting confirmation in the next Senate session could be put in a state of permanent limbo.   These aren’t just for piddling back-office jobs, either.   We currently don’t have a surgeon general, though 
we do have Ebola and Enterovirus.   (The nominee, Dr. Vivek Murthy, has been languishing since November 2013 due to his support for gun control.)

The country is still waiting for the Senate to confirm an ambassador to Argentina, a chief financial officer of Veterans Affairs, a Social Security Administration commissioner, and a National Transportation Safety Board chairman.

Then there’s the judicial system:  Obama has 53 district judgeships to fill and seven positions on the Court of Appeals.   Currently, the ideological balance is even:  533 of all sitting district court judges were nominated by a Democratic president, compared to 530 by a Republican.   Obama has the chance to tilt the balance strongly in the 
Democrats’ favor, but don’t count on that happening.   During his first term, Obama’s district court nominees endured longer confirmation times and lower confirmation rates than those under George W. Bush or Bill Clinton.    According to the Brookings Institution’s Russell Wheeler, 68 percent of Obama’s appointees to the district court had to 
wait more than 180 days, whereas under Clinton it was only 8 percent.    And that was with a Democratic Senate.    It’ll be hard for the president—who “has already been nominating middle-of-the road candidates,”  says Wheeler—to confirm anyone who so much as looks like a liberal.

Anyway we get the government we vote for and like it or not we got the next two years of hell to go through.


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Is The Sun Setting on America?

You may wonder how a small group of conservatives manage to gain control of the government.   To control the House the district boundaries are drawn so as to favor one party or the other.   Below is an explaination of Senate Bias.    The chart shows how 50% of the senate is controlled by 16.24% of the population.   Note that Virginia with approx 7.5 Million people and ranked number 12th most populated state has the same number of senators as the smallest state of Wyoming with 506,529 people.   

Wyoming's vote is 15 times more potent than Virginia's.    Compare Wyoming to California and you see a 71 to 1 ratio.

The 24 smallest states have less than 17% of the population and they can run the show.   Talk about the tail wagging the dog.   When you look behind the curtain it looks like a criminal enterprise and not like the greatest nation on the face of the earth.   The big monied interests have taken control of the system and the one person one vote principal has bit the dust.   Even with all of these advantages the GOP still restricts the right to vote in an effort to leave out more poor, new and old voters.   

The supreme court looks the other way.   What will it take to wake the people up?    Will it happen in time to save our system?


The Small State Senate Bias

One of the factors that is often overlooked in discussions of the rise of the conservative movment in the past few decades is how this was supported by the way the US constitution was set up to give undue influence to the smaller states.   As each state gets the same number of senators, those with smaller population are relatively more important on a per capita basis.

This may not have been too important when the plan was devised, most states at that time were not too large in either size or population and the distortions were not that evident.   In the 200+ years since then the country has expanded into unforeseen directions.   The results have produced unexpected results.

The most serious of these is the ability of a group of states with small, and most rural, populations to dominate the senate.   The table shown below illustrates the effect. 

It shows the states arranged by population, with the smallest first.   The most important columns for our purposes are the rightmost two.   Notice that when the cumulative senate seats reaches 50 the cumulative population has only reached 16% (Kentucky).    Notice this effect continues even further.   By the time we have reached 70 seats we are still only at 34% of the population.   The converse of this is that the eight or nine largest states contain about 50% of the population.   They are mostly heavily industrialized and contain large cities and, in many cases, fairly large minority populations.   Their interests are being under represented.

Within the twenty five states at this point only two (Maryland and Rhode Island) can be considered urban.   The rest are primarily rural.   So, in effect, rural states with about 1/5 of the population control the senate.   Also note the color coding in the first column (red for Republican, blue for Democrat and purple for split party affiliation) for the senators.      It is obvious from this that there is not a strong party effect.   However, there is an important effect, nevertheless.   These smaller, rural states represent the more conservative type of voters.   Their concerns are far from those of big city states and the heavily industrialized larger states.

The result is that the political viewpoint has drifted rightward over the past twenty five years.   One could argue that these states always had this power.  This is true, but early in the 20th century, these states were rural farm states.   Many of their citizens were directly involved in agriculture.   They tended to side with, or at least sympathize with, the Progressive movement.   So they also found themselves allied with industrial workers against the "trusts."   The result of this commonality of interests was the passage of much of the progressive social legislation of the time.

Since then the family farm has essentially disappeared.   Thus, those remaining in rural areas are no longer populists.   The farms that remain are primarily big, corporate enterprises, and support the same sorts of policies as do those in other large industries.   The result of this demographic shift is that the interests of the common man are overwhelmed by the power of corporatism in states representing a tiny fraction of the population.

The conclusion to be drawn from this is, that if progressives are to regain political power, they will need to find a way to overcome the institutional bias against their interests.   Even Democrats from many of the smaller states take pro-business positions;  that is where they get their funding for their political campaigns.   There is no way to alter this built-in electoral distortion, so any progressive movement will have to find a way to shift the dynamics of the senatorial elections towards more progressive candidates.   This means finding progressives who are willing to run for office and then finding enough financial support for them to be able to run an effective campaign in spite of the expected opposition from the moneyed interests.

With the popular vote in the country pretty evenly divided, the undue influence of the smaller states means that small changes in state elections can tip the senate to the Republicans.   The Republican party knows this and can put the effort into influencing small-state elections at a much lower cost than a campaign in a larger state.   The seats one wins are just as useful, however.

The progressives have their work cut out for them if they are going to change the political dynamics. Replacing Republicans won't be enough, they need to go after the "Republican-Lite" Democrats as well.

Senate Seats vs Population


                           Population    Population   Cumulative       Cumulative      Cumulative
State Name           2004      Rank         Population     Senators        Pop %


Wyoming                  506529        50           506529                  2          0.17%
Vermont                   621394        49           1127923                 4          0.38%
North Dakota           634366        48           1762289                 6          0.60%
Alaska                      655435        47           2417724                 8          0.82%
South Dakota           770883        46           3188607               10          1.09%

Delaware                  830364        45           4018971               12          1.37%
Montana                   926865        44           4945836               14          1.69%
Rhode Island           1080632        43           6026468               16          2.06%
Hawaii                    1262840        42           7289308               18          2.49%
New Hampshire 1299500        41           8588808               20          2.93%

Maine                     1317253        40           9906061               22          3.38%
Idaho                      1393262        39           11299323             24          3.86%
Nebraska                1747214        38           13046537             26          4.45%
West Virginia 1815354         37            14861891            28          5.07%
New Mexico           1903289        36           16765180             30          5.72%

Nevada                   2334771        35           19099951             32          6.52%
Utah                        2389039        34           21488990             34          7.33%
Kansas                    2735502        33           24224492             36          8.26%
Arkansas                 2752629        32           26977121             38          9.20%
Mississippi               2902966        31           29880087             40        10.19%

Iowa                        2954451       30           32834538              42        11.20%
Connecticut             3503604        29           36338142              44        12.40%
Oklahoma                3523553       28           39861695              46        13.60%
Oregon                    3594586       27           43456281              48        14.83%
Kentucky                 4145922       26           47602203              50        16.24%

==== 25 smallest states======50 Senators ====16.24% of population========


South Carolina           4198068   25             51800271               52         17.67%
Louisiana                   4515770   24             56316041               54         19.21%
Alabama                    4530182   23             60846223               56         20.76%
Colorado                   4601403   22             65447626               58         22.33%
Minnesota                  5100958   21             70548584               60         24.07%
Wisconsin                  5509026   20             76057610               62         25.95%
Maryland                   5558058   19              81615668              64         27.85%
Arizona                      5743834   18             87359502               66         29.81%
Missouri                     5754618   17             93114120               68         31.77%
Tennessee                  5900962   16             99015082               70         33.78%


Washington                6203788       15               105218870      72   35.90%
Indiana                       6237569       14               111456439      74   38.03%
Massachusetts            6416505       13               117872944      76   40.22%
Virginia                       7459827      12               125332771      78   42.76%
North Carolina           8541221       11               133873992      80   45.67%
New Jersey                8698879      10                142572871      82   48.64%
Georgia                      8829383        9                151402254      84   51.66%
Michigan                  10112620        8                161514874      86   55.11%
Ohio                         11459011       7                 172973885      88   59.01%
Pennsylvania             12406292       6                 185380177      90   63.25%
Illinois                       12713634       5                 198093811      92   67.59%
Florida                      17397161       4                 215490972      94   80.08%
New York                19227088       3                 234718060      96   80.08%
Texas                       22490022        2                 257208082      98   87.75%
California                  35893799       1                 293101881     100  100.00%


Total
293,101,881

The Following Essay is by Robert Feinman.    To see all his essays visit       http://robertdfeinman.com/society/index.html

Class Warfare - A Different View

There is a neo-populist movement afoot in the US right now.   No one is sure exactly what to call it.  Analogies with the original Populist party break down over issues of tariffs and xenophobia that were prominent in the original movement.   The later "Progressive" movement, which is credited with creating the first round of government regulatory agencies, doesn't fit well either.   It didn't have the broad-based working class foundation that is meant when one talks about populism.

These days when critics accuse liberals of engaging in "class warfare" they mean the the working classes are looking to rein in the excesses of the super wealthy.    Since this group is tiny, the appeal to defending the rights of Paris Hilton doesn't work well, so they try to include the top 20% as well.

I propose to separate the classes on a different basis than is usually the case.   In my scheme there are only two classes:  those who have to work for a living and those who don't.   Those who work may have different levels of income and wealth, but if they lose their wages they will, eventually, starve.

The blue collar, white collar and professional sectors have more in common than they realize. That the wealthy can disguise this fact is one of the greatest triumphs of social misdirection of the modern age.   In the middle of the 20th Century the local town doctor might live in a better home than his patients, but he was part of the community and adverse economic conditions affected him just as much.   The same was true for the local banker.

Now we have large sectors of society who make money by dealing in intangibles.   These may be financiers, or media people, or others engaged in marketing intellectual property.   A dealer in derivatives does not have the same connection to his neighbors as did the town banker.   He thus, mistakenly, thinks he has different interests.

What goals do the various strata of the working class have in common?

A clean environment

A safe local environment

Adequate health, education, and retirement services

A functioning democracy

A stable international political scene

The expectation that similar conditions will exist for their descendants

What does the non-working class want?

Adequate supplies of material goods of any sort

A stable and growing economic system

Permanent investment opportunities

Freedom to move capital internationally

Freedom to relocate when any locale becomes too risky

A political system designed to maintain their influence

Why do some in the working class fail to understand where their interests lie?   There have been many attempts at formulating an explanation.  All seem to have some partial insights.   In no particular order:  a belief that they will rise to the non-working class and thus they need to support those interests so that they will be in place when they "make it".   A feeling of elitism or superiority.  Distraction over "values" issues which blind them to the underlying real class concerns.   Jingoism or xenophobia which fosters an "us versus them" mindset - another form of elitism.   Insecurity or fear which leads to the aim of keeping those who might challenge their position from below being kept "in their place".   This latter attitude may not be totally irrational.   Many "populist" proposals these days aim at limiting the wealth accumulation of the upper segment of the working class.

The non-working class has every reason to oppose limits on their wealth accumulation since their continuing class membership depends upon the ability to make money from money and not labor.  Anything which constrains this will lead to a permanent limit on future wealth growth.   Unlike the working class there is nothing they can do to increase their income except have the rules altered.  By definition they don't "work" so they can't increase their labor.   (I realize that some of the non-working class "work", but they don't have to work to eat they do it for other reasons.)

Now why doesn't a stock trader earning $1 million a year see that his paying a higher fraction of his income is a "good thing"?   Doesn't he want a clean and safe environment for himself and his family? Who does he think is going to pay for this?   Why the tax resentment?   Why does this segment exist only in those countries with a high level of wealth disparity? 

As I stated above, I think the problem is one of a misunderstanding of where one's interests lie.   In a country with a high degree of wealth disparity (like the US and UK) this imbalance allows too much power to reside in the hands of too few.   This not only affects how elected representatives are selected, but also means that the information outlets are in the hands of the non-working classes.   The misinformation barrage is thus unchallenged. Politicians who represent the working class don't get elected and voices from this class don't get heard in the press or on the air.   With a continual program of class misidentification the working wealthy become blind to their real interests.

A member of the non-working class can leave his home country when things get too bad, but what happens to the financial analyst who thinks he is member of this same group? 

He is stuck in the muck just like his blue collar compatriots.   As the problems of resource shortages spread even the options for relocation will diminish.   Perhaps the 400 wealthy families in the US can relocate, but where will they go in 50 years when climate change affects the entire planet?

If you are making $1 million per year, be glad to pay 50 or 90% in taxes and realize that you are still ahead of 99.99% of the rest of the people on the planet.   You can't eat gold and you can't buy protection during a revolution, just ask the French aristocracy of 1789.   If you are among the most fortunate than you have an obligation to contribute more to society.   When did greed replace community as one of the virtues?

The question is how to get people to understand where their interests lie in the face of a generation-long misinformation campaign.   I don't have an answer, but perhaps the rise of alternate sources of information will provide the needed wedge.   This needs to be defended as well.   There are already steps being taken to limit the reach of dissident internet sites as well as to control access to the network itself.   Don't expect the legal system to support the working classes.   Judges and government workers suffer from the same misunderstanding about their class affiliation as do all the others.


Warner Re-Elected

A Million fewer voters participated this time than in 2008 when Gilmore got the same number of votes as Gillespie and went on to lose by a million votes.   A million voters stayed home and didn't have enough interest in the outcome to give Mark Warner their vote.   Mark still won but by slightly less than 17,000 votes.   When democrats get too apathetic to come out and vote we are in real trouble.   One thing you can say for the GOP, they keep their voters filled with hate and fear and motivated to go to the booth and vote every election.   How can we motivate democrats to give a dam about their own lives and who represents them in Washington?

Ed Gillespie will not seek a recount in his tight race for the U.S. Senate against incumbent Mark R. Warner (D), conceding defeat Friday in a campaign that positioned the Republican well for another run for state wide office in Virginia.

The race was surprisingly tight as Gillespie rode a wave of GOP enthusiasm that flipped control of the Senate and raised questions about the extent of Warner’s appeal in a changing Virginia.   Gillespie seized on voter discontent with business in Washington and effectively portrayed Warner as an insider.

Warner had claimed victory Tuesday night, but Gillespie held off on any concession until the ongoing canvass of votes across the commonwealth showed him to be further behind than on election night.    That's right folks he was slipping further behind as the canvass continued so Gillespie called off the recount.    Gillespie said he had a “nice conversation” with Warner on Friday morning.

“This obviously was a hard-fought race, and I’m proud of the campaign we have run and I loved every minute of it,” he said, winning applause from supporters gathered at a Springfield banquet hall. Pausing for a beat, he added to laughter: “Well, maybe not this one so much.”

Gillespie became emotional toward the end of his announcement, and his wife, Cathy, fought back tears when he thanked her and their three children.

Gillespie will return to lobbying to make money and wait for another political office to become available so he can run again.

In a statement, Warner commended Gillespie on a “hard-fought campaign” and said he would focus in his second term on trying to reduce the deficit and avoid further budget cuts due to sequestration.

“On Tuesday, Virginians sent an unmistakable message both to me and Congress as a whole:  End the gridlock and get to work,” he said. “I will spend every day working to get the Senate back in the business of solving problems and not simply scoring political points.    I will work with anyone, Republican or Democrat, to shake up this  dysfunctional Congress and move us toward common ground.”


An election attorney for Warner’s campaign said Thursday that at last count, Gillespie was trailing by 16,761 votes out of more than 2 million cast.

In accordance with the usual process, a statewide canvass of votes is scheduled to conclude Tuesday but will not be certified until Nov. 24, according to the Department of Elections.

Gillespie is a former head of the Republican National Committee and was a political adviser to former president George W. Bush. He began his campaign trailing by double digits in the polls to Warner, a former governor generally regarded as the most popular politician in Virginia.   But voters in southwest Virginia, who had supported him in 
his previous campaigns, abandoned him Tuesday.

Some have said Gillespie could turn his near miss into a campaign for governor in 2017 or assume another leadership role within the party.   Gillespie left his concession announcement without taking questions, but that did not stop supporters from speculating about his future.

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