AFTER INSURRECTION, MERCY IS FOLLY AND FORGIVENESS A MISTAKE

      On 9 April 1865, at Appomattox Courthouse, Robert E. Lee surrendered the Army of Northern Virginia to Ulysses S. Grant and the Union Army.  In an act of mercy, Grant permitted the Confederate troops to keep their sidearms and horses, which he knew they needed for spring plowing.  Although some of the political and military leaders of the Confederacy were tried, convicted, and briefly incarcerated, most officers and soldiers were never held accountable for their participation in a rebellion against the United States.  The prevailing thinking was that the nation would heal from the wounds of war by neither penalizing the states nor punishing the troops of the Confederacy.

It never did.  Reconstruction changed no one’s heart or mind about the equality of all men.  The Ku Klux Klan emerged under the leadership of Nathan Bedford Forrest, a renowned cavalry officer and an infamous one for ordering the murder of hundreds of Black soldiers after they had surrendered.  The Jesse-Younger Gang of former Confederate soldiers robbed banks and killed civilians, mostly “Yankee.”  The KKK revived in the early twentieth century, partly in response to the influx of millions of immigrants from southern and eastern Europe, partly in response to a hugely popular silent movie The Birth of a Nation.  From the end of the Civil War through the Civil Rights Movement, the myth of the “Lost Cause” romanticized Dixie and “The War between the States,” the southern name for the Civil War.

 

Thus, a century later, the whites who remained in the South and their descendants who migrated to the industrial upper Midwest or traveled the Oregon Trail to Idaho and the eastern regions of the Pacific northwest remained receptive to racist politics.  Arizona Senator Barry Goldwater represented them in his opposition to the Civil Rights Act (1964).  He prepared for the emergence of the new Republican Party, not the party of Lincoln which fought to end slavery, but the party of racism and other forms of bigotry under Nixon, Reagan, and Trump.

 

America faces not a geographically defined rebellion against the federal government, but a metastasized administrative-legal insurrection against it by Republican officials in the Executive Branch.  Whatever else may be said about them, these officials, from Trump and all Republican political appointees, are perverting, weakening, or destroying government programs or agencies without having secured the support of the American people and their representatives in Congress.  No one voted for Trump to withhold disaster assistance to states run by one party but not the other, shut down medical research or stop welfare benefits, or attempt to cancel a Constitutional provision of birthright citizenship—among others on a far longer and growing list.  No one voted for Senators and Representatives to ignore Trump’s violations of the law.  Trump’s reckless or lawless actions will continue as long as Republicans reject law and order, the Constitution, and democracy.

 

And until the American electorate finally rejects Republican government, especially the Trump-led, Executive Branch insurrection against the essentials of American government.  When the electorate turns against the Trump regime, Republicans will try to obscure their dereliction of duty and redeem themselves from charges of cowardice and collusion in the insurrection by saying they always disliked and distrusted the man, as if their private feelings excused their failures to fulfill their public obligations to serve the public.

 

Out of a misplaced belief in second chances or redemption, or a misguided sense of mercy, Democrats must not forget or forgive that Republican officials are no longer rational politicians, but deceitful and dedicated opponents of democracy.  For the immediate future, Democrats must do two things.  One, they must offer unceasing, unsparing criticism of the Trump administration for its misconduct and its mishandling of public affairs; and of Congressional Republicans for their cowardice and collusion in tolerating both—all to improve Democrats’ electoral chances in 2026 and 2028.  Two, they must prepare for and publicize how they would hold all Trump political appointees and their staff members accountable for their undemocratic, illegal, or unconstitutional actions.

 

For example, Trump illegally fired nearly two dozen Inspector Generals without first giving Congress the thirty-day notice and the detailed justification in each case as required by law.  Executive Branch officials—members of Trump’s staff, and officials and staff in Executive Branch departments or agencies—carried out those firings.  Every one of them should be prosecuted, with obedience to orders denied as a defense.  Convicted, every one should be sentenced to a minimum incarceration of a year and a day and be fined an amount equal to the highest one year’s gross adjusted income while in office.  Every one should be disqualified by law from receiving a commuted sentence, amnesty, or pardon; and lose any security clearance and be permanently barred from receiving another.  Every one should be permanently barred from federal or state employment or employment by a federal or state contractor; and barred from lobbying as an agent of foreign government, company, or NGO, or of a domestic company or NGO.  Every one should permanently lose the right to run for state or federal office and to vote in state or federal elections.  State governments should seek, and the federal government should support, the disbarment of every lawyer or paralegal involved in illegal actions.  The point: Every one who supported an insurrection, who violated or supported the violation of the law and the rule of law, in order to undermine or eliminate government policies, diminish or eliminate government programs, or weaken or terminate agencies, department, or other duly constituted government bodies should be punished for their actions, expelled from the franchise, and removed from direct or indirect government employment.

 

Such accountability is possible under Sections 3 and 5of the 14^th Amendment to the Constitution.  All that is required is that Democrats control the Presidency and both chambers of Congress or have veto-proof majorities in both chambers.  They can then legislate a definition of insurrection as deliberate administrative or legal actions by the country’s domestic enemies to violate the Constitution or otherwise corrupt democratic government, can prescribe for the courts the applicable punishments and penalties for such actions, and can authorize restrictions on future government or government-related employment.  Democrats should publicize their intent so that the possibility of such legislation might have a present deterrent effect.

 

A greater challenge will be presented by the federal court system and enforcement agencies.  Democrats entertain the naïve hope that the courts will act as guardrails to Trump’s illegal or unconstitutional executive orders, legislation, and administrative guidance.  But anticipatory compliance with authoritarians extends to courts.  Corruption and cowardice of the Supreme Court will trickle down to federal appellate and district courts.  With lifetime appointments, federal judges at all levels are protected from prosecution and immune to pressures.  Public reaction to their outrageous conduct or their outrageous decisions has already shown itself insufficient to reform their conduct or reconsider their decisions.  Impeachment in any case is difficult; multiple impeachments impossible.  Legislation to enlarge the courts is possible; so, too, term limits.  Despite the Constitutional requirement for lifetime terms, the political desire for shorter terms—18 is the common suggestion—can be satisfied by enacting a minimum age for appointment.  If it were set at 65, appointees would have a long record for the Senate to consider and a life expectancy of about 19 years (18 for men, 20 for women).

 

A little-remarked danger is that the Executive Branch can simply choose to ignore any unfavorable ruling—Trump has admired President’s Jackson’s remark “John Marshall [then SCOTUS Chief Justice] has made his decision, now let him enforce it.”  Of course, if Trump were to do so, Congress could impeach him.  As for enforcement agencies or personnel, whether federal, state, or local, many are already corrupted by the grant of judicial privilege; their histories of unaccountable, if not uncontrolled, power; and the swagger of military tactics and weaponry.  How to bring them under the rule of law is an imponderable.

 

The use of the military to enforce the law except in a few, rare situations is forbidden by law.  Every soldier in any unit involved in suppressing a bona fide political demonstration should be dishonorably discharged and otherwise held accountable as appropriate.  Military personnel directly or indirectly involved in injuries to or the deaths of civilians in such a demonstration should be held accountable under civilian, not military, law for their criminal acts.  All military personnel know or should be presumed to know that disobedience to an illegal command is not insubordination or punishable under military law.

 

Even if such accountability leads to anti-insurrectionist reforms, the battle for democracy will continue and democracy will remain at risk.  The deification of Robert E. Lee, a traitor to his country, focused Confederate sentiments and established him as a symbol for the “Lost Cause.”  Likewise, Trump will be deified and serve as a unifying symbol for MAGA loyalists.  Just as Confederate renegades operated after the end of the Civil War, so the Proud Boys, the Oath Keepers, and other groups of their ilk will continue to promote the antidemocratic causes which their deified leader endorsed.  Sympathetic police—many strongly conservative, violence prone, and trigger-happy—will support or stand by these latter-day Brown Shirt bully boys.  Further assaults upon democracy and the Constitution are likely.

 

Bottom line: Those who wish to protect democracy and constitutional law must remain vigilant and vigorous in their defense against the virus presently represented by Trump, Republican officeholders, and MAGA supporters.  Just as viruses mutate, the Republican Party might mutate into a new political organization with a different name but with the same stench.  As the Republican challenge to democracy is never-ending, so, Democrats, in the political equivalent of playing whack-a-mole, must whack each and every Republican for each and every egregious word and deed, without forgiveness or mercy.

THE TRUE COSTS AND CONSEQUENCES OF THOSE $20,000,000 CITY BONDS

      I revisit the subject of my previous blog because City Council members and the media bandy about the settlement cost of $20M, and, as a result, the public does not know that Council’s recently passed Ordinance 3089 allows the city to issue settlement bonds which will incur additional interest costs ranging from $10M (5% interest) to $30M (10% interest).  In other numbers, the city’s borrowing will add 50% to 150% in costs to the settlement cost.  So LCPD officer Felipe Hernandez’s killing of Teresa Gomez might cost Las Cruces as much as $50M.

I cannot be precise about the interest rate for two reasons.  One, the bonds have not been put out for sale.  Two, City Manager Ikani Taumoepeau’s staff, probably at his direction, does not want me to know; it refuses to provide those estimates which Council should and might have had in deciding to sell bonds to cover the settlement.  The likely motive for refusing me this information: neither the aggregate amount nor the 20-year payment period would likely be politically popular.

 

Council had two options for paying off the $20M settlement.  The one which it adopted is the sale of bonds.  Thus, Ordinance 3089 specifies limits: no more than $21M face value ($1M for administrative costs), no more than 10% interest, and no more than 20 years.  The effect is that the current City Council imposes repayment costs on future Councils for 20 years, with their budgets for services or projects reduced or taxpayers’ bills increased to fund annual repayments.

 

Some people might liken mortgage or capital improvement payments to these settlement bond payments.  But there is a big difference between them.  Payees of mortgage or capital improvement bonds enjoy the benefits of the houses or roads, bridges, or buildings during the lifetime of the bonds.  The public enjoys no benefit during the 20-year repayment period.

 

The other option is paying off the settlement in current funds.  City Council could have directed the City Manager to make one-time deferments or cuts in services and projects to find $20M, or 3.4%, in the city budget of $596.6M.  These relatively modest adjustments would thus avoid $10M to $30M in interest payments.

 

The question is who benefits from the choice of options.  Obviously, the public does not benefit from the first option (bond debt), but City Council members do.  They avoid the political cost of approving cuts in services and projects.  They also avoid the question of responsibility for their refusal to undertake police reform of any kind over the past 4 years, which might have prevented Officer Hernandez from killing Srta. Gomez in the first place and on their watch.

 

In short, Ordinance 3089 reflects City Council members’ self-serving political decision to prevent accountability from public dissatisfaction with reduced services or projects during their term in office.  The interest costs of deferred payments are a lot to pay for their political comfort.

 

Could and would City Council members ever do the right thing in this matter, they should revoke Ordinance 3089, approve a revised budget deferring or cutting funds for some services or projects amounting to $20,000,000, and impose all costs and consequences on the current Council, not on future councils.  Otherwise, citizens might want to reconsider their support for those who voted for Ordinance 3089, shifted most settlement costs and schedules to others, and skipped out on their responsibilities.

CITY COUNCIL WANTS COSTLY BONDS AND IPRA LIMITS TO PAY FOR OR COVER UP POLICE MISCONDUCT

       On 2 December, Lucas Herndon of District 2 pointed out to the Las Cruces City Council that New Mexico is known nationally and internationally as the most dangerous state in the country for police killings of civilians.  [Albuquerque and Las Cruces have roughly similar ratios of annual police killings, about one per 100,000 civilians.]  His questions about what Council means by public safety were general ones, with some addressing overall funding for public safety and of settlements for LCPD killings. 

My 26 November blog, “Las Cruces Cannot Afford This City Council,” stated the costs of three killings: in 2020, Antonio Valenzuela, $6,500,000; in 2022, Amelia Baca, $2,750,000; and in 2023, Teresa Gomez, $20,000,000, the largest in the city’s and probably in the state’s history.  I noted Council’s condolences for the Gomez family and wondered whether Council would feel similarly about all future victims of cop-killings and compensate similarly all victims’ families.

 

We are now learning City Council’s means to finance the Gomez settlement.  It has just passed Ordinance 3089, which authorizes municipal gross receipts tax revenue bonds not to exceed $21 million face value, 10% interest, or 20 years to settle with the Gomez estate.  Before the vote, Mayor Pro Tem and District 4 Councilor, Johana Bencomo opined that “If a $20 million settlement doesn’t shake us out of this place, I’m not sure what will.”

 

Bencomo’s opinion is morally obscene.  The Valenzuela and Baca killings did not “shake” Bencomo to pursue what she said that she wanted two years ago, namely, “real police reform” (emphasis hers).  The Gomez killing did.  The difference: the earlier killings involved only seven-figure settlements; the later one involved an eight-figure settlement.  What “shakes” Bencomo is the cost of the settlements, not the cost in lost lives; in other words, she would have been “unshaken” and tolerated more police killings if the costs of settlements were not too high.  So much for her professed concerns about human lives, public safety, and police reform.

 

Not only has City Council been compelled to pay a settlement far larger than “condolences” would suggest, but it has also adopted an unwise means to finance it.  Whatever may have been discussed in executive session in agreeing to this settlement, it is unlikely that Council members considered any of the following three important questions which have consequential answers; they certainly did not mention or discuss them in the 6 January public meeting when they passed Ordinance 3089 without comment.

 

(1)  What are the estimated full or cumulative costs—principal and interest—over the 20-year lifetime of the $21 million in revenue bonds at different interest rates?

 

(2)  Why is a direct payment from the current budget, despite necessary cuts in selected budget items, not a preferable because less expensive way to achieve the same end?

 

(3)  Why should the costs of this settlement extend beyond the terms of office of the members of the City Council on whose watch the killing or the settlement occurred?

 

The failure of Council Members to consider these questions raises a fourth: why did they not ask and answer them?  Here are some possible reasons.  To (1), Council members probably want to hide the total cost of the bonds, which ranges between $31 million (at 5%) and $50 million (at 10%)—so much more than the stated $21 million face value that the public might object.  To (2), they probably do not want to go to the trouble or to incur the political pain of selecting budget items for cuts, despite the additional cost of $10 to $29 million by using bonds.  To (3), they thus hope to avoid accountability at the ballot box by spreading the costs to many who had nothing to do with their fecklessness.  These reasons might sway the public to belatedly oppose Ordinance 3089; they should also embarrass Council members enough to induce them to reconsider it.  It is not too late for Council to do the right thing, even if it means loss of face and some real work.

 

This issue reflects the refusal of City Council to set policies which might lead to “real police reform.”  Instead, Council members want to conceal police misconduct which might (finally) arouse the citizens of Las Cruces to demand reform.  The first step in that effort is to support restrictions on access to the information about police misconduct, especially killings of citizens.

 

Thus, after City Council lost an Inspection of Public Records Act (IPRA) case costing Las Cruces about $150,000, City Clerk Christine Rivera, who committed IPRA violations and was a losing defendant, wants restrictions on IPRA requests.  Her argument at the 12 November Council working session is that her staff is overburdened by growing numbers of IPRA requests.  Many of them are resource-consuming IPRA requests for police camera footage, which require considerable effort and time to review and, if necessary, redact it.  After my IPRA request led to the release of footage showing LCPD Officer Jared Cosper killing Sra. Amelia Baca, many citizens were shocked by how some officers operate and raised questions about LCPD leadership and training—obviously, not matters which Council or the LCPD want discussed in public.

 

Any limits on IPRA requests curtail what the public can know about government operations.  There are two ways to limit requests.  One way is to limit access: create administrative hurdles or exempt certain categories of public records.  State law defines the exceptions to IPRA requests.  It exempts categories—among others, personal records, business decisions, attorney-client privilege—necessary to protect sensitive data.  Exempting other categories would run counter to the purpose of IPRA because doing so would give government the right to decide which of its operations the public can know about—a clear conflict of interest. 

 

The other way is to limit access by requiring citizens to pay fees to fulfill IPRA requests.  Rivera’s recommendation is that City Council urge the State to amend the law to permit such fees.  The problem is that they would be discriminatory, differentiating between those with discretionary funds from those without them.  They would operate like a poll tax on public records, which are the legal property of the public without regard to economic status.

 

The odd thing about the City Clerk’s argument is that, when citizens demand more services, City Council usually responds by providing them.  The obvious counter-argument is that the city should allocate additional resources to accommodate them.  But something so sensible is alien to the Las Cruces city government’s arrogant desire for secrecy, as if it knows best and does better without the involvement of the citizens who elect or support them.