Morning Ethics Warm-Up, 6/28/2018: The Post-Kennedy Retirement Announcement Freak-Out

Good Morning!

1. How prescient of me to headline yesterday’s warm-up “Deranged” before Justice Kennedy announced his retirement and the progressive/Democratic/ mainstream media/social media freakout commenced!

2. Duh. Since nobody seems to be writing about how perfectly this proves the Trump-inflicted brain damage on the Left, allow me:

  • Justice Kennedy is 81. As my dad used to say when he entered his 8th decade, he’s in the red zone, and can drop dead at any second. Did Democrats really assume he would keep working forever?

Their shock at this is ridiculous and unbelievable. WHAT? An 81-year-old judge is retiring?

  • This is a wonderful example of how people assume that everyone else thinks as they do. The Trump-Deranged have reached the point where they would saw their pets in half to undermine the President, so they assume that Kennedy feels the same way.

There is no evidence that he does, in part because, unlike Ruth Bader Ginsberg, who has periodically trumpeted her contempt for the President, he has been judicially discrete and professional.

  • It is per se irresponsible for an 81-year-old in a challenging job with national impact not to step down before he or she becomes incompetent, or drops dead. Scalia was irresponsible not to retire. Ginsberg should retire (she is 84). Breyer is two months short of 80: he should retire.

Outside of judges, we have multiple members of Congress, notably Pelosi and John McCain, who are being unethical by not stepping aside.

  • The bottom line is that nobody should be freaking out, because everyone should have been prepared for it.

3. We get it! You are vicious, juvenile, angry, rigis and irrational people. The Daily News nicely sums up the calm, analytical, reasoned reaction by the Left:

Continue reading

Morning Ethics Warm-Up, 6/27/2018: Unhinged

Good Morning.

1. Nah, there’s no mainstream media bias…This is one of the times that I am sorry that the Trump Deranged on Ethics Alarms have temporarily withdrawn from the Comment section battles, as I would love to hear their self-indicting rationalizations.

Here was this morning’s New York Times, big black headline:

JUSTICES  BACK TRAVEL BAN, YIELDING TO TRUMP

Outrageous in every way. The Court did not “yield” to anyone or anything but the law as it stands and has stood for centuries. As Constitutional Law expert Eugene Volokh succinctly put it, “The federal government may pick and choose which foreigners to let into the country (at least setting aside foreigners who have are already been granted residence), even based on factors — political beliefs, religion, and likely race and sex — that would normally be unconstitutional.” He explains:

This used to be called the “plenary power” doctrine, referring to the principle that the government has essentially unlimited power when it comes to at least this aspect of immigration law, unlimited even by the Bill of Rights. It is not based on the constitutional text; textually, the First Amendment would apply to all exercise of Congressional authority, whether under the Commerce Clause or the District of Columbia Clause or the Necessary and Proper Clause under Congress’s power over immigration. But, right or wrong, it is based on longstanding American legal history; and the majority adheres to that history.

Historically, this has even be used to authorize Congress to discriminate based on race (query whether the Court would today condemn this as “irrational”; more on that below). It has long been seen as authorizing Congress to discriminate based on country of citizenship, without investigation into whether such discrimination might actually be motivated by ethnic hostility. And, most relevant to today’s decision, it was seen in Kleindienst v. Mandel (1972) as authorizing discrimination based on political ideology, which would otherwise be forbidden by the First Amendment….The Court rejected the First Amendment claim:

Recognition that First Amendment rights are implicated, however, is not dispositive of our inquiry here. In accord with ancient principles of the international law of nation-states, the Court in The Chinese Exclusion Case (1889), and in Fong Yue Ting v. United States (1893), held broadly, as the Government describes it, that the power to exclude aliens is “inherent in sovereignty, necessary for maintaining normal international relations and defending the country against foreign encroachments and dangers—a power to be exercised exclusively by the political branches of government ….” Since that time, the Court’s general reaffirmations of this principle have been legion. The Court without exception has sustained Congress’ “plenary power to make rules for the admission of aliens and to exclude those who possess those characteristics which Congress has forbidden.” Boutilier v. Immigration and Naturalization Service (1967). “[O]ver no conceivable subject is the legislative power of Congress more complete than it is over” the admission of aliens. Oceanic Navigation Co. v. Stranahan (1909)….

As a result, the Court held that, if decisions to exclude aliens could ever be set aside, this would be so only if there was no “facially legitimate and bona fide” reason to exclude the alien. In Mandel’s case, the dissent noted, those reasons — labeled by the government as Mandel’s “flagrant abuses” during his past visits to the U.S. — “appear merely to have been his speaking at more universities than his visa application indicated.” The dissent argued that “It would be difficult to invent a more trivial reason for denying the academic community the chance to exchange views with an internationally respected scholar.” But the Court didn’t investigate whether the government’s true motive might have been the Administration’s disapproval of Mandel’s political ideas, rather than the supposed violation of past visa conditions; the requirement of a “bona fide” reason did not appear to require an investigation into the government’s true motivations, but rather simply focused on whether the “facial[]” reasons seemed sufficient:

In summary, plenary congressional power to make policies and rules for exclusion of aliens has long been firmly established. In the case of an alien excludable under [the provision involved in Mandel], Congress has delegated conditional exercise of this power to the Executive.

We hold that when the Executive exercises this power negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant.

The majority’s decision in Trump v. Hawaii basically applied this logic to another clause of the First Amendment — here, the Establishment Clause (which normally bars discrimination based on religious denomination, including the use of neutral rules in a discriminatorily motivated way) rather than the Free Speech Clause….

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Morning Ethics Warm-Up, 6/25/2018: Thuggery, Double Standards And Hypocrisy…Actually, I Could Use This Title EVERY Morning

Good morn..oh, who am I kidding? It’s a crap morning…

[The Warm-Up is going to be uncharacteristically short. (UPDATE: Well, not that short, as it turned out…) Between my hotel check-out and my arrival home, I spent 11 hours in lines, crowded airports, an airplane, listening to violent thunderstorms and trying to get online with the wi-fi going in and out, not to mention the usual excessive intake of junk y food purchased at exorbitant prices. On top of that, I’m really ticked off, behind the 8-ball in too many projects to mention, out of food, and can’t figure out how to release the emergency brake on the only functioning car we have, my son’s Mercedes.]

1. Another Republican Trump ally abused. The new “resistance” tactic continues to escalate… From the Tampa Bay Times…

“A group of protesters accosted Florida Attorney General Pam Bondi outside the screening of the new documentary about Mister Rogers at the Tampa Theatre on Friday night, questioning her about her recent actions on health care policy and her stance on immigration.

A video of the confrontation, taken by progressive activist Timothy Heberlein of Organize Florida, shows several people shouting down Bondi as she leaves the theater escorted by law enforcement after seeing Won’t You Be My Neighbor….”

Comments:

  • Again, there is an ethical obligation for principled Americans to confront these fascists—meaning the protesters. Every citizen has the right to go to a movie, eat out, or walk their his or her dog in the park without being abused and harassed. Stand up for that right (see: The Declaration of Independence) , or lose it. Bondi should have been rescued on the spot before authorities had to be called.
  • You can check Ethics Alarms by searching for “Pam Bondi.” I am not a fan; indeed, she is an outrageously unethical prosecutor. But the way to address that is through appropriate regulatory bodies, not through the acts of vigilante thugs outside a movie theater.
  • “What would Mister Rogers think about you and your legacy in Florida? Taking away health insurance from people with pre-existing conditions, Pam Bondi!” Maria José Chapa, a labor organizer, can be heard yelling to Bondi in the video. “Shame on you!” Who cares what Mister Rogers “would” think, if he weren’t, you know, DEAD? A. Nobody knows what he would think. B. “What would Jesus think?” is idiotic enough, but Mr. Rogers? This wasn’t only unethical harassment, it was incompetent harassment.

2. Tales of the double standard… From Mediate: Continue reading

Contender For Unethical Quote Of The Decade: Rep. Maxine Waters (D., CAL)

“If you see anybody from that Cabinet in a restaurant, in a department store, at a gasoline station, you get out and you create a crowd and you push back on them, and you tell them they’re not welcome anymore, anywhere.”

Maxine Waters, race-biting fool extraordinaire and, astoundingly, a member of Congress, endorsing the Red Hen restaurant’s denial of Sarah Huckabee’s right to enjoy a public accommodation with her family, and encouraging more of the same.

“Creating  crowd”  to harass someone who is doing no harm is called “inciting a riot.” If I see anyone trying to “create a crowd” to tell a citizen that he or she is not welcome, I’m calling the police. In the alternative, I’ll “create a crowd” of fair and decent Americans to make the point that bullies and bigots aren’t welcome in a civilized society. Fortunately most rational people realize that Waters is a vicious idiot, but the Democrats have an obligation to make her cool it.

She is going to get someone killed, and those who tolerate and enable her will be complicit.

Now That The ACLU No Longer Wants To Be The ACLU, The United States Needs An ACLU

In a confidential memo obtained by former board member Wendy Kaminer, the American Civil Liberties Union has defined a policy that retreats from and undermines—perhaps the best word is betrays— its traditional mission of protecting the Bill of Rights, and especially the First Amendment rights of all Americans.  The memo says in part,

Work to protect speech rights may raise tensions with racial justice, reproductive freedom, or a myriad of other rights, where the content of the speech we seek to protect conflicts with our policies on those matters, and/or otherwise is directed at menacing vulnerable groups or individuals….We are also firmly committed to fighting bigotry and oppression against other marginalized groups, including women, immigrants, religious groups, LGBT individuals, Native Americans, and people with disabilities. Accordingly, we work to extend the protections embodied in the Bill of Rights to people who have traditionally been denied those rights. And the ACLU understands that speech that denigrates such groups can inflict serious harms and is intended to and often will impede progress toward equality.

…There is no presumption that the First Amendment trumps all other amendments, or vice versa. We recognize that taking a position on one issue can affect our advocacy in other areas and create particular challenges for staff members engaged in that advocacy. For example, a decision by the ACLU to represent a white supremacist group may well undermine relationships with allies or coalition partners, create distrust with particular communities, necessitate the expenditure of resources to mitigate the impact of those harms, make it more difficult to recruit and retain a diverse staff and board across multiple dimensions, and in some circumstances, directly further an agenda that is antithetical to our mission and values and that may inflict harm on listeners…Our defense of speech may have a greater or lesser harmful impact on the equality and justice work to which we are also committed, depending on factors such as the (present and historical) context of the proposed speech; the potential effect on marginalized communities; the extent to which the speech may assist in advancing the goals of white supremacists or others whose views are contrary to our values; and the structural and power inequalities in the community in which the speech will occur….

Where the ACLU defends the right to speak of those with whom it disagrees, it should generally engage in counter-measures both to reinforce the
values the speaker attacks and to make clear that we do not endorse the substance of the views. Some options might include:

1. Denouncing the views in press statements, op-eds, social media, and other available fora.

2. Participating in counter-protests. When we assist people in securing the right to march or demonstrate for views we condemn, we can and generally should support and participate in counter-protests, with consideration given to participation by senior staff or board members to highlight the ACLU’s commitment and ensure that such participation does not disproportionately burden other staff.

3. Supporting other counter-speech by supporting, organizing or helping to organize events, facilitating access to media, or taking other actions that will amplify and
strengthen the voices of those espousing our values.

4. Expanding our work on behalf of the values the speaker attacks.

5. Earmarking any fees recovered from the case to projects within the ACLU that further the values that we support and the speaker attacked, or donating them to another organization that works to advance those values, preferably in the geographical area where the speech occurred….

Continue reading

Morning Ethics Warm-Up, 6/20/18: Darrow, Damn Technology And Dunkin’ Donuts

Good Morning!

1. Shameless self-promotion Dept. Once again, I am presenting my three-hour Clarence Darrow and modern attorney ethics CLE program for the D.C. Bar, and later this summer, Virginia CLE will be sponsoring the same seminar in Richmond and Northern Virginia. As always, my partner and collaborator in All Things Darrow is esteemed D.C. actor (and American University law school instructor, and, I am proud to say, my friend) Paul Morella, who has been Darrowing since he premiered my one-man show about the great and flawed lawyer in 2000, for The American Century Theater. His website is here. This is Paul…

Paul is a lot taller, thinner and better looking than Darrow, and unlike Clarence, he also bathes regularly. It doesn’t matter. I can’t recommend his show, which he performs for bar associations and legal groups around the country, more highly, and would feel this way even if I hadn’t written it. Of course, any group that wants Continuing Legal Education credits can also book today’s seminar, which has many of Darrow’s greatest courtroom orations, but also legal ethics commentary from me.

2. Ah-HA! NOW I understand why I’m being sued for defamation!  This is in the “This comes as no surprise” category, but it still explains a lot. The Pew Research Center just released a survey that demonstrates that a large proportion of the public can’t distinguish facts from opinions. The main portion of the study  measured the public’s ability to distinguish between five factual statements and five opinion statements. Pew found

“…that a majority of Americans correctly identified at least three of the five statements in each set. But this result is only a little better than random guesses. Far fewer Americans got all five correct, and roughly a quarter got most or all wrong. Even more revealing is that certain Americans do far better at parsing through this content than others. Those with high political awareness, those who are very digitally savvy and those who place high levels of trust in the news media are better able than others to accurately identify news-related statements as factual or opinion.”

I challenge that last part. It may well be that those who place high levels of trust in the news media could distinguish between fact and opinion in those  ten statements, but it doesn’t change the fact (now this is my opinion, but I still believe it is demonstrably true) that the news media distorts what it represents as facts based on journalists’ biased opinions. Continue reading

Father’s Day Morning Warm-Up, 6/17/18: More On The Horowitz Report

Happy Father’s Day, fathers!

(What a shame you all belong to a gender that is such an inferior, toxic, useless and exploitative feature of society!)

I’m sorry that yesterday was so light on content here; I was occupied from early morn to late afternoon at a distant funeral (more on that in a later post), and then sufficient fried after  I arrived home that I couldn’t brink myself to post….especially since virtually nobody reads the blog after about noon on summer Saturdays. And now I am hopelessly backed up…

1. “Trust us because you need to…Ann Althouse made what I consider a perceptive, cynical and provocative observation related to the Inspector General’s report on the Clinton email investigation. She wrote in part,

FBI Attorney 2 was asked what he meant by that “Viva le resistance,” and he said:

“So, this is in reference to an ongoing subject. And then following that, like I interpreted [FBI Attorney 1’s] comment to me as being, you know, just her and I [sic] socially and as friends discussing our particular political views, to which I see that as more of a joking inquiry from her. It’s not something along the lines of where I’m not committed to the U.S. Government. I obviously am and, you know, work to do my job very well and to continue to, to work in that capacity. It’s just the, the lines bled through here just in terms of, of my personal, political view in terms of, of what particular preference I have. But, but that doesn’t have any, any leaning on the way that I, I maintain myself as a professional in the FBI.”

Obviously, he’s just asserting what he must (and what the Executive Summary will also assert) that he has political opinions but they don’t bleed into his work because he is a professional…….It really is a convention to believe that people can do that. You can be cynical or skeptical or just plain realistic and think that’s not how human minds function, but it’s a fiction we actually do need to believe in (at least up to a point) if we are going to put human beings in a position of trust.

The IG said that it showed “extremely poor judgment and a gross lack of professionalism” to use the FBI’s systems and devices to send these messages, because “It is essential that the public have confidence that the work of the FBI is done without bias or appearance of partiality, and that those engaged in it follow the facts and law wherever they may lead and without any agenda or desired result other than to see that justice is done.”

Perhaps in the interest in maintaining what is “essential,” the IG “found no documentary or testimonial evidence directly connecting the political views these employees expressed in their text messages and instant messages to the specific Midyear investigative decisions.” I notice the words “directly” and “no documentary or testimonial evidence.” You can read the report yourself and see the basis for inference and suspicion, but you’re on your own. There’s plenty of evidence that does shake our confidence that the FBI does its work without bias and without any agenda or desired result. But — the IG encourages us to think — it’s also possible to maintain your confidence, so why don’t you do that? Because your confidence is essential!

This is, however, why government employees are forbidden by law to engage in conduct that creates “the appearance of impropriety.” These exchanges obviously did that. Some one like “Attorney 2” can claim that the fact that he hated Trump and supported Hillary had no effect on his required fair and objective performance of the job, but we are asked to believe that on faith. We hear the same thing from defenders of the blatantly biased news media: true, they are 95% Democrats, but they’re professionals! Nay, there’s no bias there! This would be easier to believe if the actual reporting didn’t seem so positive in the direction of those they are biased for, and so negative when dealing with those they are biased against.

Ann calls the presumption of professional objectivity a “convention,” which is another way of saying “myth.” Continue reading

Ethics Dilemma: What Can Be Done About People Like This? [Poll Included]

Hold on to your skulls…

Social media can spread stupidity like a viral plague. Is there anything  ethical and constitutional  that can be done to protect the imperiled children addled  mothers like this may raise?

[Related Ethics Alarms posts here (feeding kittens a vegan diet) and here (dogs).]

Morning Ethics Warm-Up, 6/15/18: Spin Wars (Part I)

Good Morning…

…from a galaxy not nearly far enough away…

1. Quick takes on a remarkable 51 minutes on the White House lawn. I just, and I mean just, finished watching President Trump’s spontaneous press conference on the White House lawn, standing within easy spitting distance—brave, given how much so many of these people detest him—of a pack of reporters as Fox’s Baby Doocy held a microphone for him, and picking questions, often hostile, out of the cacophony. Has any previous President done something like this? I’ve never seen such a thing.

If you can’t admire this performance, your anti-Trump virus is raging out of control. I miss the reflex, knee-jerk Democrats and progressives who have, I hope temporarily, taken a hiatus from Ethics Alarms because, in my assessment, they no longer can muster credible defenses of the way this President has been treated by the news media and the resistance, so they have retreated to the warm cocoon of the left-wing echo chamber. Trump’s appearance this morning as well as the Inspector General’s report on the Clinton email investigation are integrity tests. I’d like to think the otherwise intelligent and analytical progressives here would pass them. Ducking the challenge is not a good sign.

Of course, Trump was Trump. As I wrote long ago, constantly harping on what we all know is wrong with Trump is boring and pointless. (See: The Julie Principle) He exaggerated. He spoke in infuriatingly inexact and colloquial word clouds. He celebrated himself and pronounced himself brilliant. I know, I know: if his very existence in the universe is offensive to you, then this performance would be painful. (When Donald Trump isn’t the elected President of the United States, his existence  will probably be offensive to me once again, just as as it was right up to November 8, 2016.) However, the fact is that President Trump showed mastery of the situation. He managed the chaos and maintained his dignity while a generally angry and adversarial mob was shouting at him and interrupting him. I run interactive seminars with lawyers for a living, and I am qualified to say this: what he did is difficult, and he handled it very, very well. Anyone who watches those 51 minutes and refuses to say, “Well, he’s not senile, demented, unstable, dumb or teetering on the brink of madness, I’ve got to give him that much”  had disqualified themselves as a credible Trump critic. He was in command, quick, calm, and in his own way, masterful.

The response of the anti-Trump news media will be to “factcheck” him. He said, for example, that the IG report “exonerated” him, as the pack screamed, “But the report doesn’t discuss the Russian investigation at all!”  This is the old, dishonest and so boring, “Trump is lying when he expresses his feelings and impressions in the cloudy, semi-inarticulate imprecision that he always speaks in, which we will pretend isn’t what we already know it to be.” Of course the report doesn’t formally or actually exonerate him. It does,  in his view (and mine), show a corrupt and untrustworthy culture in the FBI and the Obama Justice Department that treated the Clinton investigation in exactly the opposite fashion that they have used to investigate him. This means, to Trump, that the Mueller investigation is a political hit job, and he regards that as the equivalent of exoneration. Well, he can regard it as cheesecake, if he chooses. His opinion is not “a lie.” (I am being sued, you may recall, by an Ethics Alarms commenter who maintains in his complaint that opinions are lies, so I am rather sensitive on this point.)

Several of Trump’s responses were succinct and effective, as well as infuriating to the anti-Trump journalists, I’m sure. He said that President Obama lost the Crimea when he refused to enforce his own “red line,” thus destroying his credibility and causing Putin to correctly assume that he could move on the Ukraine without consequences. True. He said that he was not worried that Michael Cohen would cooperate with the Mueller investigation, because he, the President, had done nothing wrong. (Headlines like “Will Cohen flip on Trump?” over the last few days imply that there is something to flip about, because the Left, “the resistance,” the news media and those AWOL Ethics Alarms readers have assumed from the beginning that Trump is guilty of some dire and impeachable conduct. Continue reading

Morning Ethics Warm-Up, 6/14/18: Derangement!

Goooooood morning Vietnam!

(Well, not just Vietnam, of course, but did you know Ethics Alarms has had 643 views from Vietnam in 2018, and three already this morning? I wonder how many of those readers suffer from anti-Trump derangement…)

Prelude: I would prefer not to let this topic dominate a Warm-Up, but the alternative is to keep posting on it separately, and then I would get more of those “why do you keep posting about this when children are being taken out of the arms of their mothers at the border?” messages. I post about it for the same reason I began posting on it two Novembers ago, and for the same reason 2016 Post Election Ethics Train Wreck is one of the fattest tags on the blog: the organized, multi-institution hysteria focused on the elected President is unprecedented, destructive, dangerously divisive and threat to the stability of the nation and our communities. Moreover, it is getting worse, more shrill, and to my eye and ear, more desperate, as President Trump’s successes, much as the new media and “the resistance” denies them, increasingly makes the Angry Left and Hillary Bitter-Enders realize that all their protesting and screaming at the sky and biased news stories and leaks and unethical investigations not only aren’t working, but are, in fact, increasing support for the President and public distrust of his sworn destructors. As proof of further lack of hinges, the Deranged think the rational response to this is to become more shrill and more obnoxious.

Unrelated but still annoying note: On HLN just now, after Lovely Robin Meade reported on a Norwegian study that purports to prove that “we is getting dummer,” with an estimated 7 point drop in average IQ since the 1970s, her sidekick Jennifer Westhoven noted off camera that all 730,000 test subjects were all men, in a tone clearly designed to suggest, “so that explains it.” Then the two women laughed like the witches in “MacBeth.” See the recent post on this phenomenon, and reflect. Then imagine if an on-air personality had said “blacks,” “Norwegians” or even “women” in the same context. I’m not accepting such jokes as amusing or acceptable from people who won’t accept the same kind of jokes from me.

1.  It’s time to break out the surgical masks and gloves, I fear. Ann Althouse found this comment on generic New Your Times Trump-hater Frank Bruni’s column, “How to Lose the Midterms and Re-elect Trump,” which begins

“Dear Robert De Niro, Samantha Bee and other Trump haters: I get that you’re angry. I’m angry, too. But anger isn’t a strategy. Sometimes it’s a trap. When you find yourself spewing four-letter words, you’ve fallen into it. You’ve chosen cheap theatrics over the long game, catharsis over cunning.”

The rant was the most popular of the many responses it received from on-line Times readers:

“What are we supposed to do? Speak calmly while he’s praising neo-Nazis? Wag our finger when he walls us in? Abide his ignorance and hate with good grace? Tsk tsk when he embraces murderers and war criminals while berating honorable Democrats? We’re not going to win over the deplorable nincompoops who voted for this man. Do you honestly think that we will offend their delicate sensibilities? These are the people who witnessed the vilest displays of hate, including his encouragement of skinheads to beat up protesters. They heard him brag about groping unwilling starlets. They watched as he mocked a disabled reporter. And yet they went into voting booths all across America and pulled the lever for this narcissistic, unread, vulgar excuse for a human being. Robert De Niro expressed openly the disgust that I have been feeling in my den, sitting in front of the TV and pretty much yelling the same sorts of things when I encounter the daily outrages that ooze from this pustule of a president. Who’s to say that Democrats aren’t scoring victories because of the palpable feeling of disgust that attends this so-called president’s every utterance? This man body-surfed into the White House on a wave of resentment and hate. Maybe a bigger wave of righteous anger will flush him and his Republican enablers out, and down into the metaphorical swamp from which they came.”

Althouse’s readers are almost unanimous in pronouncing this as the Trump Derangement equivalent of your neighbor vomiting black blood into the street. The comment is an impressive compendium of resistance talking points, distortions, and hysteria, culminating in endorsing a vulgar jerk shouting “fuck” at a non-political award show. What are you supposed to do? Oh, by all means, shouting “fuck” and “cunt” are the best options. How about being a responsible citizen, engaging in civil civic discourse based on substance rather than emotion, and respecting your fellow citizens when they have different opinions than you do? Despite the fact that Althouse is a centrist, her commenters overwhelmingly see the folly of the Trump Derangement strategy. One writes, Continue reading