Patterico's Pontifications

12/1/2017

Lawsplainer: The California Homicide Statutes Relevant to the Steinle Murder Case

Filed under: General — Patterico @ 7:22 am

Hey Patterico!

Yes?

I have some questions about the Kate Steinle murder case.

Go away. Ken White from Popehat has a patent on the cutesy device of having an annoying interlocutor introduce a lawsplainer.

Are you sure you don’t mean a copyright? I thought a patent applied to —

I said GO AWAY.

Fine. Ken is more fun than you anyway.

I’m seeing a lot of confusion online about homicide laws in California and how they might have applied to the case of Jose Ines Garcia Zarate, who was acquitted of murdering Kate Steinle. I’m not an expert on the facts of the Zarate murder case, but I know a little something about the law of murder, and I thought it might be helpful to the debate to put some of the concepts into basic English. (As always, I speak as a private citizen, and not for my office.)

This is hardly a comprehensive discussion of the law of homicide. It’s just an effort to clear up some confusion as it relates to this case. Also: I am not a criminal defense lawyer, and I am not your lawyer. This is not legal advice on how to kill someone and get away with it, or indeed on any topic at all. It’s just a discussion of legal principles as applied to a case of public interest.

Probably the first thing to explain here is that this was not a “felony murder” case. The term “felony murder” does not mean “any killing that occurs when the defendant is committing any felony.” So the fact that Zarate was committing the crime of “felon in possession of a firearm” does not make this homicide a murder, simply because it occurred in the course of that felony.

I could spend a lot of time explaining the ins and outs of felony murder, but that would be pointless because, again, this is not a felony murder case. Plus, felony murder law is very complicated, with a lot of subtleties and rules. All you need to know is that it has nothing to do with this case.

I see some people complaining about prosecutors “charging first-degree murder” in the Zarate case. In California, prosecutors don’t “charge” first-degree or second-degree murder. The charging document reads simply “murder.” The judge will instruct on first-degree and/or second-degree murder and/or lesser included offenses of manslaughter, based on the evidence presented in the case, and how that evidence fits the law. None of these lesser included offenses have to be charged for the jury to consider them.

When I try a murder case (and I have tried about thirty-five of them), with rare exceptions (like a felony-murder case, which this is not; see above) I typically start by explaining what second-degree murder is. Murder does not necessarily require an intent to kill. It is an unlawful killing of a human being with “malice aforethought.” This state of mind could be intent to kill, but it could also be intentionally committing an act, the natural and probable consequence of which is dangerous to human life, with knowledge that the act is dangerous to human life, and with conscious disregard for human life.

That sounds like a lot of legal mumbo-jumbo, so let’s make it simple: if I stab you in the neck, or point a loaded gun at you and deliberately pull the trigger, I know I could easily kill you. But what if I’m not trying to kill you? What if I just don’t care? Too bad. It’s still murder: namely, murder of the second degree.

You need something extra to get to first-degree murder. Usually, this is accomplished by proof that the murder was “willful, deliberate, and premeditated.” Here, unlike second-degree murder, you do have to have an intent to kill — “I don’t care if the victim dies” doesn’t cut it. You also have to make the decision to kill before acting, and do some amount of weighing the decision beforehand.

If Zarate had pointed a gun at Kate Steinle and willfully pulled the trigger, knowing that act could kill her, he would have been guilty of at least second-degree murder. If he had intended to kill her and acted with premeditation and deliberation, he would have been guilty of first-degree murder. The jury clearly didn’t buy either scenario, which (as Sarah Rumpf explained earlier) is hardly shocking, given that the single fatal shot ricocheted off of the ground, and the interview of the defendant did not clearly establish that he pulled the trigger (as opposed to discharging the gun accidentally).

But what about this idea that he was negligent? This is what seems to outrage people: surely this was at least criminally negligent homicide!

Here’s the thing, though: “criminally negligent homicide” does not mean “the defendant was negligent, and hey, somebody died which makes it a crime, therefore, he was criminally negligent.” That’s not how it works. There are definitions that apply.

In California, when you talk about “criminally negligent homicide” you’re talking about a crime called “involuntary manslaughter.” It’s the crime that Michael Jackson’s doctor was charged with, for administering a fatal dose of propofol. The crime requires that the defendant do a crime, or a lawful act in an unlawful manner, that caused someone’s death, with criminal negligence.

So what is criminal negligence in California? The instructions that a judge reads to jurors say, in part:

Criminal negligence involves more than ordinary carelessness, inattention, or mistake in judgment. A person acts with criminal negligence when:

1. He or she acts in a reckless way that creates a high risk of death or great bodily injury;

AND

2. A reasonable person would have known that acting in that way would create such a risk.

In other words, a person acts with criminal negligence when the way he or she acts is so different from the way an ordinarily careful person would act in the same situation that his or her act amounts to disregard for human life or indifference to the consequences of that act.

I have added some hopefully helpful bold type here. But hopefully the distinction is clear. On one hand, you have ordinary carelessness or an accident. This is not criminal. On the other hand, you have recklessness that is so different from usual care that the person is essentially indifferent to human life. That’s what rises to the level of criminal negligence. Put another way: criminal negligence is not just any negligence that results in death. It’s a reasonably high standard, as befits a criminal statute that carries prison time as a consequence for its violation.

Merely picking up a gun and having it accidentally go off is unlikely to be found to be criminally negligent. Waving it around or brandishing it is closer to the type of behavior that this crime targets.

Again, the jury looked at the factors in the Zarate case, including the fact that the weapon involved is prone to accidental discharge, the ricochet off the ground, and the ambiguous nature of the admissions made in Zarate’s interview. Based on those factors and others, they decided that Zarate’s actions were not so egregious to amount to indifference to human life. They may have thought it was an accident, and/or that he was careless but not reckless.

Was that irrational? I didn’t see the trial, but based on the publicly known facts, I can’t say that it necessarily was. This is not like the OJ case, where evidence of murder is overwhelming and clear. This was a tough case.

The other complaint I see is criticism of the prosecutors for overreaching. With a single shot bouncing off the ground, premeditation is a stretch, and they may have cost themselves some credibility with an overly aggressive theory of premeditation. But again, I didn’t see the trial, and I know how easy it is to second-guess prosecutorial tactics from the outside. My gut tells me that prosecutors were handed a flawed case with a bad interview. Once the defendant has a lawyer appointed, deficiencies in the interview will never be clarified. I’m reluctant to play armchair quarterback from the comfort of my living room.

There’s plenty to be angry about here. San Francisco’s self-righteous sanctuary city policy clearly cost Kate Steinle her life. The man who handled the gun that shot her had no business being on the streets of San Francisco. He should have been deported, yet again. But thanks to leftist lawmakers, he wasn’t, and a beautiful young woman died as a result.

But that fact alone does not make this verdict wrong. Once you understand the law, it’s easy to see that the verdict may well have been correct.

The only undeniable crime here was committed by San Francisco leftist policymakers. If anyone needs to be held accountable now, it’s them.

UPDATE: If you’re looking for a ray of hope from the criminal justice system, this may be it:

[Cross-posted at RedState and The Jury Talks Back.]

11/30/2017

Kate Steinle’s Killer Acquitted

Filed under: General — Patterico @ 6:42 pm

I didn’t see the trial, so I don’t know if the verdict was rational or irrational. However, only in the last few days did I learn some facts that made it sound like a tough case. It was a single ricochet shot off pavement. The interview was poorly conducted and failed to clearly establish that he pulled the trigger, due to a translation issue. I am not shocked by the verdict and it may be right.

Fortunately, a bunch of Internet randos are going to become instant experts on California murder law. It’s already happening on Twitter. Hip hip hooray.

Roy Moore and The Federalist

Filed under: General — Patterico @ 8:32 am

The post is at RedState.

[Cross-posted at The Jury Talks Back.]

11/29/2017

NBC: Matt Lauer Out, Facing Allegations Of Sexual Misconduct

Filed under: General — Dana @ 3:06 pm

[guest post by Dana]

NBC, which recently passed on Ronan Farrow’s blockbuster Harvey Weinstein scoop, announced that Matt Lauer, co-host of NBC’s “Today,” was fired as a result of allegations of sexual misconduct:

On Wednesday, NBC announced that Lauer was fired from “Today.” It was a stunning move for a co-host who was widely considered the crown jewel of the network’s news division, with a $25 million annual salary. The cause of his dismissal, according to sources, was a detailed complaint from another current NBC employee about inappropriate sexual conduct from Lauer that started on a trip at the Sochi Olympics in 2014 and continued for several months.

The employee met with human resources at NBC on Monday night. In a statement, NBC News Chairman Andy Lack called this the first complaint about his behavior in over 20 years and acknowledged that it may not be the last: “We were also presented with reason to believe that this may not have been an isolated incident,” Lack said.

Lauer’s misbheavor was indeed, not just limited to the Sochi Olympics:

As the co-host of NBC’s “Today,” Matt Lauer once gave a colleague a sex toy as a present. It included an explicit note about how he wanted to use it on her, which left her mortified.

On another day, he summoned a different female employee to his office, and then dropped his pants, showing her his penis. After the employee declined to do anything, visibly shaken, he reprimanded her for not engaging in a sexual act.

He would sometimes quiz female producers about who they’d slept with, offering to trade names. And he loved to engage in a crass quiz game with men and women in the office: “f—, marry, or kill,” in which he would identify the female co-hosts that he’d most like to sleep with.

These accounts of Lauer’s behavior at NBC are the result of a two-month investigation by Variety, with dozens of interviews with current and former staffers. Variety has talked to three women who identified themselves as victims of sexual harassment by Lauer, and their stories have been corroborated by friends or colleagues that they told at the time. They have asked for now to remain unnamed, fearing professional repercussions.

Because Lauer maintained a carefully constructed “good guy” public persona, coupled with being an easily recognized face, interactions were limited to employees “in his stable”:

Despite being married, Lauer was fixated on women, especially their bodies and looks, according to more than 10 accounts from current and former employees. He was known for making lewd comments verbally or over text messages. He once made a suggestive reference to a colleague’s performance in bed and compared it to how she was able to complete her job, according to witnesses to the exchange. For Lauer, work and sex were intertwined.

“There were a lot of consensual relationships, but that’s still a problem because of the power he held,” says a former producer who knew first-hand of these encounters. “He couldn’t sleep around town with celebrities or on the road with random people, because he’s Matt Lauer and he’s married. So he’d have to do it within his stable, where he exerted power, and he knew people wouldn’t ever complain.”

And most creepily of all:

His office was in a secluded space, and he had a button under his desk that allowed him to lock his door from the inside without getting up. This afforded him the assurance of privacy. It allowed him to welcome female employees and initiate inappropriate contact while knowing nobody could walk in on him, according to two women who were sexually harassed by Lauer.

Apparently NBC knew, to some degree, of Lauer’s misconduct but allegedly chose to protect their $25 million per year investment:

Lauer’s conduct was not a secret among other employees at “Today,” numerous sources say. At least one of the anchors would gossip about stories she had heard, spreading them among the staff. “Management sucks there,” says a former reporter, who asked not to be identified, speaking about executives who previously worked at the show. “They protected the s— out of Matt Lauer.”

Most ironically, Lauer took Bill O’Reilly to task last year about his bad behavior, exhorting the fallen O’Reilly to “think about how intimidating” it was for women to file their complaints against the biggest star at the network:

In September, Lauer asked Fox News star anchor Bill O’Reilly if he’d ever sent lewd text messages to colleagues. “Think about those … women and what they did,” Lauer said. “They came forward and filed complaints against the biggest star at the network they worked at. Think about how intimidating that must have been. Doesn’t that tell you how strongly they felt about you?”

This, unbelievably, from one of the biggest stars at NBC, who dropped his pants and showed his penis to a female employee. In his secluded office that had a secret lock concealed under his desk to lock the door. And then actually took the employee to task for not sexually engaging with him.

(Cross-posted at The Jury Talks Back.)

–Dana

Congressional Black Caucus Member: Elected Officials Are A Protected And Entitled Class

Filed under: General — Dana @ 1:36 pm

[guess post by Dana]

It is being reported that some members of the Congressional Black Caucus are encouraging Democratic Rep. John Conyers to resign in light of recent revelations about sexual misconduct allegations and a taxpayer-funded payout made to an alleged victim. However, according to one staffer’s comments, the priority seems to be more about protecting Conyer’s legacy than anything else.

This morning, Rep. James Clyburn (D-S.C.) demonstrated a staggering level of tone-deaf arrogance when he revealed his belief that the standards of accountability for an elected official caught up in sexual misconduct allegations should be less than those from private industry facing similar circumstances. The stunning revelation happened when Clyburn and the chairman of the Congressional Black Caucus, Cedric Richmond (D-La.) were confronted by reporters who questioned the different standards, citing those in the entertainment industry who have lost their jobs as a result of sexual misconduct scandals:

“Other men in other industries have faced similar accusations, and have gotten out of the way – resigned, stepped down far faster than he has,” a reporter said in the video, referring to Rep. John Conyers Jr. (D-Mich.).

“I don’t know, you would have to give me some examples,” Richmond responded.

“Harvey Weinstein, Charlie Rose, Matt Lauer,” reporters said.

“Who elected them?” Clyburn said before getting on an elevator. The doors closed before he clarified the remark.

That’s right. Politicians are elected, therefore they shouldn’t be held to the same standards as anyone else. They are a protected and privileged class of elites that should be handled with kid gloves. Call me crazy, but in my world, I expect them to be held to an even higher standard of accountability, given that they are elected by the people, as well as their salaries being paid by the people. Clyburn’s smug conceit adds clarity to why Congress is so loathed by the vast majority of Americans.

This morning’s revelation is also unsurprising given that last week, when the allegations against John Conyers were made public, Clyburn initially said that “Sexual harassment is a very serious matter and cannot be tolerated,” but immediately followed that by expressing doubts about the accusers.

I maintain that the danger of these politicians is, not only do they believe themselves to be in a class above the rest of us, they do so because they have learned that they can get away with their bad behavior, including that of sexual impropriety toward subordinates and staffers. They’ve done so for decades because the established system has allowed them to. And in spite of all the current demands to overhaul sexual harassment policies in Congress, when the terms “icon” and “legacy” are being used by powerful Democrats to shield a member facing serious allegations, I don’t think an overhaul of this built-in “perk” that comes with being a member of Congress will actually include any teeth.

(Cross-posted at The Jury Talks Back.)

–Dana

The RedState Fact Checker™ on Mike Pence’s Employment Claims

Filed under: General — Patterico @ 9:30 am

Today I am introducing the RedState Fact Checker™:* a recurring feature in which I fact-check claims that have been dealt with poorly by Big Media Fact Checkers. Today we analyze a claim by Vice President Mike Pence on job numbers.

Claim:

“There are more Americans working today than ever before in American history.” — Vice President Pence, remarks during a speech at the Tax Foundation, Nov. 16, 2017

The Facts

Indeed, there are more Americans working today than ever before in American history. Therefore, the claim is:

True.

**END FACT CHECK**

Nice job, everyone! Go grab yourselves a well-earned beer.

Today, the Washington Post Fact Checker analyzes the same claim, states that it is literally true — saying (and I quote): “Of course there are more Americans working” — and then proceeds to give the claim three Pinocchios.

Why? Because, they say, it is misleading.

This is the problem with fact checkers who dive into the realm of opinion. Is the statement misleading? Yeah, probably. As the article argues, the fact cited by Pence is a reflection of the growing population. The number of Americans working tends to go up because the population rises. That doesn’t automatically make the employment picture a pretty one. Obama could have made the same claim, they say, but didn’t. And, now that Obama is safely out of office, Big Media all of a sudden has discovered the labor force participation rate — something many of us cited, and continue to cite, when Big Media cites the largely meaningless “unemployment” number that ignores people who have given up looking for work. And that rate is still pretty poor. Just like it was under Obama.

But you don’t give “Pinocchios” to a fact that is true because you believe it is misleading. That is a political judgment. And (someone should try explaining this to the fact checkers sometime) checking facts is not about exercising political judgment about whether a political argument is sound. It is about fact checking. That’s why the WaPo’s feature is called the “Fact Checker” and not the “Analyzer of Whether We Agree With Certain Political Claims.”

And frankly, whether a political claim is misleading is sometimes less clear than others. Let’s illustrate this by looking at some examples from the past.

Carly Fiorina said she went from “secretary to CEO.” The Washington Post fact checkers noted she had “worked briefly as a secretary” and was later a CEO. Meaning she said she had been a secretary and a CEO, and she had been a secretary and a CEO. What did they give her for her statement? Three Pinocchios.

Ted Cruz once made this claim: “On tax reform, we, right now, have more words in the IRS code than there are in the Bible — not a one of them as good.” The Washington Post Fact Checker determined that the literally translated King James Version of the Bible contains just over 800,000 words, while there were as many as 3.7 million individual words in the IRS tax code at the time. In other words, Cruz’s claim was true. Did they declare Cruz’s fact to be true, dust off their hands, and go celebrate their fact-checking job with high-fives and a cocktail? No. They refused to declare the fact true, instead launching into a long (and misplaced) argument that the true fact was somehow meaningless.

In their political judgment.

“Fact” checkers do this all the time, and the WaPo version is one of the worst. But never fear: as long as I live and breathe, there will always be the RedState Fact Checker™, to make the obvious calls that Big Media is too partisan to make.

*Previously the Patterico Fact Checker™.

[Cross-posted at RedState and The Jury Talks Back.]

11/28/2017

Gateway Pundit Blogger Arrested at UConn Speech After Altercation

Filed under: General — Patterico @ 9:30 pm

Protests of conservatives at college campuses have gotten out of control lately. But speakers should know better than to respond with violence. Such tactics are the province of the left, and should stay that way. Unfortunately, a Gateway Pundit reporter apparently has yet to learn that lesson. The Daily Beast reports:

Lucian Wintrich, a White House reporter for the far-right site Gateway Pundit, was arrested during a speech at the University of Connecticut on Tuesday evening after a physical altercation with a female attendee. Multiple videos of the event show Wintrich grabbing the woman from behind after she took his written notes from the podium during a pause in the event, which drew large protests.

Here is some of the video of the incident:

This angle shows the woman taking Wintrich’s notes:

Ben Shapiro, no stranger to violent disruptions and protests at his speeches, had these thoughts:

1. Stealing people’s notes is dumb and bad.

2. This is a NUTS response to someone stealing your notes.

Agreed and agreed. But a NUTS response is what you would expect from someone associated with that garbage Web site.

[Cross-posted at RedState and The Jury Talks Back.]

Revealed: Female Journalists Enabled John Conyers For Years, Another Former Staffer Accuses Him Of Inappropriate Behavior

Filed under: General — Dana @ 9:01 am

[guest post by Dana]

On Sunday, Rep. John Conyers (D) stepped down from his leadership role on the House Judiciary Committee due to an ethics investigation being launched into allegations of sexual harassment, as well as using taxpayer dollars in a $27,000 payout to the former staffer. This morning, another former female staffer has come out and made allegations against the Democratic “icon”:

A former staffer of U.S. Rep. John Conyers said the veteran lawmaker made unwanted sexual advances toward her, including inappropriate touching, adding to allegations by other unnamed former employees that have prompted a congressional investigation.

Deanna Maher, who worked for him from 1997 to 2005, told The Detroit News that the Detroit Democrat made unwanted advances toward her three times.

I didn’t have a room, and he had me put in his hotel suite,” said Maher, 77, adding that she rejected his offer to share his room at the Grand Hyatt in Washington and have sex.

The other incidents with the now 88-year-old Conyers involved unwanted touching in a car in 1998 and another unwanted touching of her legs under her dress in 1999, she said.

When questioned as to why she didn’t report Conyers at the time, and in fact, kept working for him, Maher claimed:

“I needed to earn a living, and I was 57. How many people are going to hire you at that age?” she said.

“I didn’t report the harassment because it was clear nobody wanted to take it seriously,” she said. “John Conyers is a powerful man in Washington, and nobody wanted to cross him.”

However, Maher told reporter Joel Thurtell, of the Detroit Free Press, about the incidents at the time but was afraid to go on the record with her claims:

“She told me about the sexual harassment claims, but at the time she didn’t feel confident she wouldn’t be hung out to dry and retaliated against,” said Thurtell, who left the Free Press in 2007 and runs a blog, “Joel on the Road.”

“So there was no way I could report it. I spoke with her last week, and she said she just didn’t feel comfortable at the time going on the record with the allegations.”

Apparently Conyers’ bad behavior toward women was another one of those open secrets we keep hearing about. Except that this time, it was an open secret among female news journalists, as Cokie Roberts explained during a Sunday “powerhouse” round-table segment with Martha Raddatz:

Don’t get in the elevator with him, you know, and the whole every female in the press corps knew that, right, don’t get in elevator with him. Now people are saying it out loud. And I think that does make a difference.

It’s not surprising that Roberts didn’t say anything sooner about Conyers, given her consistent defense of Bill Clinton against his accusers. It’s laughable to see yet another powerful Democratic woman, whose professional occupation happens to be that of journalist, choose to remain silent for who knows how many years and enable the bad behavior of a powerful lawmaker. One could easily assume every female in the press corps remained silent about Conyers, at least publicly, because advancing their careers took priority over protecting female subordinates and staffers in Conyers’ office and publicly exposing the dirty secret of rampant sexual misconduct in the halls of Congress. If they spoke out publicly about Conyers (and who knows who else), they risked being blackballed by him and by extension, any other Congressmen behaving badly. That was a risk they were likely unwilling to take. It also stands to reason that in order for every female in the press corps to collectively know that it wasn’t wise to get into an elevator with Conyers, something had to have happened in the first place to alert them to the potential danger. What was that, and to whom did it happen?

For the side of the aisle that, for decades, has smugly claimed to be the champion of women, it becomes yet again too obvious what a sham that claim is, based on the inaction of Nancy Pelosi and Cokie Roberts. And when every female in the press corps who have a unique platform from which to speak, are revealed to have enabled and protected a powerful, badly behaving lawmaker, then the gig is up.

(Cross-posted at The Jury Talks Back.)

–Dana

James O’Keefe Confirms WaPo Thoroughly Investigating Roy Moore Accusers

Filed under: General — Patterico @ 7:29 am

James O’Keefe sent an undercover operative to the WaPo with a phony story about being victimized by Roy Moore. He hoped they would publish the unverified garbage, he would get some quotes about their bias, and he could demolish their sloppiness.

Instead, they did an excellent job of investigating and caught the plant.

A woman who falsely claimed to The Washington Post that Roy Moore, the Republican U.S. Senate candidate in Alabama, impregnated her as a teenager appears to work with an organization that uses deceptive tactics to secretly record conversations in an effort to embarrass its targets.

In a series of interviews over two weeks, the woman shared a dramatic story about an alleged sexual relationship with Moore in 1992 that led to an abortion when she was 15. During the interviews, she repeatedly pressed Post reporters to give their opinions on the effects that her claims could have on Moore’s candidacy if she went public.

The Post did not publish an article based on her unsubstantiated account. When Post reporters confronted her with inconsistencies in her story and an Internet posting that raised doubts about her motivations, she insisted that she was not working with any organization that targets journalists.

But on Monday morning, Post reporters saw her walking into the New York offices of Project Veritas, an organization that targets the mainstream news media and left-leaning groups. The organization sets up undercover “stings” that involve using false cover stories and covert video recordings meant to expose what the group says is media bias.

Which means O’Keefe essentially verified that they are doing their jobs well.

This happened before, when Breitbart.com re-reported the Leigh Corfman story and confirmed that she came forward only reluctantly.

The #FAKENEWSBEZOSPOST is coming out of all of this looking pretty good. As are the accusations against Moore — to anyone willing to look at the whole picture.

He’ll still win.

[Cross-posted at The Jury Talks Back.]

11/27/2017

Trump’s Plan For Supporting Roy Moore

Filed under: General — Patterico @ 9:00 am

Donald Trump has a problem. There’s a special election in Alabama. The Republican would preserve a slim 52-vote majority for him in the Senate. But that Republican has taken a hit in most polls due to recently revealed scandals. What to do?

At The Daily Beast, Lachlan Markay has a piece that suggests the answer: Trump’s Plan For Alabama: Back Roy Moore Without Mentioning His Name:

Trump captured that dynamic in a series of Sunday morning tweets that effectively endorsed Moore’s candidacy without mentioning his name.

“I endorsed [incumbent Sen.] Luther Strange in the Alabama Primary. He shot way up in the polls but it wasn’t enough,” Trump wrongly claimed. “Can’t let Schumer/Pelosi win this race. Liberal Jones would be BAD!” he added, referring to Doug Jones, the Democratic candidate in the race.

Backing Moore without mentioning him has become the Trump White House’s default position when pressed on the allegations against the former state Supreme Court justice. After declaring in the wake of the allegations against Moore “that there is no Senate seat worth more than a child,” White House counselor Kellyanne Conway suddenly shifted her tone last week, focusing solely on opposition to Jones and avoiding any affirmative defense of his opponent.

“We want the votes in the Senate to get this tax bill through,” Conway told Fox and Friends last week. Jones “will be a vote against tax cuts. He is weak on crime. Weak on borders. He is strong on raising your taxes. He is terrible for property owners,” she insisted. Asked whether that amounted to a Moore endorsement, Conway would only say: “I’m telling you that we want the votes in the Senate to get this tax bill through.”

As an aside: the tax bill is garbage. It does nothing to cut the deficit at a time of a $20 trillion debt. But Conway’s quotes seem in line with the Trump strategy of backing Moore mainly by concentrating on how bad the Democrat would be.

Frankly, it’s his best option and the one that worked for him. There’s no real need to rally the Moore faithful; they’re with him no matter what. For everybody else, the optimal stategy is clear: otherize someone who is very easy to otherize, and remove the focus from the flawed person carrying the Republican banner.

Did I say flawed person? Why yes, I did. Let me back that up, and start by not mentioning the seduction of teenagers.

I have laid out the case against Moore before, here. I quoted a 2004 post from BeldarBlog, which quoted Bill Pryor’s speech on the need to protect the rule of law by removing Roy Moore from the Alabama Supreme Court:

The stakes here are high, because this case raises a fundamental question. What does it mean to have a government of laws and not of men? …. Because Chief Justice Roy Moore, despite his special responsibility as the highest judicial officer of our state, placed himself above the law, by refusing to abide by a final injunction entered against him, and by urging the public through the news media to support him, and because he is totally unrepentant, this court regrettably must remove Roy Moore from the office of Chief Justice of Alabama. The rule of law upon which our freedom depends, whether a judge, a police officer, or a citizen, demands no less.

My previous post further noted:

Most recently, Moore suggested that 9/11 might have been a punishment for the United States rejecting God. He has also said “maybe Putin is right” given Putin’s rejection of gay marriage — adding this about Putin: “Maybe he’s more akin to me than I know.”

All that is before you get to the fact that Moore has been credibly accused of being a creeper who regularly sought out young teenagers for sex — some as young as 14. Will Saletan argues: “The idea that all these girls, their mothers, their sisters, and their friends began coordinating a massive lie decades ago—and somehow conspired to keep it quiet through Moore’s many previous political campaigns, saving it for a special Senate election in 2017—is completely preposterous.” Despite fever swampers raising allegations of bribery first advanced by discredited Twitter accounts, there has never been a convincing explanation as to how so many people got together so long ago to defeat a years-into-the-future Senate bid.

And on the other hand you have Doug Jones, who loves him some federal funding for abortion — and seems to believe in his heart of hearts that late-term abortion is A-OK, even though he has backtracked to the standard “keep the laws as they are” position.

In other words, it’s the guy with the repulsively flawed character and lack of respect for the rule of law who will probably mostly vote the way we like, against the candidate with the repulsive policy views who will vote with the other side time and time again.

Sound familiar?

I don’t envy the people of the state of Alabama their choice, just like I didn’t envy the choice faced by the American people in 2016. I remain confident as ever that Alabama will make a choice similar to the one they made then, and won’t look back.

And somehow, with the hyper-partisanship on display from Democrats supporting Al Franken and John Conyers, capped by Nancy Pelosi’s virtuoso partisan demonstration over the weekend, I think Alabamans be able to cast that vote without too much shame. The thing about hyper-partisanship is that when you engage in it, the other side feels content to do a lot of things that might normally shame them. And that’s a relief for Republicans, because unlike Democrats — who have seated Killin’ Ted Kennedy and a guy who was impeached for bribery, all without a second thought — Republicans are still sometimes capable of feeling shame for backing a moral reprobate. Donald Trump is helping them get over it, but the pangs are still there for some. So the spectacle of hyper-partisanship from the Democrats is a soothing balm for the conscience, and should propel Moore to what I continue to expect will be a victory on December 12.

[Cross-posted at RedState and The Jury Talks Back.]

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