“Forbidden Fruit” and how a legal doctrine may decide the fate of America

First off, because everyone is talking about it, here at last are signs that a member of Congress was actually able to read (closely) the 25^th Amendment. (I still think my approach is more subtle, incorporated in the proposed Fact Act… ) and explained here.  “Exit strategies Part II: Surprising aspects of the 25th Amendment." 

Now on to today's topic. But I'll finish with a speculation how America's women -- especially wives -- may pull a gentle Lysistrata... and save the republic.

== Where will you stand, when the devil turns round? ==

Alas. In the recent Supreme Court confirmation hearings, there's one line of questioning I'd love to have seen Democratic senators pursue. (Well, we also all deserve to learn more about the possibility of gambling-addiction and mob ties.)

My question is complicated, but might have cornered Judge Kananaugh. Certainly, Sens. Feinstein or Harris etc. could/should have asked Kavanaugh to explain the "fruit" theory. Or "fruit of a tainted tree." What’s that? It'll take some explaining:

We all know if a perp's rights are violated (e.g. no Miranda warning) then any evidence against him that derives from that failure becomes inadmissible. In fact, forbidding fruit from an illegal police act is only one possible remedy to deter such acts and enforce rigorous cop-professionalism. Another option is to punish the police who committed the errors. Either method will work, causing strenuous efforts to reduce error rates. But we know the punishment option would wreck police morale, so it is only used in extremis. Instead, the banishing of "fruit" punishes prosecutors, who presumably can take the disappointment better.

One of my correspondents, Ben Brown, responded to me with both affirmation and clarification in legalese:

“The "exclusionary rule" is a judge-made rule that was intended to enforce the Fourth Amendment to the U.S. Constitution. The Fourth Amendment prohibits most warrantless searches and all unreasonable searches, but is silent as to how this prohibition is to be enforced. To deal with this lacuna, courts invented the "exclusionary rule," which says that prosecutors can't use evidence obtained in a search that violates the Fourth Amendment. As you rightly point out, the "exclusionary rule" discourages such illegal searches without the loss to police morale that a more punitive policy would entail. Also, by using the "exclusionary rule" in lieu of monetary penalties (e.g., allowing victims of illegal searches to sue the government for damages), the courts have preserved public treasuries. The "fruit of the poisonous tree" doctrine is an extension to the exclusionary rule. If a prosecutor obtains a piece of evidence, A, directly from an illegal search, and then uses A as a clue that leads to a second piece of evidence, B, the prosecutor may use neither A nor B. It is important to note that the exclusionary rule is not in the Constitution itself; it is merely a stratagem courts use to enforce the Constitution. So, as you rightly point out again, the Supreme Court could theoretically do away with the exclusionary rule and replace it with an alternative, workable stratagem.”

Now to ironies: the 'fruit of a tainted tree' argument is exactly the straw that the President’s lawyers -- Giuliani etc. – clutch in frantic desperation! They hope to toss the whole Mueller investigation, not due to their client’s innocence (no one even tries to assert that, anymore) but a technicality. That the FISA court search warrant on R Gates that started all the dominoes falling came about from the "politically biased Steele Dossier."

Put aside that it's a lie. The FISA request was already underway for other reasons. And the Steele dossier was originally commissioned by Republicans! And there's absolutely no hint of anything illegal or untoward about the Steele Dossier's process. That is still the thread on which they hope Kavanaugh will work with Gorsuch and Thomas and Alito to toss everything Mueller and end the U. S. republic.

Only then, tellingly, Ben Brown adds: “It is speculated that Judge Kavanaugh is actually not in favor of the exclusionary rule, although he currently enforces it due to binding Supreme Court precedent.” 

Fascinating. In fact, banning the fruit of a tainted procedure is not a matter of reflex necessity! Especially not when the fate of the republic is in balance and the to-be-forbidden "fruit" includes evidence of presidential high crimes and treason.

== By his 'fruit' you shall know him ==

So, which way will Kavanaugh swing?  We all must start preparing now to make these arguments. But the immediate import of the "fruit" standard applies to Kanavaugh himself. 

Consider. If the man who appointed him is later proved to have been a mafiosi and a traitor, does this impugn his appointments? His "fruit"?  Under those conditions, an august and truly admirable justice, like Abe Fortas, might resign. But it cannot happen when the jurist in question was “groomed” by a dogmatic feudalist movement, all his life. (A grooming perhaps reinforced and enforced by methods I describe elsewhere.)

We are in dangerous, unprecedented territory and I am afraid it might wind up being decided in the ultimate court. The one that outranks the SP. To which nations and peoples have gone to confront injustice, when all institutions fail.

I fear this, though I have been warning of it, for more than a decade. We need to keep clear heads. Take deep breaths. Prove to be the cool, thoughtful ones. But also let the Murdochians and their casino/slumlord/mafiosi/KGB backers know that we will remember them, totally, if it comes to that.

== “I pick the best people. I’m a great judge of character ====

The ammo Omarosa Manigault-Newman has given us is not a silly he-said/she-said spat about “n-words,” but utter refutation that Donald Trump is a “good judge of character.”

I wrote those words before we ever heard of the “anonymous op-ed writer” or saw excerpts from Bob Woodward’s book. It seems that every week, people Donald Trump appointed as “special, brilliant, the best” wind up denounced by him as “treacherous, crazy liars… the worst.”

Whatever the merits of any one case, and whoever is lying – (in the case of Trump vs. Omarosa, likely both) – no Hannity incantation can spare your mad uncle from one dissonant truth:

Donald Trump chooses people he later decides to hate.

It’s the central fact that no one can evade. Appointing good people is a president’s #1 job. But he’s absolutely proven to be a lousy judge of character… including that “stable genius” he sees in the mirror.

Tom Englehardt, on Salon, runs through a long list of Trumpian “triumphs” like debasing the national discourse, crashing U.S. science and demolishing our alliances. Then he goes on to say Donald Trump will not be remembered for any of those things. Not even the relentless chain of “betrayals” by his own people:

“He won’t be remembered for the record crew of people who took positions in his administration only to find themselves, within a year or so (or even days), fleeing the premises or out on their noses, including Anthony Scaramucci (6 days), Michael Flynn (25 days), Mike Dubke (74 days), Sean Spicer (183 days), Reince Priebus (190 days), Sebastian Gorka (208 days), Steve Bannon (211 days), Tom Price (232 days), Dina Powell (358 days), Omarosa Manigault Newman (365 days), Rob Porter (384 days), Hope Hicks (405 days), Rex Tillerson (406 days), David Shulkin (408 days), Gary Cohn (411 days), H.R. McMaster (413 days), John McEntee (417 days), and Scott Pruitt (504 days). And White House Counsel Don McGahn was only recently tweeted out of office, too, with others to follow.”

“Nor will he be remembered for the number of close associates who turned on him — from his personal lawyer Michael Cohen, who once swore to take a bullet for him, only to testify against him; to the publisher of the National Enquirer, David Pecker, who had long buried salacious material about him, only to accept an immunity deal from federal prosecutors to blab about him; to the Trump Organization’s chief financial officer, Allen Weisselberg, who did the same. Nor will The Don(ald) be remembered for his mafia-style language and focus (“RAT,” “loyalty,” and “flipping”), his familiar references to a mob boss, the way he clings to his personal version of omertà, the Mafia code of silence, or for being “a president at war with the law.”

No, none of that. Let me reiterate: the most powerful point democrats could make is this: 

“No matter what excuses you offer for Trump, what’s clear from his own shouts is that he’s been ‘betrayed’ by more appointees than all other presidents, combined. 

"Aside from the merits of any case, what’s proved is that this man is a crappy judge of character.”

Englehardt’s long list of things Trump won’t be remembered for is – of course -- stylistically and intentionally disingenuous. It is a stunningly well-calibrated list that each of you can use as ammo to convert one (that’s your assignment) RASR or Residually Adult-Sane Republican. But the author has his top priority…

…it is the fate of our children in a world semi-permanently wracked by the consequences of human-wrought climate change. And yes, Mr. Englehardt is on-target about that – our kids will hunt down Rupert Murdoch and his shills, for what they’ve done to us. So read his missive. And get mad enough to get active.

Still, I disagree about the “worst thing.” Two Scoops still has a chance to do something that outshadows even environmental neglect. And I bet he’s trying hard to make it happen.

War.

== Lysistrata redux ==

All polls show a plummet in support for both President Trump and the GOP, especially in the Midwest and in the suburbs – leading to a likely surge in desperate cheating, across the next 8 weeks. So encourage anyone you know in an important swing district to volunteer for poll watching, and you can help with get-out-the-vote.

The biggest topic in polling is a massive gender gap. Men approve of  Trump by 50 percent-to-42 percent. But women disapprove 62 percent-to-28. In 2016 Trump won 41 percent of women. "This is an election about gender," said the Marist Institute for Public Opinion, though party identification and race are still major factors. 

Which leads us to a potential maneuver and ingredient that might decide the fate of America and the planet.  

Beer. On election Tuesday, wives and sweethearts across the U.S. should vote early, then bring home sixpacks of his favorite. Offer slippers. Put a game on TV with lots of munchies. Put on something alluring. For the good of the republic. 

There’s a downside?