All posts by Jack McCullough

H.R. McMaster shreds the Honor Code

You are undoubtedly familiar with the Honor Code H.R. McMaster was required to adhere to when he was a cadet at West Point. Everyone knows “A cadet will not lie, cheat, steal, or tolerate those who do.” A seemingly simple rule that anyone can comprehend and follow, but you may not know the rest of it. In this case it is clear beyond clear that McMaster violated the Code by quibbling.

LYING: Cadets violate the Honor Code by lying if they deliberately deceive another by stating an untruth or by any direct form of communication to include the telling of a partial truth and the vague or ambiguous use of information or language with the intent to deceive or mislead. The term for this kind of evasive, misleading statement is “quibbling”, and it is considered a violation of the Code.

In the administration’s effort to discredit the report of the president revealing sensitive classified intelligence to Russian officials in the White House, they had McMaster make this statement:

The story that came out tonight, as reported, is false. … At no time, at no time, were intelligence sources or methods discussed. The president did not disclose any military operations that were not already publicly known. … I was in the room. It didn’t happen.

This was a clear attempt to lead the listener to conclude that the press story was false, but it did so in what has been termed a classic non-denial denial. He categorically denied certain actions, discussing intelligence sources or methods and disclosing military operations that were not already publicly known. By listening to his statement we are expected to conclude that the story reported by the Post and others was false and shouldn’t be relied upon. If you look more closely, though, you see that the stories in question never claimed that he discussed sources and methods or military operations.

In other words, in order to give the false impression that the Post story was wrong McMaster denied facts that were never alleged. That is, he told a partial truth and used vague or ambiguous language with the intent to mislead.

I don’t know if a military officer remains bound to the Honor Code when he is no longer a cadet, but at a minimum he violated the most basic principles that those seeking a commission in the armed forces are expected to follow.

Can you possibly argue that this can be tolerated?

Recreation and Drinking Water

We’ve talked about this issue before: what level, if any, of recreational use–boating, kayaking, fishing, etc.–should be allowed in Berlin Pond, the body of water located in Berlin and owned by Montpelier that provides drinking water for the capital city. The argument has even been to the Vermont Supreme Court, which ruled that the city charter, as it then existed, did not allow Montpelier to prohibit recreational use of the pond.

Well, the conversation is still going on years later. If you’re interested in the science of the debate, take a look:

Informational meeting on the potential impact of recreational use of Vermont’s small drinking water ponds, including Berlin Pond, with regard to pathogenic contamination.

Wednesday, March 15, 1:30-3:00 p.m., Montpelier City Hall Council Chambers

Dr. Jeffrey Griffiths, an expert on Cryptosporidium and Cryptosporidiosis, and other waterborne infectious diseases, will speak on the potential contamination of Montpelier’s drinking water source, Berlin Pond, by pathogens such as Cryptosporidium, should recreation be allowed to continue. Dr. Griffiths is a professor of Public Health and Community Medicine at Tufts University School of Medicine, and former chair of the EPA Drinking Water Committee. For more information on Dr. Griffiths go to

Cryptosporidium is one of the highest causes of waterborne infectious disease in the US. In fact, the EPA has a rule devoted primarily to combating that pathogen, which is carried in the human gut and is not affected by chlorine. Yet the Agency of Natural Resources has said nothing about it since the state began allowing recreation on Berlin Pond, and also Stiles Pond which serves St. Johnsbury, in 2012. The State has said it wants to allow recreation on all the drinking water ponds, including the Thurmond Dix Reservoir.

Dr. Griffiths was recommended by the NH Dept. of Environmental Services where he previously testified in a similar case.

Everyone is welcome. Bring questions!

Contact Page Guertin – – if you can’t attend and have a question to ask. The event will be videoed by ORCA.


The Trump-Sessions administration decides to go full-racist

We knew it, right? Ever since November 8 (well, actually, ever since Trump got his start in politics by making a frank appeal to racism) we knew that this would be an administration of nearly unprecedented evil. We knew it even though we’ve been able to watch SNL and laugh at the spot-on impressions of Trump, Conway, and Sphincter. It was easier when they were just acting awful but not making much attempt at governing.

Now, department by department, we’re going to see what it means. As a lawyer my mind naturally goes to what is still, unaccountably, called the Department of Justice, headed by someone who was too racist to be confirmed as a federal judge thirty years ago but apparently not too racist to get the Republicans in the Senate to confirm him today.

One thing that happens, which I suppose is a kind of progress, is that they will pretend to be not merely opposed to, but actually appalled by racism. They know enough to know that they shouldn’t admit it, but that doesn’t mean they’re going to actually not be racists.

What we get from them is all kinds of assurances about how awful they think racism is and how they would never, no never, act in a way that is the slightest bit racist. For instance, here’s Jefferson Beauregard in his confirmation hearings:

Sessions said: “I abhor the Klan and what it represents, and its hateful ideology.” He denied ever condemning the activities of the National Association for the Advancement of Colored People (NAACP) as “un-American” or describing a white attorney in Alabama as a race traitor.

Hey, we know he was lying, but at least he made the effort, right?

But now he’s on the job, he’s showing up every day, and he’s starting to put his plans into place. Where does he start? By signing up to support racists in two of their most visible and vicious manifestations.

First off, voter suppression. There’s a case going on down in Texas right now filed by the Department of Justice in which the trial judge found not only that a set of new ID measures adopted by the Republican legislature (“the lege”, as Molly used to say) had a disparate impact on racial minorities, but also that the measures were adopted with the clear intention of discriminating against the blacks and the browns–you know, the darker races. And this is a case that is not only pending, but the government and civil rights activists have actually won, both in the District Court and on appeal to the Circuit, with the remaining issue being whether there is enough evidence to support the finding of intentional discrimination.

So what does Sessions do? You know already, don’t you? He sides with the racists. But the Justice Department under President Trump and Attorney General Jeff Sessions told a judge on Monday that it was withdrawing its claim that Texas enacted the law with a discriminatory intent.

Fortunately the case still goes on because the DOJ wasn’t the only plaintiff, but he has clearly told us in this one which side he’s on.

Come to think of it, he’s done it twice this week.

You know how, when the police kill an innocent, unarmed black person there’s always a call for the feds to investigate? You know, because you can’t trust the local prosecutors to investigate their buddies on the police? Kind of an important protection. In fact, [t]he Justice Department currently has 19 agreements with police departments across the U.S. to work on targeting minorities and use of excessive force.

No more, though. If you’re an innocent victim of police violence Sessions has one thing to tell you: he doesn’t care, or as they say in Russia, tough shitsky.

“We need, so far as we can, to help police departments get better, not diminish their effectiveness. And I’m afraid we’ve done some of that,” Sessions said during a meeting with attorneys general from across the country.
“So we’re going to try to pull back on this,” he continued.

So let’s count it up:
Siding with racist politicians against minority voters? Check.
Siding with racist cops against minority victims? Check.

I’m assuming we’ll see him pull off the racist hat trick this week,, but it’s only Wednesday night. Give the man a chance.

What a day yesterday!

The streets were full around the world. Millions of people came out to protest against the Pussy-Grabber in Chief. Led by women, but men, women, and children were everywhere.

I’ve been going to marches and demonstrations for almost fifty years, and the feeling in Montpelier yesterday was about the greatest I’ve ever experienced. Plus, we had 15-20,000 people on the streets of Montpelier, double the population of the city. Probably the biggest political gathering ever in the state of Vermont.

I think it’s entirely appropriate to just bask in the good feeling for a bit, but I also have some random thoughts about the event.

The first person I saw there was our own NanuqFC, another long-time activist, and we noticed the same thing: we didn’t know most of the people there. This was not the usual suspects. I am sure that for many of the people there, and not just the ones who were six months old, this was their first demonstration. What a great thing, especially if we can get them to stay involved.

Second, intersectionality has come to Vermont. Listen to the speakers and watch the people in the crowd and intersectionality and diversity were front and center.

Third (okay, this is a lighter note), the signs. Tons of homemade signs full of humor, hope, anger, and idiosyncrasy. Plus, unlike the Tea Party and Trump supporters, we know how to spell.

I appreciate all the thousands of people who came out and dedicated a whole day to opposing the short-fingered vulgarian. Even if you only walked across town in Montpelier, that was a minimum of three hours. My question for all those people is did you spend the same three hours making phone calls or knocking on doors? If you spent twenty-four hours or so traveling to Washington, how many hours did you devote to defeating Trump in 2016?

If you came to the march yesterday but were too busy to work on the campaign in 2016, will you be back in 2018? Because, really, as much as I love a good demonstration, I’d rather be knocking doors in October than standing around in the cold in January. We need each other, and we need the work that the hours and energy can produce.

Finally, one of the best signs I saw from yesterday said, “We’re going to see you all at the next Black Lives Matter march, right?”

Yesterday’s marches around the world were tremendously energizing, but energy isn’t just something to have, it’s what you need to do something. Let’s all be ready for the next thing.

Thank you, Donald Trump!

Someone once observed that a faux pas is when someone accidentally blurts out the truth.

The short-fingered vulgarian did that today, and it caused such a reaction that he had to say he didn’t mean it.

It was a discussion of abortion, and particularly whether the extreme right could trust Trump’s commitment to the anti-abortion cause. After all, he is on record years ago being pro-choice, right? So he was being interviewed by Chris Matthews, and Matthews kept pushing the anti-abortion to the logical conclusion: if abortion is illegal, should women who get abortions be punished for it?

It makes total sense. Anti-choicers claim to believe that aborting a fetus is exactly the same as killing a living human being. If it is, then anyone who does it should be prosecuted for murder, right?

And what’s more, even if you don’t pull the trigger but you hire someone to do it you also get prosecuted for murder.

And Trump went along with the whole thing. For someone who is ” very smart, really very, very smart, believe me,” he apparently wasn’t smart enough to see where this was leading, or the likely consequences of this argument (kind of a habit with him, no?), so he plunged on ahead.

“The answer is there has to be some form of punishment,” Trump said.

“For the woman?” Matthews said.

Trump said, “Yes,” and nodded. Matthews pressed further: 10 days or 10 years? Trump said he didn’t know, and that it’s “complicated.”

“It will have to be determined,” Trump said.

Of course, by the end of the day he was walking back his statements because the anti-choicers had called him to heel. They say that they never supported punishment for the woman who obtains an abortion, and I suspect that this is true for several reasons.

First, it’s bad PR. I continue to believe that the anti-choice movement is composed primarily of people who think they don’t know anyone who has had an abortion. ?Still, they realize they’re out there, and they know they would seem heartless if they were calling for women who get abortions to go to prison, so they have decided not to pursue that remedy.

Second, and this is one area in which they are actually telling the truth, they consider the women who obtain abortions to be victims. Patronizing doesn’t even cover it. What they are really saying is that women do not have moral agency, so they are not responsible for their actions. Therefore, why prosecute them?

Finally, and they will never tell you this, deep down they really don’t consider fetuses full human beings the way they claim. They say they do, but they recognize that even when it’s a painful choice it’s not the same as murder. If they did, to be morally consistent they would have to push to prosecute the women for murder, just as they would like to prosecute the doctors.

So at the end of the day we owe Trump something. It won’t happen often, but on Wednesday he blurted out the truth and exposed the malevolent core of the anti-choice movement.

So thanks, Donald. You probably won’t hear it from me again.

The Scalia Legacy

It’s already started, the conservative drumbeat about how devoted Scalia was to the Constitution.

Nothing could be farther from the truth, of course, but that doesn’t stop them from saying it.

Scalia practiced a form of fundamentalism known as textualism or originalism. Like religious fundamentalism, it has never been a consistent intellectual theme in either law or religion, but is a reaction to modernism and the inclusion of new ideas and population groups. The originalism practiced by Scalia, Thomas, Alito, and Roberts is merely an intellectual gloss on their visceral disapproval of the Twenty-First (and much of the Twentieth) Century.

A perfect example of Scalia’s legacy, one that has had terrible consequences for the United States and the world, is Bush v. Gore.

We know what Bush v. Gore did: it installed George W. Bush as president. What is significant to understand the thinking of the majority, however, is how they reached that result. The basis of the decision was the Equal Protection Clause, and the claim that differential vote counting methods in different counties in Florida violated equal protection.

The irony, of course, is that the majority was a collection of conservatives who never, ever saw an equal protection claim they agreed with. For them, and for Scalia in particular, the Equal Protection Clause was entirely limited to what Congress intended when it adopted the Fourteenth Amendment, and could legitimately go not an inch beyond. Thus, for example, Scalia consistently refused to apply equal protection to claims of sex discrimination because it never occurred to 19th Century Congressmen that women could make a legitimate claim to political or legal equality.

No, but for some reason, unique in the history of jurisprudence, the one disfavored group entitled in the eyes of these conservatives to make an equal protection claim was the residents of certain counties in Florida. Because that’s what the Civil War was all about, right? Oppressed county residents.

Going further, the fundamental meaning of Bush v. Gore?is set forth in one notorious sentence:?Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.

If there is any question in your mind, that meaning is that the conservatives were not deciding a case based on a legal principle, which would, of necessity, be limited not just to “present circumstances”, but would be applicable to all future cases raising the same legal questions. No, their decision was merely that they preferred to choose the Republican and not the Democratic candidate, and if you didn’t like it you could, as Scalia said, “Get over it.

Not a justice or a legal scholar, but a thug.

O Frabjous Day! Callooh! Callay!

Good news travels fast, so you already know.

Scalia is dead, and good riddance.

Amidst the celebrations, I thought I’d throw out some initial thoughts about what this means.

First, Obama gets the opportunity to nominate a replacement. The Republicans may not like it, but here’s what the Constitution says:

He . . . shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law:

Second, he’s going to have a fight to do it. Already we’re seeing Republicans saying that he should hold off until the next president takes office. You can understand why they would say that, but bullshit. It’s almost a year until a new president takes office, and many cases to be decided. It would be irresponsible to leave the Court with a 4-4 split for the rest of the current term and the first half or more of the next term, especially when the sole reason would be to give a Republican the chance to do it.

I’m hearing people say that there is a tradition not to fill a Supreme Court vacancy in the last year of a president’s term, but that’s also nonsense. The occasion hasn’t come up that often, since there have been only 112 justices, but a quick look tells me that both Anthony Kennedy and Benjamin Cardozo were appointed in the last year of their appointing president’s terms.

Speaking of Kennedy, this is a huge demotion for him. If Obama does get a nomination confirmed this moves Kennedy from being the most powerful member of the Court, the perennial swing vote, to the guy who gets to decide whether there are three or four votes in dissent.

Still speaking of Kennedy, there are important cases that have already been argued this term, and important cases yet to be argued. One recent example is Friedrichs v. California Teachers Association, an attack on public employee unions; there are also abortion rights and voting and redistricting cases before the Court.

The way the Supreme Court works is that it takes a majority vote to reverse a lower court decision that comes to the Court. Thus, if the votes are split, 4-4, which is the way things stand now, the lower court’s decision is upheld. If you look at the list of the cases already argued and awaiting decision, or even the cases yet to be argued this term, you will see that in some of the cases it is a conservative challenging a liberal decision, in some it is a liberal challenging a conservative decision. As long as there is a 4-4 split on the court we can predict that there will be some lower court decisions that would certainly have been reversed with Scalia voting but that will likely be upheld without him as the fifth vote to reverse.

Finally, a few last points about a replacement. I don’t doubt that the Republicans will do what they can to block any nominee, and if they vote as a unit they have the votes. There is one absolutely clear point you can make about the Republican caucus in the Senate:

Looking at the list of Republican senators I have a hard time seeing how he gets 14 votes (counting Sanders and King as Democrats).

Nevertheless, let’s say he goes forward with an appointment. I don’t have any inside information on who might get the nod, but I think we’re looking at a youngish–fifty or younger–person who has already been through the judicial or Cabinet-level confirmation process. Wikipedia has a list of people who have been “mentioned” for Obama before that I’ll link to here, along with a list of his judicial appointments. Look to judges who were appointed unanimously or nearly so: there may be some Republicans who would be hard put to justify rejecting someone they’ve already voted to confirm once or twice. Finally, as a long shot, there’s always the possibility of nominating a senator. I’ve heard it said that almost any senator would be confirmed, but that was in earlier, less bitterly partisan times.

And, to imagine one particularly unlikely scenario that might have a certain Machiavelian appeal to it, how about Hillary Clinton? She’s a smart lawyer, but she has two things that might make her appeal to the Republicans: she’s old, so she won’t be in office as long as a different appointee, and she gives the Republicans what they want, the chance to run against Bernie in November. Ya think?

Of course, anyone’s guess is as good as mine. I wouldn’t be much on his chances of getting someone through, but someone who has a less dark view of the Republicans in the Senate might be more optimistic.

Vermont Democrats challenge debate schedule

On Saturday the Vermont Democratic State Committee held its semiannual organizing caucus. On the agenda was a resolution on presidential debates.

You’ve undoubtedly read about the challenges to the debate schedule established by Debbie Wasserman Schultz, the chair of the Democratic National Committee. Only six debates, some of them scheduled at times (like last Saturday night) unlikely to attract many viewers, and disqualification for any candidates who participate in debates not sanctioned by the DNC.

Saturday’s resolution, presented by the Orange County Democrats, challenges all of these elements. The resolution was adopted by an overwhelming voice vote, challenged the DNC debate plan, calling for:

==>More debates

==>Scheduled at times calculated to get maximum viewership

==>No penalties for participating in unsanctioned debates

==>Establishing a rule at the DNC to govern future debate scheduling.

Whether you agree with the arguments that the current debate schedule and rules were established to guarantee a win for Hillary Clinton, it doesn’t look good. This resolution gives voice to the dissatisfaction of grassroots Democrats not only in Vermont but all across the country with the leadership of the national party on this issue.

The First Amendment on campus

As far back as the Free Speech Movement in Berkeley some fifty years ago college campuses have been the locus of fights over freedom of speech and freedom of the press. This week there are three big stories that illustrate some of the tensions raised by unpopular speech.

I’ll start with the one unreserved victory, the case of Steven Salaita. He was the professor who was offered a position at the University of Illinois and then fired (or had his offer revoked) after he had already moved to town and started measuring his office for drapes. The issue had nothing to do with scholarship or his qualifications to teach his subject, and everything to do with the fact that his pro-Palestinian, anti-Israel tweets had offended university donors and other supporters of Israeli government?policies. The university was censured by the?American Association of University Professors (AAUP), the Modern Language Association, and the Society of American Law Teachers, and Salaita sued in federal court.

The great news this week is that Salaita and the university have reached a settlement whereby he will be paid $875,000 for the violation of his civil rights. Let’s hope that the sting of having to pay him ten times his salary will teach Illinois and other universities that censoring professors is not a smart move.

Staying in the Midwest, let’s move down to Missouri, where we have two separate First Amendment challenges. First we have antichoice State Senator Kurt Schaefer, who wants to use the government’s financial power over the University of Missouri to block abortion waiting period research. Schaefer got wind of a study that a Ph. D. student is doing at Missouri to evaluate the effects of the 72-hour waiting period law Missouri has enacted. Schaefer claims that this study violates a provision of state law that prohibits the use of state funds to,?“encourage or counsel a woman to have an abortion not necessary to save her life.” Never mind that the study has nothing to do with encouraging or counseling women to have abortions, Schaefer seems to have adopted the current Republican stance that learning about the facts of an issue is the same as taking a liberal position. He obviously agrees with Stephen Colbert that “Reality has a liberal bias”. The university is defending the study, although the outcome is uncertain at this time.

Finally, sticking with the University of Missouri, we have the confrontation between student demonstrators and the press. Although liberal and progressive positions have for years benefited from the public exposure that press coverage brings, in this case we had demonstrators and even faculty members trying to silence press coverage of their activities.

If you haven’t watched the whole video you should. Here it is.

What you see is a group of demonstrators surrounding Tim Tai, a student press photographer, trying to take pictures of their encampment while the whole thing is recorded on video by another journalist. The biggest story has gotten widespread coverage, and it features Professor Melissa Click calling for the forcible suppression of the recording. Watch to the end and you’ll see her yelling,?“Who wants to help me get this reporter out of here? I need some muscle over here.”?Oh, did I mention that Click was a professor of journalism? Or, to be more specific, she is a Communications professor who held a “courtesy appointment” in the J School until she gave it up Thursday. We’ll see if the apology she issued is enough for her to keep her job.

There are a couple of other points to mention here, though. First, early in the video you see student demonstrators repeatedly yelling at the reporter that “You need to back up behind those signs.” (Hint: no he doesn’t.) Second, at 0:44 of the video you see a student saying, “You don’t have a right to take our photos.” Of course, a journalist, or any of us, has a right to take a picture of anyone in public, even if that person doesn’t want the picture to be taken. And finally, we see starting at 0:26 a group of demonstrators physically pushing Tim Tai to force him out of what they consider their “safe space”. We see it again at 2:17, where Janna Basler, a university employee and Director of Greek Life, starts pushing him back, and later lies about her employment at the university and grabs his arm as he tries to take pictures. It gets particularly intense at about 6:00, when a large group of demonstrators start to mob him, forcibly pushing him back by walking forward. “It’s our right to walk forward, isn’t it?”

Actually, no it isn’t. The common law elements of the tort and crime of battery are the intentional touching of a person who is not consenting to that touch, and with respect to whom the touch is harmful or offensive. (I don’t have the flash cards I made for myself when I was in law school, but the elements are set forth here.) In addition, legalities aside, there’s something really wrong with a group of demonstrators, particularly on the Left, using force and violence to silence the press, particularly on a university campus. If you’re pushing a reporter away from the story he’s covering while yelling at him, “Stop pushing me,” how are you any better than the cops who have been trained to yell, “Stop resisting,” as they beat up their latest victim?

The university has acted, suspending Basler, and I wouldn’t be surprised if Click’s resignation and apology are not enough to save her job. Will there be repercussions for the students? That seems unlikely.


Why tolerate racism?

If you’re like me you were surprised, if not shocked, to learn that the South Burlington school board had rejected calls to drop the “Rebel” nickname for its high school sports teams.

After all, it’s easy for us in the north to criticize southern states for clinging to Confederate flags and other symbols of slavery and racial oppression, but we’re immune to that up here in enlightened Vermont, right?

Well, it turns out maybe not.

The Burlington Free Press has done great reporting on the history, establishing beyond any doubt that the school was fully immersed in Confederate iconography, including the use of a rebel mascot and Confederate flags in its yearbooks, cheerleaders’ gear, and more. Nevertheless, the board rejected the proposal, blithely proclaiming that the connection between the symbol and the Confederacy “ended two decades?ago“. In the face of the call from the Free Press that, “The worst thing the school can do is to listen to those who say the Rebel controversy is a “non-issue” and belittle any attempt to have an honest discussion about the historical baggage the word carries,” that is exactly what South Burlington has decided to do.

Democracy is founded on the idea that in an open, public process elected officials will generally do the right thing. It clearly didn’t work in South Burlington this time around. Still, this decision need not be the end of the debate. As with the better known symbol of racism, the Washington, D.C. NFL team, it is time for media outlets across the state to express their principles and reject racism. Vermont newspapers and other media outlets should decide, as a matter of policy, that they will not use the name “Rebels” in their coverage of SBHS sports.

Almost 100 media outlets have taken this step with the Washington NFL team, and now it’s time to do the same in South Burlington.