The Rubicon

 Alea iacta est

In the Democrat/ Republican blame game over the shutdown, the Democrats find themselves in what is essentially the spoiler and seemingly undemocratic position of refusing to sign off on the budget.  As nuanced as this issue is, for those of us troubled about the current Catch-22 state of things, we can't help but wistfully revisit some things in the immediate past that, like Aristotle's analogy of all events as just points in the arc of an arrow, further feed our chronic heartburn.

Our heroes share some complicity. 

Ruth Ginsburg hung on too long. So, too, Biden. Hubris has had its cost. As a result, we ended up with a Supreme Court that is collaborationist. When Sonia Sotomajor and Elena Kagan were nominated, the big debate and vitriol was that they were "activist" liberal judges. Ginsberg's death was followed by the failure to nominate Obama's choice. What followed was obvious to anyone who follows the machinations of government; a Supreme Court with new members that have shown their mettle as ground troops in the Republican culture wars. 

Biden hung on too long. It is their talent that conservatives are able to constantly turn things around. After that horrible debate - their whisper campaign of his incapacity confirmed - he now became the object of their bathos. He was portrayed as the hapless victim of a feckless party who ultimately abandoned him and used an unfair and antidemocratic procedure to nominate Harris. 

I blame Harris for abandoning the ship. She had an integral part of an administration that for four years had successfully undone the Trump administration's damage. It was a record that was not just defensible, it was laudable. Yet, she sold counter-intuitive goods. Her message was essentially defeatist. She distanced herself from Biden while at the same time selling what could only be seen as a generic version of the same. It was an intellectual double bind not lost on an electorate that needed more medicine, not a placebo. 

The perfect storm was the Republicans. You suck. You allowed no one to pass your purity litmus test. No one was shitty enough for you? Not Nikki Haley, Ted Cruz, Mario Rubio or any of the other horsemen? 

And now, having done that twice, you are cowered. You buy into his style of governance that completely abandons the idea of making things work. You not only condone his anarchic rules of engagement, you abet him. 

And that's how we got to this impasse. But "My way or the highway" only works when you have the numbers. The vote requires 60 votes. (You could have changed the rules but you won't.) You knew you could not count on some of your own members. Knowing that, you FUCK YOU, LUMP IT OR LEAVE IT passed a budget that will completely destroy the lives of the most fragile members of our country. Decimating health care for millions of people, millions of poor people, while at the same time passing tax benefits for uber rich is the Rubicon. The position of the Democrats is not the spoiler position, it is a principled rearguard action.

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The Palace of Justice

 The Palace  of Justice

In 1995 I traveled as part of a delegation to Cuba celebrating Mobile and Havana becoming sister cities. As this was a thaw in the Cuban-American relations, we were being hosted like celebrities. 

When I expressed some interest in going to a courthouse, the guide made it happen. The next day as we entered the courthouse the attendant refused me entry. I was in shorts. "He can't come in here. This is the palace of justice." He was very angry at my insolence. The guide argued the counterpoint, that we were some sort of hotshots. The attendant stood firm.

At some point, the Chief Justice of the Cuban Supreme Court came down and arbitrated the situation, siding with powerpolitik. "Let him in," he said. 

He assigned me a chaperone, a young black lady. She showed me the courtroom, explained to me their system,  and eventually we witnessed a trial. It was, I thought, friendly enough. We shared our thoughts on each other's systems. The trial was of a cashier accused of having intentionally left a skylight unlocked so that someone could steal money out of her till. 

My host thought that the woman would be convicted and I blathered on about presumption of innocence, critiquing a system that has professional juries. I was relaxed and unfiltered with her. 

Perhaps too much. At some point I must have betrayed the fact that I thought she was a secretary. "You do understand that I am the second highest ranking judicial officer of the Republic of Cuba?," she told me. I was embarrassed and chagrined. 

She was gracious, accepting my apologies as we passed a pleasant day kibbitzing about the fate of the cashier.

That day is a constant: The attendant at the gate - In this case the literal attendant but euphemistically also the universal attendants of all court systems  - saw his role as a sacred duty, whatever frailties it might have, imagined by me or not; and, I need to be vigilant about the self-inflicted traps of bias, be that about other systems or the stranger in my midst.

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Bad Bunny

About 2 years ago I traveled to Puerto Rico for the funeral of my stepmother. It went as expected, lots of crying and grief, a wake, funeral procession, burial, a couple of days of emotional heavy lifting. 

Afterwards most of us ended up at my sister's house. It was the typical extended family. My sad and morose sisters were sequestered in quiet places throughout the house while the rest of us just tried to endure the pall. 

The adults played the requisite dominoes out on the porch. Music played. My nieces and nephews, many of them here just for this occasion, squatted out on the lawn, catching up with their cousins.

They hijacked the music. My brother and I groussed. We salsa classicists have been at war with what we deem to be modern crap: reggaton, rap, etc. Bad Bunny! It just seemed like the latest perversion. But It was a losing battle. They weren't dilettantes. They sang along to all the songs. It filled them with joy and you couldn't help but think it was a good thing.

I didn't walk away with any appreciation for his music. In fact, still not a big fan. I keep meaning to buy the album and give it a fair shake but I just haven't gotten around to it. 

But in the interim I've been watching his progression as a bona fide Puerto Rican hero, a true ambassador of our culture. And he's done it on his own terms with the utmost levels of professionalism and gentility. I think of him as our Taylor Swift.

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Dear ABC

Dear ABC:

During the early '70s my wife and I moved to Fairhope, Alabama in order to attend college at the University of South Alabama. At some point, I took a break from my studies and got a job at the local weekly, a small town newspaper in a small Southern town that was  right out of Norman Rockwell.  

The Courier was run by a wonderful couple, Ford and Edith Cook and what I learned from them went well beyond learning the mechanics of newspapers and printing.

I was part of a group that published The Rearguard, an underground newspaper in Mobile. If you own a giant web press and publish a newspaper once a week, It makes no sense financially - or even mechanically - to leave it idle. The Courier job-printed other newspapers, ours included.

One day an FBI agent came to the paper investigating us. He wanted to know who published the paper as well as a bunch of other specifics. Mr. Cook, although very conservative himself, was incensed. He told him to get the hell out of his office that he was acting un-American and gave him  a lecture about the First Amendment.

You could learn a lesson or two from this great American.

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Cut to the bone

 As is evident in the constant shifts in the conversation about Kirk's killer, we parse out issues through the prism of beliefs and prejudices. It seems we are now going to return to talking about the shooter's personal life and that somehow his presumed justification for carrying out this terrible act is what we should be talking about. 

Cut to the bone - past the gristle and fat of the shooter's motivation - and face the fact of a senseless killing and our seeming acquiescence to this constant mayhem. I have little confidence that it will bring us out of our coma of indolence. Any meaningful action will be lost in the push and pull and the fact of another senseless killing will be just more dust in the wind. 

"Well, shit, what can we do?" Not much could have been done to stop him from going to a campus with which he was apparently very familiar and using what's probably gramp's hunting weapon. But things can be done to make these events less likely. Kirk's killing has now shared the grief with those who oppose doing anything to curb gun violence in the name of the sanctity of the Second Amendment. It's not a defeat to recognize that something has to change, to give up a bit of your absolutism, to belly up to the bar.

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THE STATE OF OUR POLICE STATE STATE OF MIND:

THE STATE OF OUR POLICE STATE STATE OF MIND:

How Has Law and Order Been Degraded to this Point? 

No president in our lifetime has better exemplified the arrogance of power than Donald Trump. There is no better a perfect metaphor for the state of our police state than a picture of the phalanx of armed men - A Praetorian guard - in front of the Lincoln memorial; unidentified, no name tags, terrifyingly ominous. That image now seems tame compared to the double-down brutishness of Trump 2.0.

But we didn’t get here overnight. 

The problem cannot be blamed solely on one man or one party. He is the symptom, not the disease. We continue to deal with problems in a visceral way and that often leads to disastrous results. We link even mundane things like window tint restrictions with crime or high school graduation with the privilege of driving. We pass domestic violence gun-control laws but refuse to deal with gun control, sex crimes and drug databases, restrict bond, etc. They’re all linked to some government sanction as a solution, perhaps well-meaning but many times leading to some other problems. 

Where Are the Many Points in the Downward Arc? 

It’s always been a balancing act between too much government versus not enough. We over-criminalize and mass incarcerate as if incapacitation were the only solution. We dried up social services and government programs and helped birth a major mental health crisis in mental health that, in turn, placed the problems of draconian overreactions by government in play. 

Of the panoply of moments, of the myriad acid drips that have steadfastly worn away at the firmament of our liberties, the most cataclysmic has been 9/11, or more specifically, our response to it. That day, we crossed the Rubicon. 

Revenge and fear are powerful emotions. The elixir of the two, this deadly potion, yielded the Patriot Act, FISA, Total Information Awareness, and our acquiescence to the spiraling expansion of the police state. The citizenry was no longer presumed innocent. What previously might have been just a routine traffic stop now developed into a full investigation of all of the occupants, secret cameras on the highways, databases, etc. The War on Drugs was now the war on us.

 Can’t Have a Police State Without the Police.

Police are the bulwark of the law and order front line. The job is dangerous and underpaid and they must deal with a citizenry that is pampered and privileged, that has a tendency towards violence, and is potentially heavily armed. Understanding this, the law - and all branches are complicit - had already been accommodating Constitutional proscriptions to the “reality” of their work. 

In the process, over the past forty years, our rights have taken a beating, the guardrails against overreach weakened, and the actors more brazen. In that regard, Trump's fileting of the law into thin gossamer strips is nothing new. He is Alexander’s solution to the Gordian Knot, simplistic, dangerous, and counter-productive.

I became a lawyer in 1986 at just about the time that there was this tectonic shift in the law. That's when the Federal sentencing guidelines took effect. At that point the rights of the accused were on the ropes and being pummeled into near unconsciousness. Many states, including my own, followed suit.

The guidelines were just manifestations of a long-standing evolution and signaled what had been happening in this country for a period of time. It's how we got here, afraid of our police, suspicious of our government, and putting up with things a few decades ago would have sounded improbable.

Here, too, it would be convenient to talk about race and the impact of the guidelines. They have had a disastrous effect on persons of color. That is an important discussion to be had. The guidelines have a tremendous impact on everyone accused of a crime and on the rest of us whose rights are further diminished by these things.

That it has been a disastrous experiment can be seen by the fact that there have been numerous attempts to mitigate their impact - from making mandatory minimums less Draconian, the safety valve, conversion ratios, to most recently, the First Step Act.

Monetizing Justice

    "There's a lot of money in slavery," a client of mine once quipped. He was complaining that he had been housed in a for-profit jail in Florida somewhere and that his rights were now secondary to what some corporation wanted, demanding exorbitant prices for services like telephone calls and commissary. He was right; the exploitation of personal liberties for economic advantage is slavery. Justice delivery is now just another service industry calibrated to maximize those profits. They have monetized justice.

    A few years ago while conferring with an Assistant District Attorney in Baldwin County, I noticed a giant building being constructed. "What is that building?" I asked. It was the new jail. "If the largest building in your town is a jail, you're doing something wrong," I told her. They are now constructing an even bigger addition and it's being done on the backs of penalties, fines, programs, video and phone kiosks, and rents paid by the federal government to warehouse prisoners. 

    When you go to court - and every court systems I have ever been in is the same now - you will face the issue of pre-trial detention or be forced to pay for a cafeteria plan of costly services (court referral officers, specialized courts, leg monitors, traffic school, color codes, etc.), all leveraged by your liberty interest. 

    The police, also, are part of that gravy train. Not only do government funds flow to police departments, they get to play GI Joe with sophisticated weapons not meant for the civilian population (tanks, sonic weapons, heat-ray devices). Given the new reality, there is infinitely less accountability for the "Warrior Cop" and the folks who ostensibly oversee them. Things like tort reforms that shield municipalities and states from being sued, the evisceration of the EEOC, and Supreme Court rulings providing cover for police brutality have led us to the point that tactics reserved for enemy combatants (e.g. snipers?) are more likely a norm.

Race

Persons accused of crime are a constituency without representation. In any policy debate or judicial decision, severity is usually the wiser course. The law, this hammer, often peens most harshly along racial lines. Race is an enticing topic, the moth to the flames. Not to diminish its importance but let us also look beyond it. Racism is The dark crusty scab on an ugly wound. Yes, it  exacerbates the problem of disparate treatment and the use of the most oppressive mechanism available, governmental action. 

"Race", however, distracts us from talking about the underlying roots of what is essentially universal oppression. "Black Lives Matter" is countered by those that say that "All Lives Matter" and they're both right, they are not exclusive or contradictory terms. Let's recognize that race is a very important topic but also that it's a veneer and in many ways a barrier that keeps us from looking at many of the underlying causes of the problem. Lurking underneath is the loss of our freedom in general and the transformation of a society that was essentially libertarian to one of a burgeoning police state. I don't know where we're going but I know where we've been. We need to get back there and that requires more than hand wringing.

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Shooting bullets into the hull of the boat

 Shooting bullets into the hull of the boat

As one of our district's Spanish-speaking attorneys, other than the U.S. Attorney that prosecutes most of these cases, I have probably handled more Maritime Drug Law Enforcement Act (MDLEA) cases than anyone. The first one of these cases began with my surprise that we could pluck somebody out of the ocean somewhere very far away, someone who is not in route to the United States, and proclaim that we have jurisdiction over them to enforce drug laws. "Surely, that can't be right. Is it?"    

        Over the last decade or so we criminal defense lawyers have litigated that issue - and everything else, from jurisdiction, law of the seas, standing, venue, economic zones, territorial boundaries, archipelagic boundaries, etc. - and each time we have arrived at the point that the United States is pretty much like the Roman Empire, it can roam all over the high seas and do whatever it wants. We reached that point through a process that I'm not real comfortable with, but at least it was a process.  

Imposing a capital punishment on the 11 lives in the boat sunk last week off the coast of Venezuela was a crime. It was, in the immediate sense a crime against them, but on a larger plane it's part of the serial crimes being waged against the  United States by a crew of hooligans obeying the fantasies of an infantile wannabe who along with his posse are channeling "there's a new sheriff in town" behavior out of something akin to a Tom Clancy novel. Forget niceties such as civility, we're now at the point we've abandoned any pretense that we're going to follow laws, even a law as ridiculous as the MDLEA. 

Without getting too far into the weeds, here's what the MDLEA does and what, at a minimum, due process it affords. Here's a daisy chain of MDLEA bullet points and what it prohibits: certain acts on board a "covered vessel" (a covered vessel is a vessel subject to the jurisdiction of the United States); "Subject to the jurisdiction of the United States" includes a vessel registered to a foreign nation (if that nation consents or waives objection to the enforcement of the United States laws); or, a vessel without a flag (and therefore a vessel without jurisdiction). 

Before reaching that point, though, requires probable cause, a reasonable suspicion that the vessel is engaged in illegal activity. As to this boat, it has four engines on it, so that immediately would raise suspicion. Eleven people on the boat, that's a bit much. I Can't get a good shot of the interior of the boat, but the crews on on these boats usually have a maximum if six people. Were there photos of oil (fuel) drums, packages, etc.? (They may have been on its way to the mothership. If so, that makes this - leaving aside the inhumanity part - suspect that it has little to do with anything but theater. 

To insure the principle of freedom of the seas, international law generally prohibits any country from asserting jurisdiction over foreign vessels on the high seas. The first step would have been for a helicopter to get a cutter in the area. Sometimes the Coast Guard has personnel on foreign (British, Dutch) ships. They will radio the Coast Guard command and then a series of interchanges can happen: does the ship have a flag?; Did you query that country for permission? ("vessel subject to the jurisdiction of the United States" includes a vessel registered to a foreign nation if that nation has consented or waived objection to the enforcement of United States law by the United States. 46 U.S.C.S. § 70502(c)(1)(C)); and, finally, did the Secretary of State's designate certify the response of the foreign nation to the claim of registry . 46 U.S.C.S. § 70502(d)(2))  Here's an interview with the Coast Guard Commander we would usually deal with.  

Once approved, the Coast Guard sets out to stop, investigate, and if necessary, arrest the crew and its contents. This will include videos shot from the convoy helicopter, the Cutter, and the Zodiac boarding crew. Sometimes engine disabling or warning shots will be fired to force compliance. What follows, as befits their military discipline, is an almost-perfectly documented criminal case: videos, Coast Guard crew statements, suspect statements, drug field tests, logs, contemporaneous notes, diagrams, etc. 

Whether or not this was really a drug boat or was just ferrying immigrants (or were part of Tren de Aragua, or whatever scenario they can conjure up) what those of us that do this kind of work know is that these cartels will often impress people sometimes against their will. There may be one or two people that are actually the owners or an integral part of the conspiracy but the crew are mostly just people that have been shanghaied either economically or through force. The cartels need people that are familiar with boats and that's usually hard-scrabble fishermen. They will offer them a large amount of money. Some have been held captive against their wills for months. Some lured out of places like Guatemala or Ecuador with offers of legitimate work and held in a compound in some remote place in Mexico. Families are threatened. The list goes on. 

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Roy Black

"Epstein's lawyer". That's going to be the hook for the news of the passing of Roy Black, penultimate criminal defense attorney.

Before anyone goes down the conspiracy rabbit trail, do know that he was so much more than that. If you're interested, look up his bio but speaking from personal experience Roy Black is one of the many blips of good fortune in my life. 

I graduated from law school in 1986, spent some time in Austin, and came to Mobile in 1987. As I am able to speak Spanish, I started representing federal cases as a  Criminal Justice Act panel attorney.

One of those involved Roy. He represented Dickie Lynn, who was accused of importing 16 tons of cocaine into Alabama.

My client was an offloader who was stupid enough to try his case in federal court. (We won. But that's another story. Read my book if you want to know more.) My job was to stay out of the way and let the big dogs fight. 

I had no idea how far out of my depth I was at the time. But Roy (and the other defense team) handed me a priceless luxury; for 5 weeks I sat there and watched the precision surgery of criminal defense artistry. I even wrote a book about it.

But more than that, I saw up close that you can be the big fish in the biggest pond and not lose your sense of grace or humanity. Roy legitimately cared about the law and his client and he never made me feel like the baby lawyer that I was. He took pleasure in walking around downtown, enjoying things  like the shoeteria, peanut shop, George's Candy store. He was a real person through and through.

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How does he do it?

You are right to be scared.

We are now only 6 months into Trump's presidency and, go figure, things are even crazier.

Looking positively to the future, though, how are we going to explain him when he's gone when even now so much of this makes absolutely no sense?

Politics and policy - at least in the general sense - aside, his reactions reveal the perfect storm; an obviously deeply troubled person, a bumbler, but somehow skating on the brink works for him.

This week's "what now?" moment has been the "Epstein matter". The beat-back he's getting is a problem of his own creation. Karma. But some of the things that he does leads us back to the whole question of how does he get away with what for others would be disastrous?

It's really just minutia, but his response to the "bawdy" tape "Wall Street Journal" story is a great example. We have gone from the "I could shoot someone on 5th avenue" claim, to the Access Hollywood "grab them by the pussy" tape, a disastrous first term, all culminating in an attack on the Capitol during his first term and now, Trump 2.0.

We know that Trump never ducks or covers but how would you catalog some crude drawing and cryptic message about a "secret" among this list of dirty doings? This guy is a convicted felon, been accused of rape and has been fined civilly for sexual misconduct. Who cares if he sent another perv a birthday message with some sort of crude drawing?

The question for me, the thing that brings me back to being puzzled, is why not just say "so what?" and move on? Instead, he engages in denials and things that can easily be proven to be patently false. 

Why does he get yet another pass? The only explanation I can come up with is that deep down inside contrarians fascinate. Like the frontier American Indian shaman who rides his horse backwards and acts in all manner of unexpected ways, he is mesmerizing. To some he just seems like a crazy man but to the others in the tribe he's magic. 

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Disrupting the apple cart

The African proverb that "When the elephants fight the grass gets trampled" has an analogous significance to me as it relates to the topic of tariffs and It's impact on small businesses.

After my brief tenure as a reporter with the Mobile Press Register, I started a local newspaper in the early '70s. Without any significant capital but assisted by my fellow reporters from the paper and other local artists, we rocked along fairly steadily. 

And then, the "great shortage" happened. We were hit with massive inflation and part of that was because of the tariffs that hit newspapers, especially small ones like ours ("readers": free, artsy), especially hard. Because of the costs associated with the recession and, especially, the tariffs placed on Canadian newsprint, we went from being able to publish from 50 to 70,000 runs to just 10,000. 

I borrowed money to keep it afloat but eventually it was too much of a struggle. I sold it and was lucky enough to get hired as a paralegal by legal services where I wore a few hats; public benefits specialist, community organizer, pr, etc. 

I had taken the job, first, because I needed one, and, secondly, because I wanted to see if I was smart enough to be a lawyer. I was happy in my job. I was well-paid, respected, and, most importantly, I was doing some really good things for the community. 

Then, Reagan happened. 

I spent the last year of my legal services tour crying in my office, frustrated at my impotency in helping our clients. On top of everything else that was happening in the country, the "government is bad" folks had plunged everyone, including, the marginally - employed middle class into a crude cold bath. The same folks who had voted for him were now finding the bumpy reality of the gilt-paved welfare Cadillac streets, horrible before, but now almost non-existent.

  

I jumped to law school.

I had been horrified by the actions of the Reagan Juggernaut - and, as a side bar, that includes Iran Contra, October Surprise etc. The impact of their attack on the social welfare system, at that time, I thought to be the height of cruelty and counterproductive. When he left I thought we had passed our darkest moments.  

I was wrong. 

Compared to Trump, Reagan is Eugene Debs. Unlike Reagan, Trump is indiscriminately flailing around trying to make happen his loosey-goosey public policy notions and they center around his fixation on tariffs. Like the kid stealing from the apple cart, he pays no heed to the manner in which things are stacked and is indifferent to the dangerous potentiality of his actions.

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Red Dogging

Red Dogs

 I was 17 when I joined the Air Force in 1964. It didn't take me long to find out that I could go to this place called Vietnam and be paid quite handsomely in return. They were called Red Dogs, a mechanism that hid the fact of the involvement of our troops. (Officially, our troops were in Thailand.) I think my pay was probably $50 a month or maybe every other week, but whatever it was it was a pittance. The Red Dogs paid $16 a day per diem, $100 hazardous duty pay, and TDY pay. I was pretty gung ho and, besides, the picture that was being painted was not one of guerilla warfare but of a tropical paradise where we would be living like kings.

I don't ever see the Red Dogs discussed but I keep things like that and the Gulf of Tonkin resolution constantly in mind when the talking heads make claims, excuses, and explanations for their actions; why they are helpless to do otherwise. The "you made me do this" rationale for the recent unprecedented actions would hold no mettle, especially so coming from this cast of characters. So, also, Israel's Battered Wife defense for the inhumanity it has unleashed in Gaza. . The upside to the discovery of the abuses - Johnson's and Nixon's - is that guardrails developed over time. It may take a repeat of the sort of sacrifices we made back then but when this plays out - and this is me being optimistic - we need to ensure that this behavior cannot be repeated.

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Keep It In the Road

Divagate is like watching political Motocross. On the left there's a big deep drop off that this is somehow a diversionary tactic to keep attention away from the passage of the "Big Beautiful Bill". On the right there's a big mountain of granite, "The Russians" orchestrating a coup (as if they needed anything more than what is already happening) and are somehow in cahoots with The Alt-Right in order to impeach Trump and get Peter Theil's boy in power. 

Even though the Vance Manchurian candidate conspiracy has some constancy, this glosses over what we know about both of these men: they are not deep; they are super ego divas who are so used to getting their way that they lash out whenever something doesn't work out for them; and that somewhere in the White House there's a bunch of professionals actually earning their keep, are cursing under their breath trying to manage yet another fiasco, and planning their next expose once they leave this administration.

Like just about everything that's been happening since January, there's not much we can do about it. Control your breathing. Hands on the wheel, keep it in the road and just enjoy the ride.

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It's Worth Emphasizing Part One

In putting together a collection  of things as a gift to my new daughter-in-law, I ran across two speeches I've given recently that seem - given the latest issues regarding law and order and immigration - worth revisiting.

[My Naturalization Ceremony Speech]

I am honored and humbled to be here 

but I can only guess why I am here

Your stories are probably much more interesting than mine

I’m a Criminal lawyer. The constitutional law I practice is prophylactic not honorific

Yet here I am here today: mid point between your yesterday and your tomorrow. 

Today, you become like me - 

but unlike me you had to work to get here.

Like you, I have an emotional attachment to another country.

And, as opposed to most of the people in this country that take it for granted, I can appreciate that citizenship means opportunity and that a US passport is a metaphor; it allows movement in more ways than one.

In 1898, my grandfather, Mario Mendez-Colon, an eighteen year old native son of the central mountainous region that was the wellspring of the island’s revolt against Spain, would witness the invasion of Puerto Rico by the United States. He was now part of the spoils of war. 

There is no indication that my grandfather was in the least bit political or centered on anything but the survival of his family. 

But his spirit was unquestionably instilled in his offspring. 

Ten years later he would marry. 

They would eventually have thirteen children. 

Three would die of diseases borne of poverty, 

Ten of them would survive; 

some of them would become part of the vast Puerto Rican migration to New York, 

all would remain doggedly proud of their heritage. 

Theirs was a pride borne of an amalgam of years of personal identification melded with political struggle, economic privation coupled with cultural identity.

By 1910, my grandparents, along with their two infant children, were living in Utuado’s barrio Angeles. 

A coffee farmer eking out an existence, Mario and his little family were somewhat better off their peers. 

But a decade later, their situation had worsened. They now had eight kids and he worked as a laborer.

[period encompasses WWI, Depression, and WWII all of which impacted an already poor country]

In another ten years, the family would grow even more so, now to include eleven kids and with no one but Mario working, now growing fruit and in the midst of a depression from which Puerto Ricans fared even worse.

 By 1935, everyone in the family was pitching in;  Mario, a tobacco farmworker.

My grandmother and her oldest daughter worked at home taking in sewing. My twenty five year old uncle worked as a store clerk and the three sons were laborers on a tobacco farm. 

The older children would soon leave. Of the four that remained at home, the two remaining worked in a textile workshop as hand-sewing items that in a 10 hour day might bring $1.50. 

Their world would collapse fully in 1942 with the death of my grandmother but it was the watershed moment that would mark the beginning of their odyssey. 

 In 1944, preceding by only a few months the Allied invasion of Normandy, Celina, one of Mario’s younger daughters, along with her four-month-old infant, boarded a seaplane at Isla Grande Puerto Rico and headed to NY. She would be the tip of the spear. 

Two years later, Vina, his oldest, along with her husband and their teenage daughter, would also leave San Juan for the Big Apple

She was followed by Irma, the youngest daughter; she with a baby forty days old, me. 

They were followed soon thereafter by the wives of two of Mario’s sons who had flown ahead to establish a beachhead. The Mendez siege of New York City had begun. 

They ultimately merged with others they encountered here and - fellow travelers in a hostile world - forged a tightly-knit tribe. 

I did not fully appreciate any of this until my recent excursion into Ancestry.com. 

My family spent almost every weekend with each other and yet these people who were now fully established business owners, professionals - who had wonderful homes where they amply provided for their broods - never truly shared with us their stories - how they worked stringing beads, doing piecemeal sewing jobs, being janitors, migrant agricultural workers, plasterers, cooks, bus boys. Doing what it took. Never looking back.

In putting this together I kept thinking that it was your stories that we should be listening to.

I have had 38 fully productive years as a lawyer - from the trivial and mundane to mega cases. Written two books about some of my cases.

But two cases that fill me most with pride are the two  adoptions that I’ve done. I’m in awe of someone selflessly committing to that level of responsibility, of upping their skin in the game. 

that’s what this kind of feels like to me. Except that it’s a two-way adoption.

I know you appreciate the enormity of what today means to you. 

But please do appreciate what you mean to this country.

What made my family strong is that they worked together to get where they wanted to go. 

We are now part of the same family. 

We sometimes fight and disagree but in that vortex we become stronger. 

(Passport) You can add more metaphors

 more pixels make the picture vibrant, 

strength to the fabric, 

In short, we are stronger in our diversity, now more so, thanks to you

So, on behalf of the Southern District United States, I thank you for coming here and helping us fulfill the promise that this country has always held.

Words cannot express how humbled and appreciative I am to be able to address you today. 

I wish you a fruitful tomorrow.

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It's Worth Emphasizing Part 2

In putting together a collection  of things as a gift to my new daughter-in-law, I ran across two speeches I've given recently that seem - given the latest issues regarding law and order and immigration - worth revisiting.

[My CJA Award]

When he called to tell me about this award, Judge Murray suggested I think about a pivotal moment that shaped my legal career and for the life of me I couldn’t narrow it down to just one aha lawyer moment. There are so many. Over the years I have been involved in just about every major case, have been the nemesis of government agencies, and made a name for myself as a pain. 

I don’t ascribe to the grand design, that things happen necessarily for a reason but I do think that life events and experiences shape you and reform you into your ultimate version.

My pivotal moments don’t start with me becoming a lawyer. I didn’t graduate from law school until I was 40 and how I got there depended on a chain of events. 

• I came to the states when I was 40 days old, lucky to have been born in Puerto Rico as opposed to Honduras; 

• Because I was a “troubled” teenager, my mother took us out of Jersey moved our family back to Puerto Rico; 

• I escaped PR and joined the service at 17; 

• the GI Bill gave me, a two-time high school dropout, educational opportunities; 

• I came out of the service, continued my studies got wrapped up in the 60s revolution, became a journalist and eventually joined Legal Services as a paralegal. 

Those are all my grand pivots but none as important as me becoming a lawyer and then earning a spot in the top-tier practice that is federal law.

It’s not just luck - I have worked hard to get where I am - but it plays a pretty big part. Even doing criminal work; that hadn’t been my intention. I spent my legal services time and my law school apprenticeships in civil law doing Public Benefits work. 

Fresh out of law school I was already hitting burnout listening to civil lawyers and sitting in pointless depositions. I had teamed up with my Legal Services mentor Arthur Madden. I got sucked into criminal law when he sent me to cover a few things for him. It was exciting and interesting and seemed like much more vital work.

My partnership with him gave me street cred. My Spanish language skills all of a sudden became an asset and, yes, luck, I jumped to the front of the line.  

The majority of the work I do is federal and over the years I've reached an equilibrium here. I do my job. I do my best. I'm conscientious. I’m respectful but I am not a pushover. I try to be as honest as I can be. I try to be all of those things because I am my stock in trade and because what we do - all of us, from the judges down to the file clerks - is important.

I try to stay real. I can be pathologically candid.  Some times folks don't like what I say. Some years ago I was quoted in the newspaper making some remarks critical of the system. An AUSA’s husband read the article. "Won’t he get in trouble for that?" Had I lost my mind saying that? "Oh that's just Dom," she told him.

These days, I make it a habit that when I enter our federal courthouse I greet the gatekeepers there with a "power to the people" fist-raised salute. 

Now, these guys are not Bernie Bros. They are ex-Troopers and all sorts of law enforcement folk. But I don't get that they're put off by that. They laugh. They probably welcome the breakup of monotony. Or maybe they just think "well, that just Dom".

It might just be indulgence but I don't think so. The real reason, I think, is that in the many years I've been practicing here they've come to know me; they know what I stand for and that for all my shenanigans, froth, labels, antics, I am striving to respectfully do the best I can do to make the system work AND at the same time serve my clients.

Regardless, I don't do it for them. I don't do it to provide comic relief. Power to the people is an idea right there where it belongs. It's a reminder to myself why I became a lawyer. In a certain aspect, it tracks close to being self-deprecating - me, I have bought into this gig where by systemic design I am handicapped and fighting a very powerful machine; where all the odds are pitted against my clients. And it would be if I wasn't proud of the work that I do, if I didn’t feel that my clients need me to be there for them and that without us the system would be evermore grinding and merciless.

But that’s just Dom.

I couldn’t be prouder of working with our court. I love being here, practicing Top Gun level legal work with this caliber of people is itself an honor. This award is just the cherry on top.

Words cannot express how humbled and appreciative I am of this honor. I hope to continue to do justice to it. 

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Suspending habeas corpus?

Suspending habeas corpus?

Suspending habeas corpus is shorthand for eliminating a process that protects a constitutional right, like the right of due process.

It's easy to dismiss something with a Latin phrase that discusses a writ about something or other. What it hides is an attack on the Constitution, an action so consequential that it has been invoked only twice and only in times of war.

Rending our founding document by engaging in fantasies as the rationale for invoking war powers damages what little credibility this administration has and is much more important than this band of miscreants.

Due Process is just one of the guardrails put into the Constitution for exactly the purpose that they're trying to get around it. Like posse comitatus, it is designed to question oversteps of authority. When people liken what is happening to fascism, it seems less hyperbole where the historical parallels are obvious and now in play. Here, not elsewhere.

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