Stephanie Says

Although she’s been gone for nearly three years, there is still considerable discussion in progressive circles blaming Justice Ruth Bader Ginsburg for the current disaster on the Supreme Court, accusing her of “letting us down,” “dropping the baton,” being “selfish and egotistical,” and other various wrongs and failings because she did not retire in 2013 and allow President Obama to appoint her successor.

Not only are these accusations unfair to a heroine who gave her all to fight for social justice for decades and did more for women and marginalized people than most of us can even imagine, much less come close to replicating, blaming her for the current makeup and direction of the Court is counterfactual and historically inaccurate.

Here are the facts:

1. Justice Ginsburg had an opportunity to retire in or prior to 2013. She chose not to.

2. While there were some reports that President Obama asked her to retire in 2013, those are based on second-hand and anonymous sources and have never been confirmed. So, while it’s possible that the President or his interlocutors asked her to step down, we do not know whether this actually occurred.

3. After early 2014, there was a certain risk that if Justice Ginsburg retired, Senate Republicans would block any nominee Obama named to replaced her.

4. At that point, the only chance for President Obama to replace Justice Ginsburg with a nominee of his choosing would be for the Democrats to increase their margin of majority in the Senate. their majority and in the 2014 midterms.

5. But in 2014, not only did the Democrats reduce, not increase, their numbers, they lost the majority when Republicans won enough seats to take control, thereby virtually ensuring that, should Justice Ginsburg step down, her seat would not be filled during President Obama’s term. That likelihood was confirmed when, following Justice Scalia’s unexpected death, Senate Republicans blocked President Obama’s nominee for the remainder of his term.

6. Given this, it was clear the window of opportunity for Justice Ginsburg to retire and be replaced by a liberal had closed. After 2013, she could NOT retire if there was to be any chance for her seat to be filled by a liberal. Of course, she could have stepped down anyway and taken the chance, but as we saw with the Garland nomination, that chance was too dangerous. If she wanted her seat saved, she had to stay in it until the next Democratic administration.

7. In 2016, Hillary Clinton, President Obama, their surrogates and civil rights activists across the country repeatedly and loudly warned that the Courts were on the ballot, that the next president would definitely fill one, likely two and possibly three or more Supreme Court vacancies, and any vote not cast for Hillary Clinton was a vote to install conservative justices on the Supreme Court and lower federal courts.

8. Despite the fact that it was distinct possibility that Justice Ginsburg could die during the next term and her seat would fall into the hands of the next president, a critical mass of progressives refused to vote for Hillary Clinton. As a result, Donald Trump was elected president.

Here is some basic math:

1. In 2013, the Supreme Court was split 5-4, with liberals tenuously in control, depending on how Justice Kennedy, who often, but not always, voted with the Court liberals. Had Justice Ginsburg stepped down and been replaced by a liberal in 2013, the balance would have remained unchanged.

2. After Scalia’s death in 2016, the balance shifted to 4-4, where it remained until 2017.

3. Within days of his inauguration in 2017, Trump, as he’d promised during the campaign, appointed an extreme conservative, Neil Gorsuch, to Scalia’s long open seat. The Court returned to a 5-4, slightly left-leaning majority.

Ginsburg was still on the Court.

Had she stepped down and been replaced by a liberal in 2013, the balance would have still been 5-4, slightly left leaning.

4. In 2018, Justice Kennedy, the swing vote, retired and was replaced by the fervently right wing Brett Kavanaugh. The Court balance lurched sharply to the right, with conservatives now holding a solid 5-4 majority.

Ginsburg was still on the Court.

Had she stepped down and been replaced by a liberal in 2013, the balance would have still been a solid 5-4 conservative majority in 2018.

6. Justice Ginsburg stayed on the bench for two more years, working up until the very end of her life. When she died in September 2020, she was replaced by Amy Coney Barrett, increasing the conservatives’ already solid majority to 6-3.

Based on these facts and numbers, a few things are certain and indisputable:

1. While in hindsight, knowing what we know now, it might have been good for Justice Ginsburg to retire in 2013, there was no way to predict two unprecedented occurrences that would affect the Court in the future – Mitch McConnell’s abuse of the Senate confirmation process and the election of Donald Trump.

2. After Justice Ginsburg didn’t retire in 2013, the burden and power shifted from her to the electorate to elect a Democratic president to succeed President Obama to ensure that when she did retire or die, a Democratic president, not a Republican one, would fill her seat. There was nothing else she could do to protect her seat but to stay in it until that happened.

3. The electorate failed to elect a Democratic president in 2016, so all Justice Ginsburg could do was stay in her seat, if there was any hope of turning it over to a liberal. And she did, for another four years. Often, Justice Ginsburg was the deciding vote in critical cases and provided a strong voice in majority opinions and dissents. It’s likely that she would have loved to have retired, to enjoy her final years and days in peace and quiet. But she remained at her post and continued to fight for us until the very end when her body gave out in September 2020.

4. As is clear from the fact that the conservatives seized full control of the Court in the fall of 2018, a full two years before Justice Ginsburg died and while she was still on the Court, that her decision not to retire prior to 2014 is NOT the reason for the Court’s rightward shift. The Court flipped conservative because a Republican Senate was elected in 2014 and a Republican president was elected in 2016, not because Justice Ginsburg didn’t retire in 2013.

5. Even if Justice Ginsburg had retired in 2013 and President Obama managed to get a liberal successor confirmed, the current Supreme Court would still be a solidly conservative 5-4 today – UNLESS the voters had made different choices on the 2014 Senate race and 2016 presidential election.

Now here is some fundamental truth:

Had progressives helped Senate Democrats keep their majority in 2014 and not helped usher Trump into the White House in 2016, even if Justice Ginsburg had remained on the bench until she died in September 2020, the Court would now be 5-4 with liberal justices in control.

The bottom line is that we are not in this situation because of anything Justice Ginsburg did or didn’t do. We are where we are, not because Justice Ginsburg didn’t step down, but because we, progressive voters, did not step up.

Using hindsight to smear her because voters made a decision to allow Senate Republicans to control the confirmation process and Donald Trump to fill vacant Supreme Court seats is based on a lie. And worse, it is a cruel and vicious disservice to a great American heroine who gave us her very last measure and deserves our respect and gratitude.

So, the next time anyone feels compelled to blame someone other than Mitch McConnell and Republicans for our situation and is tempted to point the finger of shame at our side, lay off of our dead heroine and turn that finger the other way around because WE must shoulder a large share of the responsibility.

And if you still feel the need to bring her into the discussion, it would be best to simply say, “Thank you, Justice Ginsburg for your service.”

When I was a young associate in a large law firm – the first and only Black attorney they’d ever hired – I noticed something interesting about how they assessed Black potential hires. Whenever Black attorneys applied to the firm, the hiring committee circulated their law school transcripts and made a point of urging the hiring attorneys to review them, something they never did for white applicants.

White lawyers with any experience out of law school were assessed based on their post-law school performance – their track record as a lawyer, references, etc. Similarly-situated Black applicants were also evaluated on all of those things AND their grades and LSAT scores, measures that are merely predictors of future success that really mean nothing once a student graduates and actually starts working. I came to realize this was done in order to keep Black lawyers out. “Yes, he’s done well as an attorney and has excellent references. But did you see his GRADES? He probably would not do well here.”

And then, when I joined a law school faculty and participated in faculty recruiting, i saw the same thing. We never saw the academic transcripts of white applicants but when Black applicants were considered, we were strongly encouraged by some hiring committee members to review their transcripts, which were kept in a special folder in the dean’s office. As they were at the law firm, the invitations to visit that file were offered as a warning, in hushed, concerned tones, “Before you make a final decision about hiring her, you should really take a look at her transcripts …”

I’m reminded of this when I see comments in the press and on social media questioning Kamala Harris performance as vice president and pointing to poll numbers to suggest that she’s not popular with Democrats or the American public and, thus, should be replaced on the ticket.

Because this argument sounded odd and unfamiliar to me, I decided to go back and look at Biden’s poll numbers at this stage of his vice presidency to compare them with Vice President Harris’.

And you know what? I couldn’t find any. Zip. Because, until recently, it was not a common thing to conduct standalone popularity polls on the vice president. They were just treated as part of the team and the polls focused on the president, not the VP. Perhaps there are some polls out there from that period that I didn’t find, but if there are, they weren’t very prevalent and were very few and far between.

And they definitely weren’t the subject of article after article and constant chatter about whether he should be replaced on the ticket.

But now that we have a Black female vice president, we are inundated with polling about HER individual popularity. Why do you think that is?

That’s a rhetorical question. I know why. As my own experience shows, this REGULARLY happens when Black people, especially women, move into key positions. We are scrutinized more closely, held to higher standards, measured against new and different criteria, and treated with much more skepticism and analysis than our white male predecessors and colleagues.

I’ve experienced this myself and I’m sure just about any Black woman you ask will tell you the same thing.

So I caution you against putting too much store in Vice President Harris’ popularity polls or claims that she hasn’t been visible or effective enough. Vice Presidents aren’t supposed to be individually popular and they’re not supposed to carry out their own agenda. They are there to do exactly what the president who selected them and placed them by their side wants them to do. And so far, Vice President Harris has done just that and clearly, Joe Biden is pleased with her performance

By all measures previously applied to her white male predecessors, Kamala Harris is doing an outstanding job as vice president. And, just as important, she obviously has Joe Biden’s full support and confidence.

That is more than good enough for me. If it’s not good enough for you, I suggest you take a moment to ask yourself why you’re expecting the first Black female vice president to produce receipts never demanded from the 48 white men who came before her.

Why are people so upset that abortion is now more difficult or impossible to obtain in some states? After all, any woman can still get an abortion, regardless what state she lives in, if she really wants one. If abortion is illegal in her state, she can simply travel to another where it’s still legal.

Sure, it may be a little harder to go out of state and traveling might cost money she doesn’t have, but it can be done. She should have prepared for this beforehand, either by taking precautions not to get pregnant or by making prior arrangements to travel out of state for an abortion in the event that she did.

Right?

Of course, I’m being facetious.

But I’m presenting this argument in this way to show the fallacy of some of the defenses for requiring state-issued photo IDs to vote.

Voting is a constitutionally-protected right. Our government should make it as easy as possible for people to exercise their franchise. Yet numerous Republican state legislatures are putting up obstacles clearly intended to make it more difficult and often impossible for eligible voters to cast a ballot. And the targets for this disenfranchisement are the poor, minorities, students, the elderly, and others who are more likely to vote Democratic, but less likely to have the limited forms of ID that are now being required.

And yet many people who are willing to admit that these measures make it more difficult for eligible voters to cast a ballot, in the next breath claim that it’s no big deal because, after all, they can still vote if they can figure out how to navigate the obstacle course put in front of them.

But the truth is that while it might be eazy-peazy for most people to get the ID these laws require, many Americans just can’t afford them – even $10 or $20 is unmanageable for some people and can make the difference between being able to vote and being disenfranchised. These voter ID laws are modern day versions of the poll tax, literacy tests, and correctly guessing the number of bubbles in a bar of soap that kept Black Americans from voting for decades after Reconstruction and were invalidated by the 1965 Voting Rights Act.

It is really distressing to see people defend these post-Shelby measures, masquerading as “fraud prevention” because “anyone can get a photo ID.”

ANYONE CAN do lots of things in the abstract, but, in fact, it is impossible for them in their real world.

Just as it is ridiculous to insist that abortion restrictions aren’t a problem because there are other ways for women to access abortions, it is also ridiculous to claim that voter ID laws are fine because there are ways for people to get a driver’s license.

So, before trying to justify restrictive voter ID laws because it may be possible for some people to overcome them and still vote, step out of your comfort zone and consider what you’re advocating and the people it affects.

I see the “Let’s replace Biden+Harris in 2024” discussions are picking up again.

Before you so eagerly throw the incumbent President and Vice President under the bus in hopes of chasing after a shiny new thing, consider the following:

If, for some reason Biden decides not to run, he’s not going to anoint a successor so they can just step into the general election in his place. He will announce he’s not running and then get out of the way. Whereupon there will be a knock down dragged out fight for the nomination. And it won’t be pretty.

You wanna see “Democrats in disarray”? Just wait until primary season when a dozen or more contenders jump into the race and begin to tear each other apart.

The money, time, effort and unity that could go into building up Biden-Harris for the general will be soaked up in the first quarter of 2024 in the early primaries as the Democrats battle it out.

And then, when a victor finally emerges – sometime in May or June or maybe even later – and limps, bloodied and battered into a bitter, divided convention, they’re going to have to spend most of their time mending fences, binding wounds, and making concessions to the also-rans to ensure their support.

Wait. There’s more.

When our beat-up nominee straggles into the general election season, they won’t be anything close to a “shiny new thing” anymore. They’ll be damaged goods, dragging the baggage and accusations hung around their neck by their primary opponents that will happily be used against them by the Republican nominee (who will likely have been chosen months before and has been doing a number on them since then).

And what are they going to run on? Their record as a Senator or Congressperson or Governor? They sure can’t run on Biden’s successful record because, guess what? That’s BIDEN’s record, not theirs. And Biden isn’t running because he’s too old or something.

Nah … They have to run on their own record. And no one who would run in Biden’s place has a record that comes anywhere close to his. So good luck with that.

And let’s not even talk about the power of incumbency.

No, let’s do talk about the power of incumbency.

That awesome power would vanish if Biden steps aside. Not being the incumbent, the new candidate can’t use it – the incumbent can’t confer it on someone else – and Biden’s ability to use it would be deeply diminished as soon as he announced he’s not running and becomes a lame duck.

Bottom line: Replacing Biden means squandering valuable time and money, destroying our unity, and losing all the advantages of incumbency.

Replacing Biden would go down as one of the all-time dumbest and short-sighted moves a party has made in recent memory.

Think the long game, people. I am. And that’s why I’m riding with Biden+Harris all the way.

When I was in junior high, our mom treated my sister, brother, and me to a day in New York City during a school break. We started with lunch at Mama Leone’s and then went to see the New York Shakespeare Festival’s production of the hit musical “Two Gentlemen of Verona” at the St. James Theatre.

We loved the songs, the dancing, the melodic dialogue, the racy lyrics. And while my sister fell madly in love with Clifton Davis, who played Valentine, I was mesmerized by Raúl Juliá, the then-unknown actor who played Proteus.

After the show, we went backstage for autographs (you could do that then) and were ushered up steep, narrow metal stairs to the dressing room Raúl and Clifton shared.

Although they didn’t know us from men in the moon, Raúl and Clifton welcomed us in, offered us apple cider, signed our playbills, and chatted with us as if we were all old friends. We were only there a few minutes, but it was amazing for us. And it changed my life.

A few days later, I looked them both up in the Manhattan phone book (because I did stuff like that). Clifton wasn’t there, but Raúl was.

So, I called him.

I was startled when he answered and didn’t know what to say. I babbled something about wanting to thank him for being so nice to us. Instead of sounding annoyed or brushing me off, he said, “Stephanie, it is very nice of you to take the time to thank me. But it was my pleasure.”

I then asked him a few questions about where he was from, how long he’d been acting, did he like performing Shakespeare – and he answered me patiently (Puerto Rico, 10 years, yes). When I ran out of things to ask to him, I thanked him for talking with me and told him I hoped I hadn’t bothered him. He responded, “Not at all. Thank you for coming to the play and for calling me. Take care.”

That may have been the first time I ever heard the phrase “Take care” and it surprised me because the more common term then was a hipper “Take it easy.” “Take care” sounded very old-fashioned and polite. But I liked it, so I started saying it, too. Still do.

A few months later, I decided to call Raúl again. As before, he was very kind and patient. He told me he would soon leave “Two Gentlemen” to star in a new musical about a garbageman in space called “Via Galactica.” I told him that I was reading Shakespeare plays and enjoying them, which he encouraged me to continue doing. He suggested I read them out loud so that I could really hear the music of the language. And I did.

My mother worked, my father traveled frequently, and my sister was away at school, so I was often at home alone after school. Reading Shakespeare out loud turned out to be a wonderful way to pass the time.

I thought it would be fun to try to memorize a Shakespeare play and chose “Two Gentlemen of Verona” because I was familiar with it and I knew the songs from the original cast album. It took me weeks of reading and repeating – on the school bus, during study hall, at home after school, in bed before going to sleep, but I managed to do it.

And once I was – as we theatre people say, “off book,” I put it to use. After school, I’d move the coffee table out of the way and perform the play from start to finish. Mind you, I didn’t just recite the lines. I PERFORMED – all the parts, complete with songs and choreography. I was great.

A few months later, “Via Galactica” opened and, while Raúl’s reviews were generally good, the show turned out to be the biggest flop in Broadway history up to that time. I was devastated and was furious with the critics for doing Raúl like that. I even wrote one of them a rather nasty letter berating him for not understanding true art.

Fortunately, my father’s administrative assistant, who was a surrogate mother to me, had gotten tickets for the first weekend after the opening – just in time, it turned out, since that was the day the beleaguered show was closing. I don’t know what the other 100 or so people in the cavernous theater thought of it, but I LOVED the play. And, unsurprisingly, I thought Raul was brilliant in it.

When I went backstage, I found Raúl sitting in a swivel chair, still in his silver lamé spacesuit costume as someone carefully removed his blue face makeup and Merel Poloway, his then-girlfriend, later his wife, curled up on the sofa reading a book.

He looked tired and a little sad.

I told him that I didn’t care what anyone said, the show was WONDERFUL.“Why can’t they keep it open and let word of mouth build an audience?”

He explained that it cost nearly a million dollars a week to run the play and it was losing too much money to keep open.

He asked me what I’d been up to since he last saw me and I proudly told him that I had memorized “Two Gentlemen of Verona.” His eyes widened and he leaned forward in his chair, “The WHOLE PLAY?”

Yes.

“I don’t even know the whole play. Show me.”

Whereupon, I proceeded to recite:

“O, hateful hands, to tear such loving words! Injurious wasps, to feed on such sweet honey and kill the bees that yield it with your stings. I’ll kiss each several paper for amends.” (I’m pleased to report that I just typed this from memory …)

“Oh, my God, Stephanie! That is FANTASTIC!” he exclaimed, laughing. Merel looked up and smiled.

We talked for a little while longer and then I left him to continue the slow process of undoing his hair and makeup, noting that he winced a little as the show’s hairdresser started to remove the glued-on white wig.

“Take care, Stephanie” he called after me.

Over the next several months I continued to scour the papers for mentions of him to clip carefully and add to the scrapbooks I’d started. I named my goldfish Gabriel Finn after Raúl’s “Via Galactica” character (get it?).

After a year or so, I decided to call Raúl again. When he answered, I said, “I don’t know if you remember me.” He said, “Of COURSE, I remember you, Stephanie! How ARE you?”

I told him I hadn’t memorized any more Shakespeare plays, but I was active in my junior high school’s experimental theatre group. He told me he was rehearsing for a small play, “The Emperor of Late Night Radio,” at Joseph Papp’s Public Theatre.

My best friend Karen and I decided we would go to the play and talked The Good Judge into going to theatre one evening after work to buy tickets for us. The date we picked to go was Saturday, March 9, Raúl’s birthday.

The night before the show, we baked Raúl a birthday cake and composed a lovely poem to write on it:

“You are the best actor it’s true. We certainly admire you. You seem to have a certain way of brightening up a matinee”

That was just the first verse. There were several more. But at the last moment, we discovered that, having baked a normal sized layer cake, not an industrial-sized sheet, there was only room for the first line, so that’s all it got.

We also had an icing mishap that turned the icing a strange shade of blue, but didn’t have time to redo it. So, the next morning we headed to NYC on the bus with our blue cake.

Well, WE headed to NYC on the bus, but the cake wasn’t with us. Karen’s father wanted to drive us into the city, but we insisted that we were old enough to ride the bus by ourselves. But since we realized we might have difficulty riding the bus AND carrying the blue cake, we rode the bus with Karen’s father following closely behind in his car, the cake riding along in the passenger seat.

We enjoyed the offbeat play and afterward, took the cake backstage to Raúl. He said it looked delicious, but we never actually saw him eat it, so I don’t know what became of our blue cake with the half-baked poem.

Over the next few years, as Raúl’s profile rose and he appeared on Broadway more regularly, I went to see him whenever possible. During my senior year, our high school class watched him star in The Cherry Orchard. After the show, he came outside to say hello to the class and went out of his way to make sure they knew we were friends, pretty heady stuff for a teenager.

After spending 10 minutes or so talking to my classmates and answering questions, he said goodnight and gave me a big hug. As he walked away, heading for the subway home, he turned back toward us, held his hand to his ear and mimicked a telephone with his thumb and pinkie and said, “Call me!” Life really couldn’t get any better than that.

I didn’t see Raúl again for many years. I graduated high school, went off to college (where his iconic Threepenny Opera poster hung in my dorm room), finished law school and became a lawyer and law professor. As I matured, my obsession with Raúl subsided, but I always followed his career closely, never missed seeing his films, and took great pride in telling people I was his very first fan. I stopped calling him, but every year, sent him a birthday card.

Years later, when I heard Raúl would tour in “Man of La Mancha” before taking the show to Broadway, I made a point of going to see a matinee performance in Pittsburgh. It was his birthday, 30 years ago today.

It was very different than those long ago days in New York when I could just waltz backstage. This time, after the show, there was a crowd of people at the stage door waiting for him, but the stage manager told us he wasn’t likely to come out before the evening performance. So, I left the birthday card I’d brought, asking that he deliver it to Raúl, waited a few more minutes, just in case, but then left when it was clear I wouldn’t see him.

As I headed up the street, a woman rushed out and shouted for me to stop. “Are you Stephanie? Raúl asked for you to wait. He wants to see you.” I went back into the theatre with her and waited.

A few minutes later, Raúl came down. When he saw me, his face lit up, he hugged me and said, “Stephanie! It is so good to see you! You ALWAYS remember my birthday!”

He said he was going back to his hotel and invited me to walk with him. We came out onto the sidewalk together and I assumed he would be mobbed by the crowd. But, oddly, although he made no effort to disguise his identity, no one recognized him. He walked right through clutch of people, softly saying “excuse me, excuse me” every few steps as they moved out of his way and continued watching the stage door for Raúl Juliá to emerge.

For the next half hour, Raúl and I walked and talked. He told me about his two sons and asked me about my life. I told him what I was doing, about my work as a lawyer and law professor, and my involvement with Bill Clinton’s presidential campaign.

I also told him how much his kindness had meant to me as a young, insecure, quirky girl and how his encouragement helped bolster my courage to pursue interests that made other kids think I was strange but helped keep me focused and out of the trouble that plagued and tripped up many of the kids who thought I was so strange.

“I’m so proud of you! I always thought you were special,” he beamed. “Even as a child, you had such a spark.”

When we arrived at his hotel, he hugged me goodbye and said, “Thank you for being such a good friend for so many years.”

And as he walked away, he turned and said, “Take care.”

I never saw or talked to him again. Less than three years later he was gone.

But not a day goes by that I don’t think of Raúl Juliá, the man with the kind, expressive eyes, sweet smile, musical voice, contagious, throaty laugh, and a heart large enough to hold in it an odd girl with more nerve than sense who called him up one day because she found his name in the New York phonebook.

So, Raúl, today, on your 82nd birthday, 50 years after we first met and 30 years to the day after I last laid eyes on you, I remember you, as always, and thank you for being who you were and still are to me.

And, I say to you, my friend: Take Care.

The statute of limitations for Trump’s obstruction crimes is not going to expire any time soon

Recently, some legal commentators have been ginning up their audiences by claiming the five-year statute of limitations for indicting Trump for the obstruction crimes identified in the Mueller report will run out in a few days. And now social media is flooded with people lamenting that, if DOJ doesn’t act before next week, DOJ will be forever barred from bringing obstruction charges against Trump for those crimes.

This is false.

Not only is the statute of limitations not going to expire next week – it won’t expire until early 2024 – bringing charges based on these early acts of obstruction would be a gross prosecutorial misstep.

Here are the facts and the law:

The federal statute of limitations for crimes that are “continuing violations” – i.e., carried out through a series of acts over a period of time – isn’t triggered upon commission of the first act, but only begins to run upon the completion of the last act in furtherance of the crime.

Conspiracy is specifically defined in federal statute as a “continuing violations” crime. Other crimes, such as obstruction (when not part of a conspiracy) are also continuing crimes if they are committed as a series of acts in furtherance of the crime. As such, the first act of the obstruction doesn’t start the statute of limitations running.

Trump clearly engaged in a conspiracy to obstruct the Russia investigation through a series of acts that began in 2017 and continued until the investigation ended in early 2019.  And even if it could be argued that he wasn’t part of a conspiracy but was a sole actor, his obstructive behavior still constitutes a continuing crime that can only be viewed as criminal when taken together. Therefore, the statute of limitation only began to run upon completion of the last act of his ongoing obstruction, which occurred in 2019 when the Mueller investigation ended.

This means the five-year statute of limitations on obstruction will expire in 2024, not next week.

And even if the statute had started to run upon completion of those early acts (which it didn’t), prosecutors could still use those actions as “predicate acts” to prove conspiracy to obstruct in a RICO case based on later actions.

While prosecutors could conceivably indict Trump now for his initial act of obstruction in February 2017 – asking Comey to stop investigating Flynn – doing so would be beyond foolish and counterproductive. This and other individual actions taken by Trump were not, standing alone, criminal since they were fully within Trump’s presidential power. Had he asked Comey to stop the investigation, Comey refused, and Trump did nothing more to obstruct the investigation thereafter, it would be impossible to prove that that one single act constituted criminal obstruction of justice. Only when tied in with other subsequent acts can it be established that those actions were part of a concerted effort, involving several actions and co-conspirators, to obstruct the Russia investigation.

No competent prosecutor in this situation would jump the gun at this point by charging the early acts as crimes. It’s not necessary to do so in order to avoid the statute of limitations that isn’t close to expiring, and such a case would surely get thrown out of court. And if it did somehow make it to trial, it would result in a quick and sure acquittal.

Not only is an immediate charge unnecessary to avoid the statute of limitations, but indicting Trump at this point on one or two counts of obstruction could severely undermine and probably destroy the ability to charge him with more serious offenses.

For example, if Trump were indicted and acquitted of obstruction charges for the limited early acts, prosecutors would be barred from later using those acts as predicate acts proving a more serious charge of obstruction within a pattern in, for example, a RICO charge. Early indictment would knock several important legs out from under the obstruction stool.

In addition, if DOJ indicts Trump based on that one act of obstructing the Russia investigation and he were acquitted (or even convicted), double jeopardy would prevent him from being prosecuted for the later acts related to his obstruction of the Russia probe. That’s because obstruction of the Russia investigation is the crime to be prosecuted. Acts such as asking Comey to shut down the investigation, and then firing him when he refused, are not crimes standing alone – it’s not a crime for a president to try to stop an investigation or to fire an FBI director. These acts are criminal only because they furthered the larger crime of obstruction.

Moreover and very important, if prosecutors were to charge Trump with a crime now before the investigation is over, Trump would be entitled by law to have access to all exculpatory evidence related to that charge. Because those early acts of obstruction are inexorably linked to Trump’s other, more serious criminal activity, prosecutors would be forced to turn over to Trump sensitive and critical evidence related to the larger investigation. The last thing the prosecutors need is for Trump to get his eyes and hands on this information while the investigation is still underway.

The bottom line is that, contrary to the incorrect information being spread by some legal commentators, many of whom surely know better, there is no danger of the statute of limitations on Trump’s obstruction of the Russia investigation expiring any time soon. Charging him at this point with obstruction based primarily on his actions in February 2017 out of a misplaced concern about the statute of limitations would be an unforced error.

“What am I doing here?” I thought as the train carried us from Krakow to Auschwitz.

The Holocaust has been a painful thing for me since I was a young child.  Probably because I grew up in a community surrounded by Holocaust survivors, it was very real to me.  It was seared into me by experiences such as witnessing a classmate cry and scream hysterically when our fifth grade student teacher, at a loss of what to do with us next, offered to teach us some German.  “The Germans burned my grandparents!  They burned my grandparents!” she wailed at the flabbergasted young woman, until the principal came and led her away. 

My friend’s father was our veterinarian and when we took our pets to him, I always wanted to ask about the green numbers tattooed on his arm, but my parents told me not to mention them. My “Aunt” Sophie with the thick eastern European accent, who claimed to be my Jewish grandmother, also had a csimilar tattoo. So did Al and his brother Harry, who owned the newspaper stand where we bought our papers after church.  Quite a few of family friends did, but we never talked about it.

I knew there was something sad and sinister about those tattoos, but didn’t know what.  And then I read the Diary of Anne Frank and found out. And it hurt.

Thereafter, references to the Holocaust were difficult for me to confront. While I managed to watch “Judgment at Nuremberg” I couldn’t bear to watch Schindler’s List or Boy in the Striped Pyjamas or Life is Beautiful, nor could I muster up the courage to visit the Holocaust Museum (I was able to get through the Children’s section).  Too painful.

So what in the world was I doing at Auschwitz?

I was in Poland, advancing a trip for First Lady Hillary Clinton. Among other things, we spent several days at a school for Jewish children, many of whose grandparents had been hidden by gentiles and whose families were now reconnecting with their religion, culture and heritage.

On a free day, I reluctantly agreed to visit Auschwitz and Birkenau concentration camps with two of my colleagues.  I really didn’t want to go, knowing my visceral reaction to the Holocaust, but I also knew I’d probably later regret not going, so there I was.

It was as awful as I’d feared. We heard the gruesome stories, looked through the glass windows at the bundles of hair, glasses and suitcases that told the story of people who believed they were simply being relocated, having no idea they were being sent to their doom.

We stood at the ovens and walked through the barracks where so many doomed souls tried to survive. 

As we looked over the field where the crematory killing factory had been (partially destroyed by the cowering Nazis before they ran away from their crimes), I saw something I wasn’t expecting.

Flowers.  Tiny wildflowers peeked through the grass.

And the sun. It was shining, the same sun that had shone on the inmates decades before.  Until then, all of my exposure to the Holocaust had been through photos and film – and only in grainy shades of black and white and grey. But here, even in this dark place, there was color and light.

Did the concentration camp inmates see these flowers and feel the sun’s warmth? Did the light sustain them or offer them any comfort or hope of survival. Were they able to grasp even tiny nuggets of life in the center of this horror?  

As I pondered this, I suddenly felt an incongruous wave of, not quite joy or euphoria, but something very uplifting and empowering and I found myself saying under my breath “You motherf*ckers didn’t win!” (sorry for the language, but that’s exactly what I said).

Yes. The Nazis killed a lot of people and caused unspeakable suffering. But in the end, they didn’t win. Their mission was not to just cause pain and suffering but to destroy a people. And in that, they failed. 

And they failed despite embodying the worst kind and degree of evil humanity can muster, coupled with and magnified by the most massive force and power theretofore unseen on this earth. 

But even with all of that, They. Did. Not. Win! 

Evil did not prevail.  Jews suffered, died, and were forever changed.  But the Jewish people survived and thrived. That most vicious, powerful evil empire could not stamp out a people, despite the almost unimaginable disparity in power.

I thought back to those little children at the Jewish school a world away in Krakow and smiled at the thought of how their very existence defies everything the Nazis fought so hard to accomplish. They are still here! They survived and they thrived, while the people who did this to them are on the trash heap of history.

We often ask why God lets this kind of evil exist in the world. But that day at Auschwitz, I felt I’d found, at least in part, an answer. Maybe it’s for us to learn that, although evil may exist, it doesn’t have to prevail. In the end, cruelty cannot snuff out the human spirit and, in the end, decency and goodness are far more powerful than hate.

And I had the answer to “Why am I here?”

For me, that was it. That was the lesson.

He told them NO.

One of the great blessings of my life has been that from moment I took my first breath until the second he took his last, my father loved me completely and unconditionally – and I knew it.

But it wasn’t until after he died that the depth and profundity of that love has fully begun to dawn on me. It was only recently that I came to realize how all that love was embodied in one word he said early in my life: NO.

Daddy was always my hero. He was also always old. Always. He was like the train pulling my caboose – no matter where we were on the track of life, he was always 33 years ahead of me. Therefore, he was always old,, regardless his actual age. When he was 36 and I was three, he was old. When he turned 40 and I was 7, he was old (actually ancient – I was sure old age would take him out at any moment after he hit that milestone). When he was 80 and I was 47, he was old. When he was 93 and I was 60, he was old.  He was just always old.

But after he died, that train unhitched and switched to another track. And while it stayed nearby and kept moving, it was no longer always and forever 33 years ahead of me.  His age and persona began to travel back and forth, with his age no longer attached to mine.  Where he was in relation to me depended only on what memory I had of him in the moment. Sometimes he’s older than I am, sometimes we’re the same age, and often he is younger, much younger.

This is most obvious when I look at photos of Daddy at different stages in his life. And looking at photographs of Daddy as a young, single father, I came to a startling realization.

From the time I could remember, I knew the story of how, after my mother’s death at her own hand, her parents and twin sister begged him to leave me with them to raise.

And I knew that despite their entreaties, he brought me back to Youngstown, Ohio where, with the help of his mother and sister, he raised me as a single father until he remarried five years later. I was happy and loved and well-cared for, surrounded by my attentive paternal and maternal grandparents, step-grandparents, aunts and uncles and cousins, and delighting in my special relationship with “my Daddy” as I usually referred to him to the annoyance of my cousins.

I knew it was a wonderful thing that he insisted on keeping me, despite their entreaties, when it might have been easier to turn over the responsibility to them. After all, in those days, it just wasn’t all that common for men to raise babies and no one would have thought ill of him if he’d left me in the care of his late wife’s family. I knew it wasn’t an easy choice, so I always appreciated and loved him for making it.

But looking at photos of him then has bounced me back into another time and place and made me see him in a new light.

When I look at these old photos, I don’t see Judge Jones or the general counsel of the NAACP or the erudite, wise father I knew as an adult.

Now I see a young man, who was born into poverty. A young man who, as a child, had few hopes of going beyond the Youngstown steel mills.

I see a young man who, as a teenager, idolized W.E.B. DuBois, never thinking that one day, he would marry the great man’s niece.

I see a young man who, as a 19-year-old Army private, sat in the balcony of Abyssinian Baptist Church listening to Rev. Adam Clayton Powell, Jr. preach, never conceiving that 15 years later, he would become a cherished member of the family of the man who hired Rev. Powell’s father to succeed him as the legendary church’s pastor.

I see a young man, the grandson of slaves, the first in his family to attend college, who had married into a family already into its fourth generation of college graduates. 

I see a young man who was nothing like the light brown scions of other affluent Black bourgeoisie families who vied to marry my mother (and her family) only to have her choose Daddy instead.

And it occurred to me how overwhelmed and insecure he must have felt in the midst of this family, a stranger who had married their daughter and then whisked her off to a faraway land called Ohio.

Within a year she was back in Los Angeles, with a newborn baby and crippling postpartum depression that no one knew quite what to do about, so they thought it best for her to return to be nursed by her family for a time, and return to Youngstown when she’d recovered.

Only she didn’t recover and she never returned. Instead, within weeks of her arrival, the darkness overtook her and when she couldn’t find her way back, she swallowed the pills and slipped away.

After the funeral and my christening the following day, my father prepared to return to Youngstown with me. But my mother’s family had another plan.

“Nate, dear. You can’t possibly raise a baby alone. You need to move on with your life. Please leave Steffie here with us,” my grandmother beseeched him – over and over and over, backed by my grandfather and my mother’s identical twin who believed with all her heart that she should raise her sister’s baby as her own.

And my father – not Judge Jones, but a 33-year-old man whose life had just fallen apart and who was surely swimming in grief and guilt and uncertainty – summoned the courage to look them all in the eye and tell them “No.”

He said NO. To the Grahams.

How was this young widower able to stand up to his late wife’s family like this?  Did he wonder if he was doing the right thing? What gave him the strength to defy them? How difficult was it for him not to just give in, put me in their arms, and run back to Youngstown alone, unencumbered by this strange little creature he barely knew?

I can think of only two things that gave him the ability: Courage and Love.

It turns out that Daddy was a badass who had the courage to push back against an elite and united family. And he loved me enough to fight for me. That love was strong and boundless and secure enough to do all this without bitterness or rancor, but to instead embrace my mother’s family and allow them to always be a part of my and his life. And to their credit, Nonnie and Pop Pop loved Daddy and me enough to let us get on that plane and fly away from them. But we never really left and, over the years, their love and admiration for Daddy grew and enriched us both.

Even after Daddy remarried twice, their bond with their son-in-law remained unbroken (to the consternation of my stepmothers, neither of whom was thrilled about having to explain to friends that these people who introduced themselves as her husband’s in-laws weren’t actually her parents).

Nonnie once told me that when they attended my college graduation, she saw Daddy watching me with tears streaming down his face. She put her arm around him and he turned to her and said, “Look at our little girl, Mother. We did it.”

When I later told Daddy what Nonnie had said, he scoffed and said, “Oh, your grandmother’s telling you a tale.” Which was Daddyspeak for “That’s exactly what happened but I’m not going to admit it.”

My grandfather told me more than once that, immediately upon meeting him, he knew Daddy was an exceptional young man who was more than worthy of his daughter. And that as disappointed as the family was that he took me with him, he also knew that his baby granddaughter would be just fine in this good man’s care.

As usual, Pop Pop was right.

When Daddy died two years ago today, he was mourned by presidents, friends, neighbors, colleagues and people he never even met. But perhaps more telling, he was also mourned by my late mother’s siblings and nieces and nephews, some of whom dropped everything and rushed across the country to say goodbye to their beloved Uncle Nate.

And of course, my sweet, courageous, remarkable father always was and always will be cherished and loved and appreciated by this baby girl he fought for in his darkest days and then never ever let go.

Happy Founders Day to the brothers of Kappa Alpha Psi, from the daughter and granddaughter of proud Kappa men.

My grandfather Lorenz Graham was a founding member of the Kappa Alpha Psi UCLA chapter where he pledged in 1924. Pop Pop loved to point out that every Kappa pledge at UCLA must know his name as a charter member before they can cross over.

The Good Judge pledged Kappa in 1949 at Youngstown State University and remained a true and loyal Kappa Man for the next 70 years. Being a Kappa was one of the great joys of Daddy’s life and receiving the Laurel Wreath, the Kappa’s highest honor, meant everything to him.

Their membership in the Kappas intertwined with and enriched my grandfather’s and father’s lives in countless ways and, to a considerable degree, helped to shape and define the remarkable men they became.

The paths of these two Kappa men crossed and then forever merged when, on a trip to Los Angeles to attend the 1957 Kappa Conclave, Daddy’s blind date was Jean Graham, Lorenz’s daughter.

When Jean told her father about her new beau, Pop-Pop was unimpressed. “A lawyer? Meh. Colored lawyers don’t make any money.”

But when she told him Daddy was also a Kappa, Pop-Pop changed his mind.

“The only reason I let Jeanie marry your father was that he was a Kappa man, so I knew he was worthy of her” he teased. Daddy corroborated the story, often reminding me that I owed my very existence to the Kappas.

Throughout the next decades, Daddy took enormous pleasure in being a Kappa, insisting that Kappa Alpha Psi was the only true fraternity – that the other Greek organizations were really just “clubs for young men who wish they could be Kappas but couldn’t make the grade.”

And whenever anyone made the grievous error of assuming he was any other Greek, he’d scoff and correct them: “No, I’m a FRATERNITY MAN.”

Occasionally, when he was feeling extra Kappa-ish, he was known to belt out Kappa songs at the dinner table.

“Oh, you must be a Kappa Alpha Psi, if you want to go to heaven when you die!” he’d warble as we all rolled our eyes.

When Daddy died two years ago this month, the local Kappa chapter asked to conduct a Chapter Invisible Ceremony at his visitation and, of course, I agreed.

I expected a short and sweet tribute from a few of the brothers from the local chapter, so I was flabbergasted as I watched them enter the church, stream down the aisle and gather around Daddy’s casket. They just kept coming. More and more and more. Young and old. I thought the procession would never stop. When they finally were in place, the entire front of the church was a sea of Kappa red jackets.

As the brothers sang and said the prayers that are part of the Kappa sunset ceremony, I was moved beyond words and expectation. I felt such peace and comfort in this heart-wrenchingly perfect moment because I knew how much my Daddy loved being a Kappa and this loving farewell from his Kappa brothers was exactly the sendoff he would have wanted.

Daddy often said he’d be a Kappa Man until the day he died. But that wasn’t quite true. He’ll be a Kappa Man for eternity.

So I wish a Happy Founders Day to the brothers of Kappa Alpha Psi, in memory of my father and grandfather. and thank you for being such an important part of my family’s life.

• 

• 

Dear Betty –

I wish I had written this note to you when you were walking around on earth, even if I wasn’t sure you’d ever see it. But now that you know the secret, I’m pretty confident you can also see/hear this story …

When I was little, my parents had no idea how to deal with my thick, naturally coarse hair, so my mother sent me to the neighborhood beauty parlor every two weeks and let B.J. handle it.

In those days, beauticians didn’t often style little girls’ hair, so I got the same treatment the adult women got: a scalp-searing permanent relaxer, followed by a brush roller set with curlers that cut further into that already-seared scalp, eight or nine hours under a 500 degree hair dryer (my tiny frame propped up on phone books so my whole head could fit into the head furnace while I read racy gossip and true crime magazines never available at home), topped off by a lot of teasing with a rat tail comb and a gag-inducing dousing of lacquer hair spray to achieve a shiny and glorious bouffant.

On my first visit, when B.J. turned my chair around to face the mirror for the great reveal (which wasn’t much of a reveal since he pretty much only did one hairstyle on all his customers), I carefully perused my reflection and proclaimed, “I look like Betty White!”

I didn’t understand why everyone in the shop, including B.J. and my mother, practically fell on the floor laughing since the reflection staring back at me DID look just like you, only smaller and browner.

And I was delighted!

Thereafter, whenever B.J. asked “what are we doing today?” Mommy responded “Her Betty White hairdo, of course.”

I’m pretty sure you would have thought it was a hoot that, back in the day, a 6-year-old Black girl was walking around Youngstown Ohio, as big as you please, proudly sporting your coif.

It never occurred to me to tell you this story, but now that I have, I hope it makes you smile or even gives you a chuckle.

And if it does, think of it as a heartfelt thank you for all of the smiles and laughs and joy you gave to the world, from the little girl with the Betty White hairdo.