Under Color of Law: June

Read Shan’s take on various political and cultural happenings (and Tweets!) below.

Former VP Mike Pence joined the growing number of Republicans willing to compete against twice-impeached and now twice indicted former President Trump. With a record like that it’s astonishing the ranks of GOP wannabe contenders doesn’t number in the hundreds.

It was Rolling Stone magazine that reported the allegation against former Vice President Mike Pence that he calls his wife “mother.” While many parents refer to each other as “Mom” or “Dad” the Pence allegation – sourced to Democratic guests at a dinner with Pence when he was still governor of Indiana – somehow carries with it a high creepiness factor – right up there with the infamous fly that appeared in Pence’s hair during the debates.

But maybe Pence wasn’t actually referring to former Indiana First Lady – who Pence also dubs his “Prayer Warrior” – not sure which moniker is worse – maybe he actually was referring to the fact that the state of Indiana is known as “The Mother of Vice Presidents.”

In the thirteen elections from 1868 to 1916 Indiana supplied ten of the candidates. In the all-time list, Indiana has six VPs surpassed only by New York which has eleven. But the bad news for Pence is that while Indiana may be the “Mother” of VPs it has produced only one President – that was Benjamin Harrison. Harrison holds the record for the shortest Presidency having sickened and died only 32 days into office.

DeSantis has thus far displayed a far from charismatic style of campaigning but most alarmingly he displays dogged commitment to passing oppressive law after oppressive law.

Starting with his “Don’t Say Gay” bill, “Stop Woke Act,” banning abortions after six weeks and now his law that bans Chinese nationals from owning land, he shows a voracious appetite for proving that – unlike Trump – he will actually pass laws to back up his hateful rhetoric. While DeSantis is getting soundly trashed in his fight with Disney the real power of his candidacy is not his lackluster personality but his legislative agenda.

A personal observation: some months ago I was on the phone with a very nice customer service representative who seemed completely sane and reasonable and as we waited out some computer delay the conversation turned to politics. She lived in Florida and said that she knew it wasn’t popular but she really liked DeSantis because she felt he did good things for his state. That worries me.

Analysis: DeSantis Law Banning Chinese Nationals from Owning Land is a Lookback to Racist laws of the 19th & Early 20th Century – DeSantis celebrated Asian American Pacific Islander Heritage month by signing into law legislation that bans Chinese nationals from owning land. It’s a modern version of what are known as “Alien Land Laws.” Chinese citizens are barred from owning land in it is now a makes a felony in Florida for Chinese persons to violate this racist law. The alleged justification for this law is national security and foreign influence in critical areas, but facts just don’t back up this supposed threat. For example, data shows Chinese buyers were involved in only 0.1 percent of all real estate purchases in Florida in 2022. Such scapegoating of China continues Trump’s “kung-flu” Covid-19 racist tropes and puts AAPI (Asian American and Pacific Islander) communities at risk. The law, like much of the DeSantis campaign is poorly thought out and performative, it violates the Equal Protection Clause and Due Process clauses of the Constitution and the federal Fair Housing Act, which prohibits making housing unavailable on the basis of among other things: national origin. Check out the other economic and social consequences here. Note Florida isn’t alone in these Alien Land Laws – Texas, Louisiana, South Carolina and Alabama are all reinvigorating these racist throwback laws.

If twice impeached and twice indicted former President Trump needs a role model, he need look no further than Texas AG Ken Paxton. While Paxton has only been impeached once compared to Trump’s two impeachments, Paxton has easily outpaced Trump in the category of “how long have I been indicted without a trial.” Paxton was indicted in 2015 – seven years ago – on securities fraud and has yet to go to trial. ​

But Paxton’s example also holds bad tidings for Trump as the Republican state legislature voted to impeach Paxton despite Trump threatening to fight any Repubs who would vote to impeach and despite Sen. Ted Cruz calling the impeachment a travesty. In this sense Paxton may be the canary in the coal mine for whether establishment Republicans ultimately will feel comfortable moving away from following Trump’s orders and the views of extremists like Ted Cruz.

Analysis: Trump’s strategy to win the Republican nomination is to encourage many people running against him because it dilutes support for any one of the new candidates striving to make themselves known and build a committed base while strengthening his position since he can count on his base to turn out and vote. But this same strategy causes the Republican party as a whole to lose strength in a general Presidential election because if Trump wins the power of his Republican base does not translate into winning a general election – it did not do so last time and his base is not going to grow any bigger than last time. In many ways the Biden strategy is to make sure it doesn’t grow any bigger by not giving Republican voters any issue that will turn them out in big numbers.

John Durham, the U.S. attorney hand selected by Barr to investigate the probe commenced by the FBI in 2016 into ties between the Trump campaign and Russia needs to apologize to the American people for wasting 4.6 million dollars and four years and to a lot of trees that lost their lives to produce a 300-plus page report that reads like a plagiarized version of the 2019 report by the Justice Department’s Office of Inspector General.

Despite the expenses, the investigation has not uncovered any major wrongdoing or led to important indictments. It did reveal Durham’s weak courtroom skills after he took to the well of the court himself in an effort to actually win a trial – the jury acquitted – and ended with a whimper offering some fussy complaints about the exact type of opening of a case the FBI should have used but not disagreeing with the 2019 OIG report that the FBI had properly opened the investigation. Durham offered little to no policy reform.
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Analysis: I think AG Garland should have shut this down long ago rather than continuing to waste tax payer money. Granted the bulk of the spending probably already happened by the time Garland became AG with the spendy bro-trips to Italy for Durham and then AG Barr and their weekly steak dinners (caveat: we don’t know who actually paid for that so I am assuming it was on the tax-payer dollar). But Garland’s strategy was to do nothing that anyone could interpret as being partisan – how did that work out for you? – leaving in place Durham as well at the hold-over prosecutor still investigating Hunter Biden in an investigation that dates back to 2018. In Durham’s case he let Durham’s nothing-burger speak for itself.

“Bluesky,” a project backed by Jack Dorsey, the co-founder of Twitter is aiming to develop an open-source and decentralized social media protocol. So what exactly does that mean and what makes it different from every other dopamine dispensary social media app.

Bluesky is making waves because of $2.5 million grant from Twitter to Bluesky’s lead developer, as well as the appointment of a new technical advisor, but that’s not what the industry known for disruption is so obsessed over. The platform is the first to offer alternatives to the traditional algorithm.

The app, which is currently invite only, allows users to decide what level of moderation they want, ranging from “hide,” “warn,” or “show,” for things like hate speech, spam and impersonation. While twitter, youtube, facebook, instagram and tiktok struggle with trying to moderate content while wanting to appear both as free speech advocates and refusing to admit they are publishers, this new solution arguably offloads the problem onto the user and literally creates the first individualized experience of social media. But no amount of individualized experience at scale can avoid the problems of controversial, graphic and hateful content. Complaints about on Bluesky already. ​

Analysis: Social media platforms hide behind “free speech” and the much misunderstood Section 230 mythical neutrality principles to avoid having to spend money on the complex and thankless job of content moderation. The amount of hot air expended on social media platforms and their users debating whether they are publishers is just hot air. As the Electronic Frontier Foundation points out, Section 230 in fact makes no such distinction.

Short answer: of course, it can be. “It’s the programming, stupid.” ​

But the bigger question is how will it disproportionately affect minority communities?

To use but one example – it’s one of my favorite areas because it involves students and I pioneered the legal practice of student defense – let’s look at academic dishonesty. Academic dishonesty, is disproportionately cast on students of color as a poorly veiled disguise for blatant racism.

In a survey, Black and Asian/Asian American students reported being accused of plagiarism more than any other group (12 percent for both groups, versus 6 percent of all students). With these glaring numbers and decreasing minority teachers as a result of strengthening CRT laws in several states, it is clear that ChatGPT may easily become the go-to scapegoat to feed the belief that POC students are not as intelligent as their white counterparts. We will need to keep a watchful eye on how AI is used in the academic world.

Please do let me and the team know what topics you would like to hear more from me about – look forward to hearing your voices!