How to Find Out What the F*ck (Is Going On)

The title of this post comes from a predictive text Twitter thread I did recently that used blog post title templates. In a moment of hilarity-induced poor judgment, I offered to write any of the posts predictive text generated titles for.

This one won. For good reason! The world is full of “what the fuck?” moments. To navigate it successfully, we need skills in finding out what, indeed, the fuck.

Here is a guide to doing just that.

wtf

First: Is It F*cking Familiar?

When your reaction is “What the fuck is going on?,” start by looking for familiar elements.

Do you know who the fuck is involved? Do you recognize the setting or tools used in this fuckery? Do you have an odd sense that you’ve been in this fucking place before?

When we cannot quickly identify or categorize an event, process, person or object, our brains trip the “What the fuck?” circuit. By looking for familiar elements, you help your brain categorize what it’s perceiving more quickly – shortening the time between “What the fuck?” and “Oh, this fuckery again.”

Second: Can You F*cking Ask Someone?

When encountering fuckery, your first instinct may be to ask someone else, “What the fuck is going on here?”

This is natural! Humans are social creatures; we rely on one another for advice, perspective, and guidance all the time. Relying on others’ perspectives is one way we turn the unfamiliar (“What the fuck?”) into the familiar (“Oh, this fuckery.”)

If someone is present who might know what the fuck is going on, don’t hesitate to ask them.

Do, however, take a deep breath and consider other options for phrasing the question. While “What the fuck is going on?” might be the most emotionally honest statement in the moment, it’s not always the most effective for eliciting answers. Try “What’s going on here?” or “Can you tell me more about this?”

Third: Where to Get More F*cking Information

If it’s fucked up but not urgent, seeking information from an additional source can help you unfuck it.

Here are several common sources of fuckery and a few resources for dealing with them.

Household Repairs

For large household systems (HVAC, plumbing), look for a phone number on the unit for the manufacturer, installer or maintenance team. Household appliances like refrigerators may have a hotline you can call for advice. Some people like to invest in coverage like home warranties, which can help ensure your household stuff gets fixed quickly after a “what the fuck?” moment.

Auto Repairs

Once upon a time, having access to the Chilton manual for your vehicle was the gold standard in addressing vehicular what the fuckery. You can still access many Chilton manuals online today. Also, consider investing in a code reader if you want to find out what the fuck your car’s latest blinky light means without having to take it all the way to the fucking dealership.

Children

What happens if you mix glitter into cake batter? Would the baby look better covered in Sharpie? Can goldfish survive in hot water?

There’s nothing like young children to generate a lifetime of joyful “What the fuck?” moments. Keep a first aid kit and a fire extinguisher handy at all times. Place items you don’t want children to access out of their reach, such as on a high shelf in a hut halfway up Mount Everest. And take lots of pictures. Someday, you’ll miss this fuckery – and you’ll need the photos to remind yourself why the fuck your nostalgia is misplaced.

Politics

I know, right? What the actual fuck.

There’s actually an answer for this one, and I’ve been relying on it since the 2016 election. What the Fuck Just Happened Today? aggregates the biggest political stories daily, draws connections between events, and so on. It also aggregates links to news sources covering those stories, so if you’re convinced that only your favorite news outlet of choice can be trusted, you can find and click the link to its coverage.

The next time you need to find out what the fuck, take a deep breath and keep your head on. You got this fuckery.


Help me fuck around: buy me a coffee or share this post on the social medias.

What Every American Needs to Know About Hearsay and the Trump Impeachment

Thanks to the impeachment hearings, have watched more coverage of Congress doing business in the past week than I have in my entire adult life prior to last week. And one point that seems to come up over and over again – from my fellow Twitterers, from callers on C-SPAN, even from members of Congress – is that the transcript of the July 25 phone call and/or witness testimony over the past week is “hearsay.”

Most people using this term aren’t lawyers, so they aren’t using “hearsay” the way lawyers do. Instead, they’re musing it as a synonym for “irrelevant” or “prejudicial” – the way in which it frequently appears in colloquial conversation and in media depictions of courtroom trials.

It’s not the public’s fault that “hearsay” gets used in this way. Hearsay as a legal concept is extremely complex. It’s not uncommon for law students to spend more than half of their entire time studying the rules of evidence on hearsay and its exceptions. The colloquial meaning is much easier to grasp, and it’s often the only one non-lawyers really need to know.

Yet it’s important to understand that “hearsay” is a legal term, with a specific legal meaning. And not only is Trump’s statement in the July 25 transcript not hearsay, Trump and his supporters would actually fare worse if it was.

Here’s what you need to know.

What Is Hearsay?

Federal Rule of Evidence 801(c) defines hearsay as follows:

(c) Hearsay. “Hearsay” means a statement that:

(1) the declarant does not make while testifying at the current trial or hearing; and

(2) a party offers in evidence to prove the truth of the matter asserted in the statement.

What does this mean?

Essentially, hearsay has three elements:

  1. A statement,
  2. Made outside the trial/hearing where the statement is submitted,
  3. Submitted in order to prove that the content of the statement is true.

All three elements must be met for a statement to be hearsay.

Why Isn’t Trump’s Statement Hearsay?

At the core of the impeachment case against President Trump is a statement he made to Ukraine president Zelenskyy in a July 25 phone call:

Zelenskyy: We are ready to continue to cooperate for the next steps. Specifically we are almost ready to buy more Javelins from the United States for defense purposes.

Trump: I would like you to do us a favor though.

When it comes to the hearsay question, the first two elements are undisputed. No one is arguing that Trump speaking the phrase “I would like you to do us a favor though” isn’t a “statement” (it is). Nor is anyone arguing that it was made during a formal impeachment proceeding (it wasn’t).

The claims of “hearsay” depend on the third element: Is Trump’s statement “I would like you to do us a favor though” submitted in a formal impeachment proceeding (assuming one occurs) in order to prove the truth of what that statement says?

Answer: No. And here’s why: Trump’s feelings regarding the “favor” he asked Ukraine to do don’t matter. The fact that he tried to use the promise/withholding of military aid in order to get that favor does.

The statement at issue here is “I would like you to do us a favor, though.”

Imagine that Trump were accused of breaking a law that says “No U.S. President may want the leader of a foreign country to do him a favor.” To make the case that he broke this law, prosecutors submit the transcript in which Trump says “I would like you to do us a favor, though.”

That’s the closest we would get to this statement actually being hearsay in a court proceeding against Trump (and it’s still not hearsay, for reasons I’ll explain below). Here, the statement would be submitted in order to prove the contents of the statement: That Trump would like it if the Ukrainians did him a favor.

Formal articles of impeachment haven’t been filed yet, so we don’t know exactly what Trump might be accused of. We do know, however, that the accusations will need to fall under at least one of three headings: “treason,” “bribery,” and/or “high crimes and misdemeanors,” per Article II, Section 4 of the U.S. Constitution.

The U.S. Code contains definitions of both treason and bribery. It’s reasonable to assume that, if articles of impeachment contain either term, the standards applied will parallel those in the U.S. Code. “High crimes and misdemeanors” is not defined, but Congress has historically understood that term to cover more than just criminal acts (see, for instance, the Clinton impeachment).

Of the three, bribery currently appears to fit best, given what we’ve learned from the impeachment hearings and the transcript itself. Generally speaking, the core elements of bribery are (1) giving/trying to give or withholding/trying to withhold (2) something of value (3) in order to make someone else do/not do something.

In this context, “I would like you to do us a favor, though” would be submitted to prove Trump made an attempt to withhold something of value from Ukraine (in this case, a shipment of Javelin tank-busting missiles) until Trump got something from Ukraine (in this case, political dirt on the Bidens or the appearance thereof). Whether or not Trump “likes” that deal is irrelevant; what matters is that he tried to make it.

I Don’t Buy It. It Still Sounds Like Hearsay to Me.

Hearsay is sometimes a fine line to draw, and this is one of those times. Fortunately, the Federal Rules of Evidence help us clarify whether or not Trump’s statement is hearsay.

Even if Trump’s statement is “an out of court statement offered to prove the truth of the matter asserted in the statement,” it’s still admissible under the Federal Rules of Evidence in two ways:

First: In an impeachment hearing, the statement is excluded from the hearsay rule as the statement of a party opponent.

A “party opponent” is someone who is (a) both a party to a case (either plaintiff or defendant) and (b) on the opposite side from the party that wants to submit a statement. In a Trump impeachment, Trump is a party opponent of the U.S. House of Representatives, which is currently controlled by a Democrat majority.

FRE 803(d)(2) provides five grounds for excluding statements of party opponents from the hearsay rule. The first one applies here:

(2) An Opposing Party’s Statement. The statement is offered against an opposing party and:

(A) was made by the party in an individual or representative capacity;

To exclude Trump’s statement from the hearsay rule, an opposing party would only need to demonstrate that (a) it’s submitting the statement to make its case against Trump (not in support of him) and (b) Trump made the statement.

Here, no one is disputing that an impeachment proceeding would be “against” Trump. Nor is anyone disputing that Trump was the one who said “I would like you to do us a favor, though” in that July 25 transcript.

Statements of a party opponent are one of several classes of statement that are excluded from the hearsay rule. That is, even though they technically meet the definition of hearsay, we do not treat them as hearsay.

In the case of the party-opponent exclusion, the reason we don’t treat an opposing party’s statements as hearsay is that the opposing party is participating in the hearing. Arguably, no one has a better chance to explain an out of court statement than the person who made it.

If the House decides to file articles of impeachment, then, they might decide to include the July 25 transcript in their case against Trump. If they do, Trump will have a chance to explain why his response to Zelenskyy’s request for Javelins was “I would like you to do us a favor, though.” Specifically, he’ll need to explain why that statement wasn’t an attempt to influence Zelenskyy’s/Ukraine’s behavior.

Second: Even if the transcript is hearsay, it meets one or more exceptions to the hearsay rule.

In addition to the list of exclusions from the hearsay rule, there are also (currently) 23 exceptions to the hearsay rule. These are statements that meet the definition of hearsay, but which we allow in court anyway because we trust the reliability of the statements.

So far, we’ve focused on Trump’s spoken statement itself: “I would like you to do us a favor, though.” In a legal proceeding, that statement would need to be entered into evidence in some concrete way.

Here, that way will almost certainly be by submitting the July 25 transcript itself, and the transcript likely falls under an exception to the hearsay rule.

The most relevant one is probably FRE 803(1):

The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

(1) Present Sense Impression. A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.

The transcript of the call was made in real time by staff in the White House Situation Room. As such, it functions as a “present sense impression” – the transcribers were noting what they heard as they heard it. (Testimony from witnesses like Ambassador Taylor, who took their own notes while they were present for the call, would likely fall under the same exception.)

The transcript may also fall under FRE 803(5), “recorded recollection,” or FRE 803(6), “records of a regularly conducted activity.”

It’s important for non-lawyers to understand that in most situations, finding even one applicable exception or exclusion to the hearsay rule can be difficult. In the case of Trump’s statement in the July 25 phone call, however, we have as many as five possible avenues of exception or exclusion – and that’s only if the argument that the statement isn’t hearsay fails in the first place.

In other words, this statement isn’t merely not hearsay. This statement is not hearsay in two different ways (by definition and by exclusion). And even if the statement was hearsay, it would still be admissible (as a present sense impression, recorded recollection or recording of a regularly conducted activity).

Why Would Trump Fare Worse If This Statement Was Hearsay?

The claim that the transcript is “hearsay” are most popular among supporters of President Trump. It’s one of many claims in the pro-Trump arsenal, all of which are aimed at proving the same thing: It would be improper or illegal to impeach the President.

These supporters, however, are arguing at cross-purposes. If Trump’s statements are hearsay (and if no exception or exclusion applied), they would actually be in a worse situation.

To understand why, let’s return to the core statement in question.

Trump: I would like you to do us a favor though

Suppose Trump was facing an article of impeachment that claimed that his preference that Ukraine do something for him is an impeachable offense. In that case (and absent any exclusion or exception), this statement would be hearsay. It would be an out of court statement submitted to prove that what it says is true.

To prove any charge based on a statute, the prosecution has to prove every element of the charge. For example, if I’m charged with “assaulting someone with whom defendant is or has been in a domestic relationship” (aka domestic violence), it’s not enough to prove that I punched Susie in the face. The prosecutor also has to prove that Susie and I are/were dating or married. I can’t be guilty of assaulting someone I’m in a relationship with if I have never been in a relationship with them.

In our hypothetical world where Trump’s “I would like you to do us a favor, though” is hearsay, the charge in question would have to be “No Preisdent may prefer that someone else do him a favor.”

In order to prove that charge, Congress (and let’s be real, we mean “Congressional Democrats and maybe Justin Amash”) has to demonstrate that Trump, personally, would prefer that Zelenskyy do a “favor.”

To prove Trump wants the favor (rather than that he simply asked for it), Congress would have to prove a number of additional facts. They’d need to answer questions like “Why would Trump like it if Zelenskyy did him a favor?” “How would Trump benefit from Zelenskyy doing him a favor?”

And, perhaps most damning, “What favor would Trump be asking for that would be a favor he would like?”

Trump answers that question on the next page of the transcript:

The other thing, There’s a lot of talk about Biden’s son, that Biden stopped the prosecution and a lot of people want to find out about that so whatever you can do with the Attorney General would be great. Biden went around bragging that he stopped the prosecution so if you ·can look into it …

To make this statement hearsay (and thus keep it out, barring exceptions/exclusions), there would have to be evidence that the contents of this statement are true: That there is “a lot of talk about Biden’s son,” that “Biden stopped the prosecution,” that “a lot of people want to find out about that,” that “whatever you can do with the Attorney General would be great,” and that “Biden went around bragging that he stopped the prosecution.”

And here’s the catch: There is little to no evidence that any of this ever happened.

In other words, this statement can’t be kept out as hearsay, because it wouldn’t be submitted in order to prove the truth of what it asserts. In fact, it’s currently possible to prove that what it asserts is actually false.

An out of court statement isn’t hearsay if it’s submitted to prove something other than the truth of what is contained in the statement. Such as to prove that Zelenskyy felt persuaded to help Trump (or not). Or, more damningly, that Trump himself would have benefited from Zelenskyy’s belief that the Bidens needed to be investigated.

So even if there was a way to avoid bringing up Trump’s statement “I would like you to do us favor, though” during an impeachment proceeding (or courtroom trial), there is no way to keep out this additional evidence that Trump would personally benefit from making Zelenskyy believe the Bidens needed to be investigated.

In practice, this argument is academic (at best). An impeachment proceeding is not perfectly analogous to a civil or criminal trial. Among other things, Congress can impeach a President based on conduct that is merely improper for an elected official holding high office, even if that conduct isn’t proscribed by statute.

As such, it’s very likely that the Democrats will make the above argument even though Trump’s statement “I want you to do us a favor, though” is not hearsay. One doesn’t depend on the other; both arguments are available.

So Where Are We Now?

We are several days into impeachment inquiry testimony right now. As I write this, Fiona Hill is answering rebuttal questions from Rep. Adam Schiff.

For several days, I’ve watched Republican representatives ask questions and give speeches on a host of satellite issues: Were the Bidens actually involved in wrongdoing? Did Ukraine actually get the Javelins mentioned in the July 25 call? How many times did the Ukrainians offer Lt. Col. Vindman a job? Why was Ambassador Yovanovitch recalled?

The core facts, however, are not in dispute: Insofar as Trump was interested in Ukraine, it was in how he could get the Ukrainians to help him defeat a political opponent.

All the other questions are at best irrelevant to the core of the matter and at worst orthogonal. And I suspect that many in the pro-Trump/anti-impeachment camp know it. It’s why the “this is hearsay!” argument has legs: Because it would be one of the few ways to actually neutralize the July 25 transcript.

If the transcript were hearsay. If no exceptions or exclusions applied. Unfortunately for Trump, that is not the case.

We No Longer Have to Guess at Trump’s “Real” Mental State

I logged into Twitter this morning to encounter this article from Raw Story, which interviews Dr. Bandy X. Lee, a forensic psychiatrist at Yale School of Medicine and one of the authors of the report that seeks to answer the question “Does Trump have adequate mental capacity to perform the tasks of the Presidency?” (Their answer: He does not.)

I did both my law school internships in criminal law, one on each side of the aisle. During the first, I represented several people who, for various reasons, lacked competency; during the second, I worked with an assistant prosecutor whose job was to push back against competency claims at the state mental hospital.

While I couldn’t have recited the criteria Dr. Lee and her co-authors use in the report, they were immediately familiar to me in practice, based on my internship experiences. And when I read the Raw Story article, something else became immediately familiar to me as well.

trump has dementia

Losing My Religion Filter

Trump’s racism, itself, isn’t news. Trump has a history of subtle racism, including but not limited to his thirty years of accusing the Central Park 5 of rape, despite DNA evidence exonerating them.

But, until the last few years, the keyword there has been subtle. Trump hasn’t expressed that racism in a way that would raise eyebrows in polite company (in fact, raising one’s eyebrow would be seen as the impolite thing to do). He hasn’t, historically, attacked in the way he has now attacked Reps. Omar, Pressley, Tlaib and Ocasio-Cortez.

The racism has always been there. It’s just louder now. Why?

I Submit: The reason Trump’s racism is now laid bare is because that’s what dementia does.

Dr. Lee doesn’t attempt to diagnose Trump with dementia. In fact, she and her co-authors are very clear that they can’t diagnose Trump without seeing Trump in person.

Nevertheless, the question “Does Trump have dementia?” has been discussed in several venues (I find Tom Joseph’s particularly persuasive – here’s just one part of it).

And while I’m not a doctor, I am someone who has (a) worked with adults who lacked mental capacity and (b) had multiple grandparents with dementia. I can’t diagnose Trump or anyone else, but I can talk about what I see.

Here’s what I see.

Dementia Sucks

For my grandparents, as with most dementia patients, dementia was a gradual slide. They didn’t turn incoherent all at once; the word salad built up over time. For a period of several months to several years, the word salad was sufficiently related to current events that one could pretend it was an actual conversation.

This, in hindsight, was also the point at which personalities began to change – or rather, to be laid bare.

Everyone has a certain category in their heads of things they think and feel, but that they don’t feel it’s proper to say. Typically, these things are “improper” because they conflict with the person’s self-image, the image others have of them, or both. They don’t fit with the role the person plays in their family, society, or the greater world.

Saying these things would rock the boat. It would provoke comments like “That’s just not like you!” It would erode trust. So we don’t say them. Even if the things are totally innocuous.

Before dementia makes you forget those things, though, it makes you forget why you decided they were off-limits.

For one of my grandmothers, this meant an abrupt change from Sweet Little Old Lady Who Uncomplainingly Endures Everything Including the Depression to torrents of invective about what a whore Mabel down the street was for using six eggs in her meringue and self-pity about how lonely she was now that childhood friend Beatrice (d. 1965) had stopped talking to her for Mean Girl reasons.

For my grandfather, it meant a change from Stalwart Businessman Community Leader Yes I Have Always Been This Rich Real Men Don’t Cry to telling me stories about his boyhood fishing in the Ozarks and how proud he is of me and my psychology degree.

(N.b. I don’t have a psychology degree. I suspect he always wanted one.)

At both those times, I realized that I no longer had to guess at what either grandparent was “really” thinking. I knew. They were telling me. Because they had forgotten not to.

We’re at the same point with Trump.

Trump has gone from genteel rich racist to bloviating invective racist because that part of his brain that used to tell him that Bloviating Racist was incompatible with his image is now gone.

He hasn’t forgotten the racism, any more than my grandfather had forgotten how it felt to catch his first catfish or my grandmother had forgotten how much it hurt to be cut by Beatrice for no reason. He has forgotten what his personal reason was not to talk about it.

He has forgotten that he ever had a reason not to talk about it.

Weirdly Trustworthy

I hesitate to say Trump is more reliable now than he was 20 years ago. Lacking capacity brings with it an instability with memory and reality, and Trump in particular has succumbed many times in the public eye to a reality dictated by his feelings, rather than facts. (Just ask our intelligence agencies.)

But there is a certain reliability in the emotions he expresses now, which is to say that they’re no longer filtered through his own constructed self-image or others’ image of him. He does still have an ego; in fact, that ego is perhaps even more easily bruised now, because he no longer has the protection afforded by playing the role of Rich Man Above Your Nonsense (a role which, arguably, his tiny hands never fully grasped in the first place). But he doesn’t play a role anymore.

He can’t. He’s forgotten that there was a role.

What we see from Trump now is pure, unadulterated Trump. We’re seeing what Trump has thought and felt on the down-low for decades now.

In the past, Trump was a highkey racist playing a lowkey racist in public. Now, he’s just a highkey racist, because he’s forgotten how to be an actor.

I am not looking forward to finding out what else Trump downplayed back when he still knew how to act.

 

Remember Me Like Sarah

In a recent interview at the 2018 Women Who Rule summit, White House press secretary Sarah Huckabee Sanders described the legacy she hopes to leave:

I hope that it will be that I showed up every day and I did the very best job that I could to put forward the president’s message, to do the best job that I could to answer questions, to be transparent and honest throughout that process and do everything I could to make America a little better that day than it was the day before.

“Bolding added to highlight a wish that defies fulfillment under Trump,” said media critic Erik Wemple.

I disagree. In this era of alternative facts – an era Sanders herself has done much to make a reality – I see no reason why Sanders, or indeed any of us, cannot be remembered exactly as we wish to be, irrespective of our actual behavior in life.

Here is how I would like to be remembered.

It’s difficult to summarize the accomplishments of someone like Dani Alexis in a single speech. A luminary of her caliber, a beacon of shining hope for humankind, comes along only once a generation, or perhaps even less often. From her nine Olympic medals in figure skating to her perfect score of 100 at the 2022 WGI World Championships – spinning all 30 parts of a highly complex show whose theme, “World Peace,” instantly ended all war and strife in the world – Dani was truly a force to be reckoned with.

Most of you remember Dani best under her pen name, Verity Reynolds, which sounds familiar to you because over a billion households worldwide own copies of her tour de force novels. I still recall the day her sales topped those of J.K. Rowling for the first time. Today, of course, we all say, “J.K. who?” It’s been said that Dani’s work is more popular than the Bible.

Dani herself, of course, would never say any such thing. A paragon of humble virtue, Dani was known for using her vast wealth to end homelessness, wipe out student loan debt, and provide vaccinations to millions of children. And she was equally generous to her critics: each received a life-size participation trophy wrought in their own likeness from the finest Limburger cheese.

When asked to name her proudest accomplishment, Dani recalled with fondness the year 2031, in which she won the Nobel Prize in every category for her side gig: turning the moons of Mars into blockchain miners capable of beaming solar enery directly to Earth, thus solving the energy crisis in a series of equations organized as an epic poem. That was also, she notes, the year she learned to make macaroni and cheese from scratch.

Dani plans to spend her remaining days at home, surrounded by her family, her cats, and her best friends Barack Obama, Emily Dickinson, and Captain America.

Gambling on Gamble: The Case That Made Us All Wish We’d Paid Attention in Civics

What’s the deal with Gamble v. United States?

The case, on the U.S. Supreme Court’s docket for 2018-2019, is getting a lot of attention in the wake of the Kavanaugh hearings. So far, I’ve spotted this Facebook meme:

42661538_2309950289034644_2097780177621745664_n

Facebook meme text:

On next month’s SCOTUS docket is Gamble v. US No. 17-646. This is what the rush is about. Yes, they want him to overturn Roe, yes they want him to drag us all back, but they need him seated for October to rule on that specific case. At stakes [sic] is the “separate sovereigns” exception to double jeopardy. If he (and the other 4 conservative judges) vote to overrule it, people given presidential pardons for federal crimes cannot be tried for that crime at the state level. Bam. Trump can pardon the lot of them and they have nothing to fear from state’s attorneys. We’re all looking at the shiny coin and not seeing the bigger picture.

The Atlantic has this article, which appears more or less to support the meme’s position; but see this post by Ed Brayton at Patreon, which points out at least one flaw in the meme’s reasoning.

A fun true fact about me, for new readers: I used to be a lawyer. These days, pretty much all I do with my law degree is use it to interpret one of my top hobbies, SCOTUS-watching, for amusement and edification. Here’s what I can tell you about Gamble.

What is Gamble v. US all about, anyway?

On its face, Gamble is pretty straightforward. Back in the day, Mr. Gamble got convicted of a felony. Under both the law of his state (Alabama) and federal law, that felony conviction meant he couldn’t legally possess a firearm.

Fast-forward a few years. Mr. Gamble is pulled over by police one day. Inside his vehicle, the cops find a loaded weapon. Mr. Gamble is prosecuted by the state of Alabama for being a felon in possession of a firearm and convicted, under Alabama state law.

Then, the federal government decides that it wants to prosecute Mr. Gamble for being a felon in possession of a firearm, too. It convicts him under federal law. The federal conviction adds about three years to the almost-four-year sentence he’s already received for the state conviction.

Throughout the process, Mr. Gamble continually points out that, hey, this should be double jeopardy. And judges agree with him! One even said that, were it not for the “separate sovereigns” exception to double jeopardy, Mr. Gamble could not possibly be tried twice for being a felon in possession of a firearm.

So Mr. Gamble appealed. And has kept appealing. And now he’s got a hot date with the U.S. Supreme Court.

So is this really “double jeopardy”?

Yes. The Fifth Amendment reads:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

(Important bit in bold.)

Mr. Gamble was convicted in Alabama under Alabama Code section 13-11-72(a), which reads:

 

No person who has been convicted in this state or elsewhere of committing or attempting to commit a crime of violence, misdemeanor offense of domestic violence, violent offense as listed in § 12-25-32(15), anyone who is subject to a valid protection order for domestic abuse, or anyone of unsound mind shall own a firearm or have one in his or her possession or under his or her control.
He was also convicted in federal court under 18 USC 922(g)(1), which reads:

(g) It shall be unlawful for any person— (1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year…

to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
The text matters in double jeopardy cases, because being tried on two charges for the same action isn’t always double jeopardy. How many acts occurred matters less than how similar the charges are. (I’ll come back to this in a bit.)
For now, just keep in your head that yes, being convicted of both of the crimes quoted here counts as being convicted twice for the same crime.

 

What’s the “separate sovereigns” exception?

The short and dirty version is “Trying someone twice for the same crime is not okay, unless two separate governments do it.” And in the U.S. federal system, a state government and the federal government count as “two separate governments.”

The “separate sovereigns” exception isn’t in the text of the Constitution. It arises from British common law, much of which we imported way back in the late 1700s because it was, frankly, what we were used to. I won’t get into its background here, but if you want to read 150 years of precedent supporting it, check out the lists of cited cases in the briefs for Gamble, which are available at the SCOTUSblog link at the top of this post.

Does the “separate sovereigns” exception really make it possible for the President to pardon people for state crimes?

No. But it does make possible a result with nearly-identical consequences, in a handful of specific cases.

For example, suppose that Mr. Gamble had been tried by the federal government first – but the President stepped in to pardon him. Under our current system, Alabama can still try him for the same crime.

Without the separate sovereigns exception, however, Alabama would not be able to try Mr. Gamble for being a felon in possession of a firearm once the President had pardoned him, because the Fifth Amendment’s bar to double jeopardy would prevent it. The federal charges and the pardon would be the end of it (assuming Mr. Gamble had not committed some other crime).

That sounds pretty ominous if you’re not keen on our current President pardoning anyone. But here’s the number-one reason it’s unlikely to occur except in a minute handful of cases:

When people face multiple charges from the same single act, in most cases, double jeopardy doesn’t even apply in the first place.

The relevant test comes from Blockburger v. United States, and it states (I’m paraphrasing) that it’s not double jeopardy to face two charges for the same act, as long as each charge contains at least one element the other does not.

This can be confusing in the abstract, so here’s an example.

Suppose that a completely hypothetical defendant named Maul Panafort is accused of committing tax fraud – basically, of hiding millions of dollars so that he didn’t have to pay either the IRS or his home state of Michissippi any taxes on that money.

Now, it’s pretty tough to lie on your federal tax return without lying on your state tax return, or vice versa. State tax returns use information like your adjusted gross income, calculated on your federal return. When those numbers don’t match up, folks get suspicious.

Wanting to evade suspicion, Maul Panafort naturally used the same fake numbers on his state tax return as he did on his federal tax return. But both the state and the feds found out, and now they both want to charge him with criminal tax fraud.

It’s not double jeopardy if they do. Take a look at the charges:

  • Federal: “you lied on your federal tax return.”
  • State: “you lied on your state tax return.”

Both charges include “you lied” and “on your tax return.” But the federal charge includes the “federal” element, which the state charge does not. The state charge includes the “state” element, which the federal charge does not.

Even if Mr. Panafort receives a Presidential pardon for federal tax fraud, the state can still prosecute him for state tax fraud. It’s not double jeopardy, because each charge contains an element not contained in the other.

The overwhelming majority of cases that both the state and federal governments can prosecute will fall into this category. There’s a reason it’s taken several years for SCOTUS to receive a petition in a case that cleanly addresses the separate sovereigns doctrine (and why Mr. Gamble’s attorneys went to great pains in that petition to stress that this was a “clean case”).

Will cases exist in which a Presidential pardon could bar state prosecution, if the separate sovereigns doctrine is overturned? Yes. It would have saved Mr. Gamble, for instance. But these cases are likely to be so few and far between as to be highly unusual – and I predict that anyone the current President wishes to pardon is likely to face non-double-jeopardy state charges anyway.

Are the conservatives really going to overturn the separate sovereigns exception?

My prediction: If the Court overturns the separate sovereigns exception, the vote will not be along political lines.

The strongest support for that position appears in the last case in which the Court considered the “separate sovereigns” question, Puerto Rico v. Sanchez Valle. There, the Court looked at whether Puerto Rico had sovereignty separate from the U.S. federal government (the Court’s answer: no).

Justice Ginsburg wrote a concurring opinion in which she pointed out that sooner or later, the Court needed to address the question of double jeopardy as it related to being prosecuted by both the state and federal governments – and she signaled that the exception may be overdue for retirement. Justice Thomas joined that opinion.

The Court may or may not overturn the exception, but there is no reason, currently, to think it would do so along conventionally-accepted political lines.

In fact, the separate sovereigns exception is fascinating precisely because it is so hard to come to a conclusion on based on traditional political leanings: its existence supports a certain type of bounded federalism that conservatives and libertarians traditionally support, but at the cost of increased police intervention in individuals’ lives and a counterintuitive reading of the Fifth Amendment, which they traditionally eschew.

Is there a good reason to support (or to oppose) getting rid of the separate sovereigns exception?

Off the top of my head, the biggest to support getting rid of it is fewer prosecutions: you’d be prosecuted in state or federal court, but not both. It’d also make the prohibition against double jeopardy clearer to ordinary folks, although it’s not going to make it exactly clear.

Reasons to support keeping it include that it’s a 150+ year old component of our federalist system, one that arguably supports the concept that the states really do have powers the federal government does not within their own borders. There’s a chance that ending it would have unforeseen consequences for the balance of power between the states and the federal government, which may not tilt in the favor of individual liberty.

It’s not an easy question, either way. But I do look forward to seeing which justices have what things to say about it after oral arguments.


I no longer practice law and this post isn’t legal advice, but feel free to share a coffee with me anyway.

A Quick Guide to Writing Satire

This bit of wisdom appeared on my Tumblr dash recently:

tumblr satire

(#THAT TAG THO)

And, since the topic of “how to write satire effectively” has come up for several of my students in the past few weeks, I thought I’d offer this

Quick Guide to Writing Satire

1.  Ask yourself, “is this a real argument I have heard/seen/read someone make – and mean it?”

If it’s an argument someone has made on your topic, in all seriousness, then when you parrot it, you are not writing satire.  Instead, you are agreeing with the serious-arguer.

Examples:

a.  “Overpopulation could easily be solved by sterilizing poor people.”

This statement is not satire.  Why?  Because this argument has been made, in all seriousness, in the past.  A quick Google search on “sterilization of the poor” turns up some pretty unsettling examples.

Yes, sometimes this argument gets used by writers attempting satire.  But, as this retraction from The Daily Currant illustrates, using an argument that many people take seriously can backfire on you in a big way.

b.  “Overpopulation could easily be solved by serving poor children as veal.”

This statement is satire.  Outside of Jonathan Swift’s infamous “A Modest Proposal,” perhaps the most well-known satire ever written, nobody appears to be seriously advocating for the marketing of poor children as veal or any other meat product.  A quick Google search for “serving poor children as veal” turns up recipes for veal, petitions to stop the eating of veal (made of baby cows, not baby humans), and links to agencies tasked with “serving poor children” (meeting their needs, not preparing them as food).

2.  This argument I’ve thought up is so hilariously impossible no one could ever state it seriously!  Am I safe to put it in my satire?

Have you looked it up to be sure no one really has stated it seriously?  Do that first.

I know the dreaded “R” word (“research”) puts a damper on your “oh, the cleverness of me!” buzz – I’ve been there.  But it’s worth spending five minutes with Google to avoid showing your arse in public, perhaps for all eternity.  Lesson Two to be learned from the above-linked Daily Currant retraction: the Internet never forgets.

3.  Okay, so my satirical argument hasn’t been argued seriously by anyone, and it is hilariously hilarious.  NOW can I write my satire, please?

You can if you do one more thing: make it so outrageous that even the people arguing seriously for the most extreme measures would say “whoa, that’s too far.”

If that sounds unlike any writing teacher’s advice you’ve ever received, that’s because satire is unlike any genre you’ve ever learned to write.  Satire is the ultimate “go big or go home” genre: if it’s not so completely outrageous that even the people advocating the most extreme measures say “whoa, hold up,” it has failed as a satire.

Examples:

a.  “Gay marriage should be illegal because America is a Christian nation, where non-Christians are stripped of their citizenship.”

Maybe no one on the anti-same-sex-marriage side of the argument has advocated seriously for stripping same-sex couples of their citizenship.  (Feel free to Google this.)  But a great many people on the anti- side have argued that American laws are so closely conflated with Christian values that permitting same-sex marriage would violate both.  From there, it’s not a big leap to “if Americans must follow Christian morals, then those who don’t follow Christian morals aren’t real Americans.”  Indeed, there are probably a few people in the world who actually believe this, whether or not they post to the Internet.

b.  “Gay marriage should be illegal because America is a Christian nation, where non-Christians are put in tiny boats and set afloat in the Arctic Ocean.”

This, however, is satire.  Not only does it make an argument no one is seriously advocating actually happens, but it makes an argument that even the most vehement anti-same-sex-marriage advocates would probably say should not happen.  Most people, no matter how passionately they are for or against same-sex marriage, are still going to say “whoa now, nobody said they had to freeze to death” – especially if the proposal is made in so many words.   Indeed, marooning people in the Arctic has a decidedly non-Christian ring to it.

To name another example: Remember that in “A Modest Proposal,” Jonathan Swift’s recommendation “for preventing the children of poor people in Ireland from being a burden to their parents or country, and for making them beneficial to the public” wasn’t to force them all into boarding schools, or train them all how to tune pianos.  People in Swift’s time were already advocating for such things, and “put them all in an institution” or “teach them all a trade that can’t possibly support that many practitioners” were both ideas advocated by people on various sides of the question.  Swift skipped all these genuinely “modest” proposals altogether and went right for the jugular: let’s just eat them.

Think of satire like a bouncy castle.  If you fill the bouncy castle up allll the way with air, fun times are had by all.  If you fill it up only halfway, however, it makes a sad puddle in the middle of the backyard and your birthday party is ruined.

4.  Help!  I still can’t tell satire from current-day American politics!

That makes two of us.  Perhaps you should write something about that?